HKSAR v. SO PO FAT

DCCC 1083/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1083 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to one offence of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap.374. You admitted the brief facts and I convicted you.

2.  The facts are as follows.  At about 5.40 am on 26 April of last year, To Chi-shing, PW1, was driving a PLB with 14 passengers on the second left lane southbound, Western Street, Sai Ying Pun, at 20 to 30 kilometres per hour.  The traffic lights at the junction with Des Voeux Road West were green, therefore he drove into the junction.  Another PLB, KB 5201, driven by you with five passengers suddenly appeared from the right along eastbound Des Voeux Road West at high speed.  PW1’s PLB struck the left side of KB 5201.  It then stopped after crashing into a lamp post with KB 5201 turned sideways some distance away.

3.  Miss Chan Hoi-yan, PW2, a passenger sitting behind PW1 confirmed that that PLB was not travelling at high speed.  When it approached the junction of Western Street and Des Voeux West she saw KB 5201 suddenly appear from the right at high speed and the two vehicles collided.

4.  At the time the weather was fair, traffic light and the road in good repair.

5.  Mr Sin Ching-keung, a pedestrian on Des Voeux West, heard loud braking.  He turned to his left and saw the two PLBs collided.  He saw the pedestrian crossing light on Des Voeux West was green with the vehicle traffic lights of eastbound Des Voeux West red.

6.  CCTV cameras at Western Police Station captured the PLB travelling along eastbound Des Voeux West jump the red light a second before the collision.  The traffic lights were functioning properly. 

7.  You told the police you jumped an amber light which resulted in the collision.  You were arrested for dangerous driving and you repeated the admission.

8.  Twelve persons including you and PW1 were injured.  PW2 and six other passengers suffered bruises or tenderness only and were treated and discharged.  Three passengers of KB 5201, Keung Chi-wa, PW4, who was 66, Au Pui-hung, PW5, who was aged 61, and Miss Chik Yuen-fong, PW6, aged 52, were kept in hospital.

9.  PW4 was managed in the surgical ward for his pneumothorax, suffering from spine fracture, multiple fractured ribs and left middle finger fracture.  He was an inpatient for 26 days.  His neck pain improved after 2 months, his fractured spine not recovered by late August 2012 so physiotherapy was recommended.  As of 11 September last the conclusion was that his work capacity could only marginally match his job demands as a security guard and he could only perform light duties.

10.  PW5 was found to have a 4 centimetre laceration to his forehead and the 6th cervical vertebrae and below was obscured.  He was fit for discharge on 3 May last year but his spinal canal was found to be deformed and narrowed.  Fractured left C7 posterior arch and left C7 transverse process and associated left C7/T1 facet joint dislocation was found and he was readmitted on 3 July of last year.  As of 14 September of last year PW5 still had mild neck stiffness, left intrinsic hand weakness and little finger numbness.  He was referred for gentle physiotherapy of his neck.

11.  PW6 was found to have suffered a fracture of medical malleolus of the left ankle and an operation was performed.  She was discharged on 20 May of last year and then walked with a frame.  As of June she still required painkillers to sleep.  By mid-August she was able to walk with a stick but limped and it was still swollen and painful.  She required sick leave from 26 April to 25 September of last year.

12.  In a cautioned interview you claimed the lights to be amber, you did not see the other vehicle.

13.  At my request the prosecution gave an update of the condition of the three victims.  That was less than satisfactory and I shall refer to that later.  However, what I was told was that PW4 was back at work as a security guard and was effectively recovered.  PW5 had to work from home and treatment was ongoing.  In respect of PW6, the prosecution asked me to accept that she was fully recovered in fairness to yourself.  Mr Yeung agreed with this information.

14.  At the time of the offence you were a man of clear record.  You then had one subsequent conviction for gambling which I will totally ignore.  However, you did have two fixed penalties, one of which was for disobedience of a road traffic sign.  However, I will not put much store on that.

15.  On your behalf Mr Yeung entered extensive and persuasive mitigation.  He is to be congratulated for that.  He submitted that all three victims were recovered or on the way to recovery.  I accept that.  He told me that you are 60 years of age, you have driven minibuses for 30 years, prior to which you had driven lorries.  He said that your record was good and again I accept that. 

16.  You are married, your wife is 58 and earns $12,000 per month.  Because of this offence you have retired.  Previously you had earned some $12,000 a month.  In 2011 your wife suffered a minor stroke and prior to that had cancer.  Fortunately she is now fully recovered.  You have two sons and a daughter and two grandsons, both aged 8.  Your daughter is the mother of one of your grandsons and she is a widow.  Mr Yeung told me that you had helped your daughter both emotionally and financially during the difficult period.  He submitted a letter from your daughter which I have read and considered.  He also produced a letter from a passenger who spoke well of your driving ability.  He told me at the time of the offence your mother suffered from cancer and has since died.  Also, that your younger son, aged 31, is a drug addict.  At the time of the offence he had breached his Supervision Order after DATC and was wanted by the police.  At that time he was in fact missing as far as you were concerned.  Subsequently he has been recalled to DATC. However, he is now released.

17.  Approaching the junction you were travelling at 30 to 40 kilometres per hour.  You last looked at the lights when you were a few private car lengths away.  You made an error of judgment not expecting them to change to red so soon. 

18.  Mr Yeung said that you were distressed and distracted by your family problems.  He reminded me that you too were injured in the crash, that you are of good character and this was an isolated incident. Along with the rest of your family your younger son is here in court to support you.  You had indicated a plea of guilty from the outset.  Mr Yeung said you have lost your mother and you were concerned for your wife due to the high risk of another stroke.  He urged me to consider making a Community Service Order and granting bail.  However, if that was not possible, I should consider the shortest prison sentence I could impose.  He had no representations to make on the question of disqualification as you did not intend to drive again.

19.  In view of your clear record and your somewhat complex family problems I adjourned for a probation officer’s background report.  However, I did express the view that the circumstances were such that I could not consider Community Service as appropriate and that prison was inevitable.

20.  That report is now before me.  I have read it and I understand you accept it.

21.  Mr Yeung had little to add today, it having all been said on the last occasion.  He simply pointed out the report was positive, that your family are present, and that the report supported what he had said. He also reminded me that it was your fondest wish to look after your family, especially your wife and grandson.  He urged me that if I felt prison was inevitable to impose the shortest period possible, and he wished to say nothing about disqualification as you did not intend to drive again.

22.  I turn now to the sentence.

23.  I do feel some sympathy for you.  You are a man of 60 who has a good record of driving, and indeed, for a professional driver, almost an exemplary record.  I accept at the time of this offence that you were under pressure from family problems.  Those problems were set out by Mr Yeung fully and confirmed by the probation officer’s report. 

24.  However, against that we have a very poor example of driving that left several people injured, three people gravely injured indeed.  Given what took place and that it involved two PLBs, it is fortuitous indeed that no one was killed.  It was you who took a conscious decision to run an amber light, which from the admitted facts was clearly red by the time that you passed through it.  That is an irresistible inference.  I note that having seen the light was amber you did not check again but simply proceeded through the junction. 

25.  The three people who were gravely injured have had their lives disrupted and suffered greatly as a consequence.  Fortunately it seems they are now either recovered or on the way to recovery. 

26.  It is a point of mitigation that you will not drive again, that you have retired, and this shows a level of remorse, and I can and do take that into account.  Also, it is a matter of mitigation that you make no representation as to length of disqualification which supports the previous statement.  I also note that from the outset you were entirely straightforward and co-operative with the police and that you have maintained a position of guilty throughout.  I note also that you enjoy the support of your family. 

27.  It is a matter of concern to this court the length of time it has taken to resolve this matter.  Why that is so is not entirely clear.  Partly it is certainly caused by the prosecution’s failure on the previous occasion on the day of plea to provide the adequate information I required.  Whilst it was not a lengthy adjournment, three weeks were lost, and it was only at the insistence of the court that phone calls were made and the matter was easily resolved.

28.  This is a case of serious miscalculation in driving.  It is certainly not a case where you had any intention to injure these people.  It is a case where I accept you are profoundly remorseful for what has taken place and that you do care for your family.  I also note the report was a very positive report, and I also note that you are a man of 60 with a good driving record. 

29.  I have taken into account all matters placed before me and I repeat that despite representations of your counsel that a prison sentence is in my opinion inevitable for this very poor piece of driving.

30.  Would you stand, please.  I take in this case a starting point of 21 months’ imprisonment.  That will be reduced to 14 months for your plea of guilty.  You will go to prison for 14 months.  You will be disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for a period of 4 years, and as I am now required by law, I make an order for the taking of a driving improvement course.