HKSAR v. CHU WING YIN CHRISTINE

DCCC 452/2018

[2018] HKDC 1458

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 452 OF 2018

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Reasons for Sentence

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

2.  The accident, as it was described, occurred at a pedestrian crossing.  It was on Gascoigne Road, northwest bound, near the junction of Gascoigne Road and Chi Wo Street in Yau Ma Tei.

3.  The defendant was driving a private car and she struck a number of pedestrians on the pedestrian crossing.  Two of the pedestrians received injuries which can be properly described as causing grievous bodily harm.

4.  There is some description of the road condition layout and it can be seen from the CCTV recording which I have viewed.  The road itself is described as a six-lane two-way carriageway.  This is a dual carriageway.  It bends to the right.  There is a speed limit of 50 kilometres per hour.  The pedestrian crossing is controlled by traffic lights.  There is a safety isle between the two carriageways.  Everything was functioning perfectly as I understand it.  It is noticeable from the CCTV that the pedestrian crossing emerges from underneath a road flyover and to a certain extent shields the driver from viewing pedestrians.  The road in the absence of the pedestrian crossing, is a dual carriageway.  It is an urban road on which I would say that drivers are expected to maintain a certain speed.

5.  The accident occurred in the morning of 3 November.  It is described as the vehicular signal turned red.  The defendant ignored the traffic lights in her direction and drove forward towards the pedestrian crossing.  She did not slow down.  The conclusion must be that she could not have been paying a proper lookout to the road ahead.  At a late stage the pedestrians emerged and had walked a few steps onto the pedestrian crossing, which is when the defendant’s vehicle impacted with the pedestrians.

6.  The defendant, when she was questioned, said that she was travelling at a speed of about 50 kilometres per hour.  Her memory was of the traffic light being green and driving forward, and being aware that pedestrians were stepping onto the carriageway.  She immediately applied the brake and hit some pedestrians.  The CCTV camera is in line with the defendant’s recollection of what occurred save that the traffic light was red rather than green.

7.  There is a car camera, which I said I have viewed, which gives us some assistance.  The red overhead traffic light is described as coming into view at 0748 and 20 seconds.  The first pedestrian is seen to enter the crossing at 24 seconds, some 4 seconds later.  The impact would appear to occur sometime between 25 and 26 seconds.  The car coming to a halt at 27 seconds, which must mean that braking had started to occur some time roundabout 24 to 25 seconds.  What is apparent from my description of the timing here is that this junction provides very fine margins, and that was my impression from viewing the CCTV.

8.  A driver travelling at roundabout 50 kilometres an hour will take 2 seconds, about 2 seconds to react, after they have seen the light and another 2 seconds or more to bring the car to a halt safely.  Now, there were some 5 seconds from when the light came into view.  As I said, there are fine margins in this case.

9.  The medical conditions of the injured persons is admitted.  Two people were badly injured.  One still has some paralysis.  As we can expect, the defendant had a zero reading for breath alcohol.  The vehicle’s speed from the footage I viewed was roundabout the speed limit for the road.

10.  Those are the bare facts.  They do support the charge of causing grievous bodily harm by dangerous driving to which the defendant has pleaded guilty to.

11.  The defendant is a young lady.  I have reports on her.  She is now 34.  The reports are very favourable to her.  She has employment.  She is a degree holder, a BA from City University, has worked in human resources.  I have received testimonials from various people such as employers and relatives.  She has, as a result of the accident, suffered some post-traumatic stress disorder.  She has also had some difficulties with her own health.  She is a member of the Red Cross.

12.  The conclusion of a background report is that - which was taken when she was on remand for this offence - it describes her as unpretentious and well-mannered young lady.  She, as a result of further inquiries, is found to be suitable to, despite the problem with post-traumatic stress disorder, is suitable to serve a community service order.  I have obtained a psychiatric report on her and she is found to have no psychiatric problems at all.

13.  So at present the defendant is employed as a human resources administrator at Asia Pacific and I did have a recommendation from them.  She works, and is still working for them, as I understand.  They describe her as warm-hearted, helpful and optimistic.

14.  The other letters I have emphasise her remorse for this offence, her good character and her willingness to accept responsibility.  She has given up driving.  It would appear the stress of driving is too great for her at present.

15.  Finally I would say she is a person with a clear record and the descriptions I have had of her would tend to suggest she is not a particularly experienced driver.

16.  I will turn to the approach to sentencing for offences of this nature.  It is a serious offence because people are badly injured in these cases and it is made more serious and enters the category of dangerous driving because the bad driving occurred on a pedestrian crossing.  Drivers are expected to exercise greater care and attention as they approach and go into pedestrian crossings.

17.  The courts themselves have repeatedly emphasised the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving and the Court of Appeal in the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 sets out a list of factors the court should take into consideration.  Courts must look at the overall circumstances, the overall culpability of the offender.  In assessing the overall seriousness of this crime, culpability is the dominant factor.  The courts do not count the number of aggravating or mitigating factors and then arrive at the sentence.  The court must take into account the overall picture in order to arrive at a proper and appropriate sentence.

18.  In the case of Secretary for Justice v Lam Siu Tong, that is [2009] 5 HKLRD 601, the Court of Appeal said it hardly needs reminding motorists are required to exercise the utmost care when approaching pedestrian crossings.  In Secretary for Justice v Wong Wai Hung [2011] 2 HKC 224 it was said the message has to be driven home that the court take a very serious view of accidents on pedestrian crossings.  And also it had been said in other cases the courts must bear in mind principles of retribution, deterrence, denunciation.  It must consider the hardship caused to victims’ families as a result of the injuries as well as their grievances of resentment.

19.  Turning, as the Court of Appeal emphasised, to culpability and the overall picture as they describe it.  I remind myself that not all pedestrian crossings are the same, not all accidents at pedestrian crossings are the same.  Every junction provides different challenges to a driver.  Some are easy to negotiate where there are long-distance views of the pedestrians and the crossing.  Some can be tight and difficult where pedestrians come into view late in the day.  But all these kinds of junctions are existent in Hong Kong and the courts must individualise the sentences and approach to take into account the multiplicity of different factual situations the driver can find themselves in.

20.  There is no complaint about the defendant’s speed that she was driving at here.  It would appear to be within the speed for the road.  What she has failed to do is notice the condition of the vehicular traffic light she was approaching.  She registered the existence of the pedestrians late but my viewing of the CCTV shows that the existence of the pedestrians was disguised by the road flyover that they were coming out from under - The red light comes into view some 5 to 6 seconds before impact if the car is driven on the speed limit, which given that the car would take at least 4½ seconds to bring to a halt, provides a fine margin.  A driver in a way has to exercise extra care and attention on this junction.  Also it is a junction in a dual carriageway which when it is not a pedestrian crossing, it is a dual carriageway.  Because of that there can be no traffic calming measures on approach; there are no speed bumps, no narrowing of the roads or chicanes to slow traffic, there are no what are described as rumble strips which also slows traffic  There are no traffic calming measures.  Logically there cannot be at a junction like this because one of the functions of this road is to keep traffic moving.  As I said before, it requires an extra level of attention and care by the driver and unfortunately this driver failed to do that at that time.  This does not provide evidence of a deliberate disobedience of the red light or excessive speed but does show a lapse of attention for a number of seconds, which in a junction like this can lead to tragic consequences.

21.  The defendant is a young person.  She has her life before her.  She has worked hard and served the public as much as she can do.  I believe that she deserves a chance to work off her responsibility for this accident in the community rather than in a prison.  She is eminently suited for community service, meeting all the requirements of the law and all the requirements of the probation services as I understand from the probation officer.  I consider this is one of those rare and exceptional cases where a different approach from the usual can be taken to sentencing.

22.  What I should do in respect of this defendant is order that she serve a total of 200 hours of community service for this offence.  She will also be disqualified from driving for a period of 4 years. She will also have to take and complete a driving improvement course at her own expense within the last 3 months of that period of disqualification.

23.  Now, Miss Chu, there are some requirements of a community service order you must consent to.  You are going to have to provide 200 hours of unpaid work to the community.  You must do that within the next 12 months.  You will do it at the direction of a supervising officer.  You must also keep the peace and be of good behaviour generally.  You must attend in accordance with the directions of your supervising officer and must complete the work that is given to you to the satisfaction of the supervising officer within the time allocated to it.

24.  If you have any difficulty doing that - and difficulties can arise for a number of reasons, for example ill health or the like - if you have any difficulties it must be reported to your supervising officer and also back to the court so consideration can be given if any amendment of the order is required.

25.  Do you understand the general requirements of this order?

DEFENDANT: Yes.

26.  If you breach any of the conditions of the order or you commit any further offence punishable by imprisonment in the course of your performance of the community service order, you could be brought back to this court and sentenced again for this offence, for the offence for which you have been originally convicted.  Do you understand that?

DEFENDANT: Yes.

27.  Do you consent to perform the work as I have described to you?

DEFENDANT: Yes.

28.  Do you understand the nature of your disqualification for driving?

DEFENDANT: Yes.

29.  You are not to drive for the next 4 years.

DEFENDANT: Got it.

30.  And you cannot resume driving till you have passed the driving improvement course.

DEFENDANT: I do understand.

31.  All right, you will be required to sign a form which sets out the details of your community service order.  You must read and understand that form before you sign it.

DEFENDANT: Understand.