HKSAR v. LEUNG YIU CHEUNG

DCCC 379/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 379 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of causing grievous bodily harm by dangerous driving.

2.  The proceedings arise as a result of an accident which occurred at the junction of Mody Road and Mody Lane in Tsim Sha Tsui at approximately 10.35 am on the morning of Sunday, 21 October 2012.  At the time of the accident, the defendant was the driver of a large public single-decker bus.  Both Mody Road and Mody Lane are dual carriageways with Mody Road forming the top of a T-junction with Mody Lane. 

3.  The defendant was intending to turn right into Mody Lane from Mody Road.  He stopped at the traffic lights controlling that junction but whilst the traffic lights governing his lane were still on red, he proceeded to make a right turn and collided with a taxi proceeding in the opposite direction.  The taxi was pushed across the road onto the nearside pavement.  It flipped over onto its roof and came to a stop next to the side of a building with the defendant’s bus on top of the taxi.  The taxi-driver and a passenger sustained injuries.  The taxi-driver was seriously injured.

4.  Before the accident, the defendant had been proceeding in a north-easterly direction along the second lane, a right-hand-only-turn lane, on Mody Road, intending to turn right into Mody Lane.  The first lane is for use by vehicles intending to travel straight ahead at the junction.  There are two sets of traffic lights controlling the two lanes.  The traffic lights are mounted on a central reservation between the two lanes. 

5.  As the bus approached the junction both sets of traffic lights were showing red for vehicles proceeding in the same direction as the defendant.  The defendant was stationary in the right-hand lane, intending to turn right into Mody Lane, and the traffic lights for vehicles travelling straight on along Mody Road changed to green.  The traffic lights governing the defendant’s lane remained on red.  The defendant proceeded through the traffic light against the red signal and collided with the taxi. 

6.  The taxi-driver sustained serious injuries to his head and neck.  Cervical spine examination showed the presence of midline tenderness with no external wound.  A CT scan of his spine showed a fracture at C5 right lamina extending to the inferior facet with minimal displacement.  A CT scan of his brain showed bilateral temporal scalp haematoma with no obvious fracture or haemorrhage seen.  The overall clinical diagnosis of the taxi-driver was acute traumatic fracture of the cervical spine and central cord syndrome.  He was subsequently admitted to the orthopaedic unit of Queen Elizabeth Hospital for further management.  He was hospitalised for 31 days and eventually discharged on 21 November 2012.

7.  A female tourist was sitting in the rear passenger seat of the taxi.  She sustained multiple injuries, including swelling and tenderness to both thumbs, lower back, upper chest and a fractured little finger.  She was admitted to St Paul’s Hospital where she underwent surgery and was discharged the following day.

8.  There were independent witnesses to the accident, one of whom saw the bus driving into the intersection and saw that the traffic lights governing the straight-ahead direction of Mody Road had turned to green whilst the traffic light signal for vehicles to turning right remained on red.  He saw the defendant drive the bus against the red signal into the section and collide with the taxi, and he saw it being pushed forward.

9.  Mechanical reports show that the bus and the taxi had no mechanical defects.

10.  The defendant was interviewed under caution, and he claimed that he waited for approximately one minute and started the bus after the traffic lights had turned to green.  He also claimed that the taxi suddenly appeared he said he immediately applied his brakes but could not explain why the bus still pushed the taxi onto the pavement.

11.  In a subsequent video-recorded interview, when asked as to whether there was any arrow sign at the relevant set of traffic lights governing the path, he said he could not tell.  He only knew that the bus collided with a vehicle at that time.  He did not see specifically what type of vehicle it was until after the accident.

12.  The defendant has convictions recorded against him but they were some considerable time ago and I ignored them for sentencing purposes.  As regards traffic convictions, however, I noted that he had traffic matters recorded against him.  He were fixed penalty tickets for speeding in 2011 twice, in July 2012 and March of 2013.  That last being after the date of this accident.

13.  In mitigation, I was told that the defendant is genuinely remorseful about this offence and has pleaded guilty to the offence, not only saving court time but I note that one of the victims in the case is a foreigner, so saving the unnecessary inconvenience of that person having to come to court.

14.  The defendant says in relation to the accident that at the time he stopped at the junction, both sets of lights were on red, controlling the traffic proceeding in a north-easterly direction along Mody Road.  When the traffic lights for traffic going straight ahead turned to green, he then started to move forward, having failed to notice that the traffic light controlling his lane remained on red.

15.  He said what happened then was that having seen the taxi at the last minute proceeding towards him, he panicked and stepped on the accelerator rather than the brake, and it was this panicked reaction which caused the taxi to be pushed across the road and flip onto the pavement.

16.  The defendant lives with his family.  He has mother and elder brother living there and four siblings.  I am told that the defendant is divorced and he has a fiancée whom he intends to marry once his outcome in respect of these proceedings has been resolved.

17.  A number of letters have been submitted in support of the defendant.  He is described as being a very responsible person, a filial son and a hardworking son.  His employer describes him as a hardworking driver who gets on with his employees and he was kept on by his employer notwithstanding his involvement in this matter.

18.  In dealing with cases such as this, one notes that obviously road accidents can cause immense human suffering.  Vehicles are potentially lethal machines, and those who are in charge of vehicles must bear in mind the duty they owe to other road users. 

19.  As the Court of Appeal said in the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, since sometimes there may be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect.  The standards required by the law for motorists are there to ensure that all who come into contact with motor vehicles, including the drivers, passengers in the defendant’s car and pedestrians, are safe.  While it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving, the offender might not necessarily be seen in quite such a benevolent light. 

20.  In deciding the appropriate sentence for cases such as this, the court should take care not to be overwhelmed by the outcome. It is the culpability of the defendant which is the dominant factor.  Whilst the impact on the injured person and his family is a relevant sentencing consideration, it must be remembered that the defendant did not intend to cause the injuries which the victims sustained.  I am told that he is now extremely remorseful, and I have no reason not to accept that.

21.  As cases of this type go, I accept that this is not a bad case of its type.  However, it is a case of dangerous driving resulting in what could have been fatal consequences.  One of the victims was very seriously injured, and the damage caused by the accident was extensive.

22.  However, in this case, there was no evidence of prolonged driving in any dangerous or reckless manner by the defendant.  There were none of the aggravating features which are identified in the English case of R v Cooksley.  There is no evidence of aggressive driving on the part of the defendant.  It is not a case of excessive speeding.  It is not a case involving any prolonged driving with no regard for the safety of others. The duration of the dangerous driving was short.  The defendant was not under the influence of drugs or alcohol, and there is no indication that the vehicle was not properly maintained.

23.  The acts of the defendant are serious in this case and clearly more than simply careless because he was in a situation where the utmost care was called for.  This is a busy junction in the middle of Tsim Sha Tsui where one can expect lots of vehicles and pedestrians. In fact, the junction has a number of pedestrian crossings.  It is a situation where drivers have to show the utmost caution.  His driving manner fell far below the standard expected of a competent and careful driver in all the circumstances.  And as a consequence of this failure to pay proper attention, the taxi-driver in particular was seriously injured and his passenger also sustained injuries.

24.  The maximum penalty for this offence is a sentence of 7 years’ imprisonment and 2 years’ disqualification.  For the reasons I have previously stated, I accept that this is at the lower end of the spectrum in terms of seriousness. 

25.  I have also considered the case which has been submitted to me by defence counsel, the case of HKSAR v Lee Yau Wing CACC 282 of 2012 also involving a failure to observe traffic lights but, in my view, the facts and the culpability revealed in that case are more serious than the case which is before me today.

26.  Having considered all the circumstances and having considered the mitigation that has been entered on behalf of the defendant, I have decided that the appropriate starting point is a sentence of 12 months’ imprisonment, and that will be reduced by one-third to reflect the defendant’s guilty plea.  He will go to prison for 8 months for this offence.

27.  He will be disqualified from driving for 2 years, and he must undertake and complete at his own expense a driving improvement course.

28.  Stand up, Defendant.  Defendant, I am required to explain to you the effect of the disqualification.  You are disqualified from driving for 2 years.  If you drive within that period after your release from prison, you will commit an offence of driving whilst disqualified.  If you are convicted of that offence, you will almost certainly be sent by to prison.  Do you understand that?  And before driving again, you must complete a driving improvement course.  Do you understand that?

DEFENDANT: Yes.