HKSAR v. POON WAI LUEN

DCCC 676/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 676 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of ‘causing grievous bodily harm by dangerous driving’. Particulars are that he on 1^st January 2017, at the junction of Long Ping Road and Fung Chi Road, drove taxi KS5370 dangerously, causing grievous bodily harm to Ms Lam Wah-yau.

Summary of facts

2.  The incident happened at 6:47am on 1st January 2017 at the junction of Long Ping Road and Fung Chi Road. The road was lit with streetlights at the time of the incident. The weather was fine and the road was dry. Traffic was sparse. The speed limit for the relevant section of the road was 50 km/h.

3.  Ms Lam, who at the time was 56 years old, was riding her bicycle on the pavement parallel to Long Ping Road when she approached the pedestrian crossing at the junction with Fung Chi Road. Since the pedestrian light was green, she proceeded to turn right from the pavement and ride on to the crossing.

4.  Meanwhile, the defendant was driving his taxi along Long Ping Road towards the crossing. Ms Lam was crossing from left to right from the perspective of the defendant’s approaching vehicle.

5.  Despite the traffic light controlling the defendant’s approach being red, the defendant did not slow down and continued to drive through the crossing.

6.  In doing so, the taxi rammed into Ms Lam, whose bicycle had reached the middle of the crossing at the time of impact.

7.  Ms Lam was thrown off the bicycle and injured. Aside from abrasion wounds, she sustained a fractured shaft of the right fibula (the outside leg bone between the knee and ankle) and was put in a leg cast. Operations were later performed for the reduction, internal fixation and insertion of screws to the fractured bone.

8.  Ms Lam was hospitalized for 16 days and was given 170 days of sick leave.

9.  Car camera of the car behind the defendant’s taxi captured the incident. The footage show that the traffic light for vehicles approaching the pedestrian crossing had all along been red right up to the time of collision of the taxi with Ms Lam’s bicycle.

10.  The defendant claimed at scene that the traffic light was green when he crossed the pedestrian crossing. The defendant repeated this claim at the Police station when he was interviewed under caution. He also claimed that he was driving at 30 km/h. He said that the traffic light was green when he was 25 meters from the crossing, but the light changed to red when the taxi was about 5 to 6 meters away. The defendant claimed that the bicycle suddenly emerged from his left when he drove past the crossing.

11.  Upon being shown the said car camera footage, the defendant admitted that he did not pay attention to the traffic light at the time.

Previous convictions

12.  The defendant is of previously clear record. He is also of clear traffic record, save for 10 fixed penalty convictions.

Mitigation

13.  The defendant is 64. He was born in Hong Kong and educated up to primary 6 level.

14.  In 1973, the defendant emigrated to Holland and worked as a kitchen worker there. He retired in 2009 and returned to Hong Kong.

15.  Since returning to Hong Kong, he started work as a security guard. In 2015, he began working as a taxi driver, earning about $13,000 to $15,000 per month. The defendant is still receiving benefits from the government of the Netherlands at about HK$5,000 per month.

16.  He now lives alone in Lok Ma Chau, in an old property inherited from his father. The was divorced in 2000. All his children and his ex-wife live in the Netherlands.

17.  After this accident, the defendant is mentally distressed and did not drive anymore. Mr Lee pointed out that the defendant started driving in 1974 and had all along been a good driver.

18.  Mr Lee told the court that at the time of the incident, the defendant’s mind was troubled because of the driving improvement course that he was going to attend the following day. Mr Lee said the defendant committed the offence out of momentary inattentiveness.

19.  3 letters were submitted in mitigation. They are written by the defendant, his brother and a friend respectively. They all speak to the fact that the defendant is a good man and a good driver, asking for leniency.

20.  Mr Lee urge the court to consider the defendant’s old age, the fact that he committed the offence out of momentary carelessness, and the fact that he had learnt a lesson when sentencing and to be lenient.

Maximum sentence

21.  Under s.36A(1)(a), the maximum sentence on conviction upon indictment for this offence is a fine at level 5 and imprisonment for 7 years.

Sentencing principles and consideration of the defendant’s culpability

22.  The Court of Appeal in the case of HKSAR v Lee Yau Wing, CACC 282/2012 stated that the 3 applicable principles in sentencing of causing grievous bodily harm by dangerous driving cases are retribution, deterrence and denunciation.

23.  In Lee Yau Wing, the applicant pleaded guilty to causing grievous bodily harm by dangerous driving and was sentenced to 10 months’ imprisonment after plea.

24.  There, the accident occurred at 11:34am on a day in October 2011. The applicant was the driver of a private motor vehicle and was travelling uphill towards a road junction that was controlled by traffic lights with a yellow striped pedestrian crossing. The speed limit was 50 km/h, the weather was fine and traffic flow was light.

25.  The victim, a 75 year old lady, started to cross at the pedestrian crossing when the green pedestrian light was flashing. When she reached the second lane of the road, her knee was struck by the applicant’s vehicle and she fell to the ground. Evidence showed that the applicant had run the red traffic light.

26.  The victim had injuries to her right leg and suffered a fracture of her right knee. She was treated by open reduction and internal fixation operations.

27.  According to the cautioned statement of the applicant, he was driving at about 40 km/h before the accident. His view of the pedestrian crossing was obstructed by the mini-bus that was in the first lane on his left when he emerged into the crossing. As a result, he did not see the victim’s presence on the crossing.

28.  Having identified the applicable principles referred to above, the Court was of the view that, “39. If the judge bears the principles of retribution, deterrence and denunciation in mind when considering the appropriate level of punishment for the offender then the sentence that he imposes should be a balanced, proportionate and just one. In this way the courts will contribute to the important objective of “maintaining public confidence in the sentencing system.”

29.  In assessing the culpability of the applicant’s driving, the Court of Appeal found that ‘there is no doubt that the fact that the accident occurred on a pedestrian crossing controlled by traffic lights and whilst the lights were red for drivers, prima facie raises the level of the culpability of the applicant’s driving.”

30.  The Court, after acknowledging the sparsity of evidence in relation to the facts contained in the summary of facts on which the applicant’s plea of guilty was based, proceeded to find that the applicant knew that the traffic lights were red and that his vision of the pedestrian crossing was incomplete.

31.  The Court viewed the applicant’s refusal to bring his vehicle to a stop as follows:

“it reveals a wilful refusal to stop at the crossing and a deliberate risk‑taking in allowing his vehicle to edge forward onto the crossing. Such conduct, we have no doubt, exhibits a conscious disregard for the traffic lights and for those pedestrians who might be using the crossing and brings the quality of the applicant’s dangerous driving into the serious category.”

32.  The Court found that in the ‘very unusual circumstances’ of that case, the applicant’s driving misconduct was serious but it was in the middle to the lower end of the range of seriousness. The learned trial judge’s 15 months’ imprisonment starting point was upheld.

33.  Mr Lau for the defendant seeks to rely on two District Court cases to persuade this court to deal with the defendant by way of a Community Service Order.

34.  In the case of HKSAR v Luk Wai Keung [2016] HKCU 2529, the defendant suffered from sleep apnea, which caused him to run into the victims. The learned trial judge found that the defendant was not in breach of any traffic regulations, and sentenced the defendant on the basis of the accident having been caused by a momentary lapse of concentration, after classifying the defendant’s driving as being at the low and minor range of seriousness.

35.  That sentencing basis is entirely different to our present case and the case should be distinguished.

36.  In the case of HKSAR v Lee Yeung Chi, Richard [2017] HKCU 1734, the learned trial judge found that the accident was due to the defendant’s failure to stop at a pedestrian crossing regulated by traffic lights. The learned judge sentenced the defendant on the basis that the defendant had failed to notice the vehicular traffic lights and the presence of the victim at the crossing. He found, however, that there was no evidence to show a deliberate disobedience of a red light by the defendant or driving at an excessive speed. The learned judge accepted that there was a momentary lapse of attention on the defendant’s part, and dealt with the defendant by way of a Community Service Order.

37.  Again, the factual basis for sentencing in that case is different to ours and I find that that case should be distinguished.

38.  I turn now to consider the facts in our present case.

39.  Here the incident occurred at a pedestrian crossing. Unlike in Lee Yau Wing, there is nothing to suggest that the defendant did not have a complete view of the pedestrian crossing upon his approach. There is also no evidence to suggest that the defendant had been distracted by anything on the road or otherwise.

40.  In fact, according to the car camera video footage, although there is a slight left bend, the defendant would have had an unobstructed and clear view of the crossing from quite some distance. The sky was lighting up and visibility was very good.

41.  It can be seen from the footage that the brake lights of the taxi actually lit up when it got to the red lights (time frame 00:54). They stayed on for about 3 seconds while the taxi continued to move forward and pass the first set of traffic lights and there was a flicker (00:54-00:57), but the brake lights quickly came back on for about 4 seconds and then they were off (00:57-1:01). By this time the taxi had gone past the first set of traffic lights and was approaching the yellow lines of the pedestrian crossing. 1:01 is also the same time that the bicycle can be seen in the footage. Given the advanced position of the taxi at that time, the defendant would have had no difficulty seeing the bicycle had he been paying proper attention.

42.  We can then see the bicycle moving across the pedestrian crossing from left to right. At around 1:03, the brake lights were lit again and the collision happened soon afterwards. The brake lights remained lit until the taxi came to a complete stop.

43.  I find that the brake lighting pattern of the taxi when it approached and then went through the first set of traffic lights proves that the defendant was aware that the traffic lights controlling his passing of the junction was red, and that he was aware that he was in fact driving through the red lights when he did so.

44.  It was not a case of the defendant being unaware of the lights being red. He had chosen to disobey the red light and continued to drive forward. I refuse to accept the proposition put forward by Mr Lee, which is that the defendant was such a careful driver, he was braking to slow the vehicle down when he was crossing the junction. If that was the case, he could not have not seen the victim’s bicycle which was right in front of his vehicle to the left. The only reasonable inference is that he knew he was going through the red light and so he wanted to be careful about any oncoming traffic from his right. But he had entirely forgotten about the pedestrian crossing.

45.  Having gone through the red lights, he somehow failed to see Ms Lam’s bicycle crossing the road, despite the unobstructed view he had and the good visibility of the crossing at the time. The dangerous manner of his driving then caused the collision of his taxi with Ms Lam’s bicycle.

46.  I find that the defendant had exhibited a conscious disregard for the red traffic light when he chose to ignore it and continued to drive through and onto the crossing.

47.  There is, however, evidence from the defendant himself to suggest that he was travelling within the speed limit. Also, as can be seen from the video footage, the defendant did apply the brakes when he went through the red traffic light, suggesting that he did slow his car down. This, I find to a limited extent, would mitigate the defendant’s culpability.

48.  The fact remains that the defendant had disregarded the red light, despite slowing down, and drove on through to the pedestrian crossing and hit the bicycle, which is still seriously dangerous driving manner.

49.  Similar to Lee Yau Wing, it is fortunate that our victim Ms Lam did not suffer more serious injuries than she had.

50.  Nevertheless, I find that given the seriousness of the defendant’s dangerous driving and the need to deter and denounce this kind of driving, an immediate custodial sentence is necessary.

51.  Taking into consideration all the circumstances of the case, I find that the defendant’s driving misconduct is in the middle of the range of seriousness within the serious category, being slightly more serious than that of the applicant’s in Lee Yau Wing (see the case of Secretary for Justice v Lam Siu Tong[1], as applied in the case of Lee Yau Wing).

Sentencing starting point and discount

52.  Based on the non-permanent injuries suffered by Ms Lam (I am told that Ms Lam has fully recovered and is back to work), the defendant’s unblemished criminal and traffic record, balancing them with the degree of culpability of the defendant’s driving, I find that an appropriate starting point is that of 15 months’ imprisonment.

53.  I find that the only mitigating factor is the defendant’s timely guilty plea. For this, he is granted the full one-third discount.

54.  The defendant is, therefore, sentenced to 10 months’ imprisonment.

Disqualification

55.  Pursuant to s.36A (2), the defendant is disqualified from driving for a period of 2 years.

Driving improvement course

56.  Pursuant to s.72A(1A), the defendant is ordered to attend and complete a driving improvement course, at his own cost, within the last 3 months of the disqualification period.