HKSAR v. CHENG CHUNG YUEN (ALSO KNOWN AS CHENG MAN LEUNG)

DCCC 642/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 642 OF 2015

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Reasons for Sentence

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

2.   This accident happened on 25 January 2015 at about 7 pm at a traffic light controlled pedestrian crossing.  This was near a junction of an exit slip road of Cotton Tree Drive going into Garden Road, Central.

3.   The photographs, MFI-1, stills from a CCTV, show the position and the crossing itself very clearly.  The CCTV footage comes from the American Embassy which was on the opposite side of the road pointing towards the accident pedestrian crossing.  The slip road towards the pedestrian crossing is downhill and bears right into Garden Road.

4.   Having viewed the CCTV itself, the victim, a pedestrian, was waiting to cross the road and in fact does cross against the pedestrian lights.  Halfway across the first lane, he is hit by the defendant’s taxi which enters the pedestrian crossing.

5.   The experts say, and the defendant agrees, that when the defendant’s taxi drives into the pedestrian crossing, the light had already just turned red.  His first response to the police who arrived was that he saw the light turn from yellow to red but could not stop in time.  In fact, the CCTV footage shows that his vehicle stops almost immediately after it hits the victim.  The rear of the taxi is still on the pedestrian crossing when it comes to a standstill. 

6.   I accept that the defendant when he drove his taxi at this moment had not sped up to jump the red light.  If he had sped up to jump the red light or had been going too fast, he would not have been able to stop so quickly or stop on the pedestrian crossing. 

7.   On the CCTV footage it is clear that as soon as he stops, the defendant jumps out of his taxi and with the help of another person carries the victim from the middle of Garden Road to the side of the road.

8.    I have been told in the facts that the victim was a 47-year-old man, and as a result of the accident he suffered certain injuries.  The most serious being a displaced fracture of the left tibial plateau, that is a fracture of the tibia and the knee joint.  He had to have surgery involving inserting a metal plate and screws.  About a year later, they were removed.  He also suffered other injuries such as a chipped tooth, an abrasion wound over his right elbow and tenderness over the occiput of his head.   

9.   The facts do not say if he has made a full recovery or give an assessment as to whether he has or will make a full recovery.  However, the victim has said that he still does not play sports that he used to enjoy before the accident.  He can not yet run or jog.  He still experienced some pain, I assume, in his leg whilst going up and down stairs. He is having some memory issues.  When it rains, he suffers from rheumatoid pain.  The accident now was over a year ago, but he still has medical appointments to follow up with neuro surgeons, urologists and orthopaedic doctors.  At the moment, he perhaps cannot be said to have fully recovered.

10.   The facts say, and the defendant agrees, that the dangerous driving in this case is that he drove through red lights onto a pedestrian crossing.  But, as I have said, and I repeat, I accept this is not a case of the defendant as a driver seeing a red light and deliberately jumping it.

11.   The defendant’s plea of guilty is his best mitigation. 

12.   By way of background, the defendant is 59 years old and has been a professional driver, a taxi driver, for nearly 40 years.  He is a married man with three children; his youngest is still a student.  His wife is a housewife, and his wife and daughter still rely on him financially.

13.   The defendant’s own mother is 89 years old and also relies on him financially and recently has also relied on him physically because she broke her leg in a fall and requires daily care which the defendant himself has undertaken.  I have also been told that she was recently re-admitted into hospital.  

14.   The defendant himself has health issues, in particular, heart disease, diabetes and a cholesterol problem. 

15.   The defendant is not a man with a clear record.  He has 10 previous court appearances starting in 1976, as far back as 1976.  Although he has these criminal records, this is his first dangerous driving conviction.

16.   He does, looking at his traffic convictions, have two previous careless driving convictions, one in 2006 and the second in 2013.  Both offences were dealt with by a fine.  He has many other traffic convictions, but many of them relate to taxi driver charges, or rather charges that relate to taxi drivers. 

17.   The focus of sentencing a case such as this is usually to consider the culpability of the dangerous driving manner. Cars are lethal and can ruin lives.  The burden of care upon a driver is very high.

18.   Looking at the facts here, Mr Boyton quite rightly agrees that there is an aggravating factor because the accident occurred on a pedestrian crossing and has referred me to the authority of Secretary of Justice v Lam Siu Tong [2009] 5 HKLRD 601.  That authority reiterates that it can be a serious aggravating factor when an offence occurs at pedestrian crossings.  Drivers have to approach all such crossings with extreme care. 

19.   Mr Boyton has also referred me to the authority of HKSAR v Lee Yau Wing [2013] 1 HKC 572.  The facts of that case are almost identical to the facts of this case.  In that authority the defendant drove onto a pedestrian crossing against a red light albeit slowly. In that authority, the victim crossed when the green man was flashing.  Here, the victim crossed when the man was red meaning pedestrians should not cross yet.  In that authority, the vehicle hit the victim and caused grievous bodily harm.   That driver’s view was obstructed to some extent and he was going uphill. 

20.   In my view, the facts of that case are slightly less serious than the facts of this case.  In that authority, the Court of Appeal said the appellant’s driving manner was in serious category, in the middle to the lower end of the range of seriousness.  The same must apply in this case.  The Court of Appeal upheld a starting point of 15 months in that authority.

21.   Mr Boyton has also submitted that in the authority of R v Richardson [2007] Crim LR 315, it can be a specific mitigating factor when a driver behaves responsibly and takes positive action to assist at the scene.  And, as I have said, on the CCTV, the defendant clearly jumps out immediately to help the victim and move him to one side of the road.  His actions are what I would expect any driver to take, but it is a positive action nonetheless. 

22.   Defendant, please stand up. 

23.   I take into account the facts of this accident, the CCTV footage which shows how the accident occurred.  I take into account mitigation put forward.  And, as I have said, I accept that the defendant did not deliberately drive through a red light.  I also take into account the defendant’s plea, the authorities I have been referred to and the injuries that the victim suffered.  I take into account that it seems he has almost fully recovered. 

24.   Having taken all those factors into account, I am going to take a starting point of 18 months.  I reduce that starting point by 3 months for the defendant’s actions that he took immediately after the accident occurred.  That will reduce the starting point to 15 months. 

25.   Defendant has pleaded guilty, he is entitled to a discount of one-third for that plea.  After that discount is applied, the defendant for this charge is sentenced to 10 months’ imprisonment. 

26.   According to the Ordinance, I also order you be disqualified for a period of 2 years from driving any class of vehicle. That disqualification period is effective from today. 

27.   Defendant must also attend a driving improvement course at the defendant’s own expense within the last 3 months of the disqualification period.  You will not get your licence back if you do not attend such course.  Do you understand the sentence?

DEFENDANT: Understand.

28.   Let me tell you one more thing although I am sure you are aware as a professional driver, but if you drive whilst disqualified, that in itself is a serious offence.   You are not insured whilst disqualified and if, arrested, driving whilst disqualified, you will face a further term of imprisonment.

DEFENDANT: Understand.

(Discussion between court and counsel)

29.   So I amend my ruling made earlier. Disqualification period does not run from today, it should run from the day of your release from your term of imprisonment.