HKSAR v. LEE PAK KONG

DCCC 79/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 79 OF 2014

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REASONS FOR SENTENCE

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1. Defendant pleaded guilty to a charge of “Causing grievous bodily harm by dangerous driving”, contrary to section 36A of the Road Traffic Ordinance, Cap 374.

2. The offence took place at a light-controlled pedestrian crossing.  The defendant drove a light goods vehicle, and the victim is a 48-year-old lady and is a domestic helper by occupation.

Summary of facts

3. The traffic accident occurred at the Eastbound of Boundary Street, Kowloon City, Kowloon.  The location is a three‑lane carriageway with a speed limit of 50 kilometres per hour.  Outside No 175 of the Boundary Street, there was a light‑controlled pedestrian crossing with yellow stripes on the ground.

4. At about 2.30 pm on 1 July 2013, Madam Rong Mu-ding, PW1, wanted to cross the road from the right to the left at the light-controlled pedestrian crossing.  She noticed that the pedestrian traffic light regulating the yellow-striped pedestrian crossing turned green and she started to cross the road.  Immediately after she started walking and stepped onto the third lane of the road, she was knocked down by a light goods vehicle, CN 788, which was driven by the defendant.  PW1 then fell onto the ground.  A report was made to the police and PW1 was immediately sent to the hospital for treatment.

5. This accident was witnessed by two pedestrians, PW2 and PW3, who were waiting to cross the road at the pavement opposite to PW1.  In particular, Cheng Ka Yan, PW3, saw the light goods vehicle approaching PW1 at the speed limit of 50 kilometres per hour.  However, the light goods vehicle did not reduce its speed before it knocked down PW1.  PW3 also saw a taxi stopping at the first lane when PW1 started to cross the pedestrian crossing.

6. Upon arriving at the scene, SPC 52299, PW4, found the middle front part of the light goods vehicle was damaged.  He found the CCTV camera installed on the light goods vehicle and he then seized the micro SD card of the camera. 

7. Upon inquiry, the defendant claimed that:-

(a) the traffic light against him was green and therefore he continued to drive through the white line and then the pedestrian crossing;

(b) it was PW1 who suddenly dashed out from his right; and

(c) he immediately applied the brake but his vehicle still hit PW1.

8. Subsequently, upon examination of the micro SD card, the police found a deleted video clip and the video footage was retrieved.  The retrieved footage showed that:-

(a) The defendant was driving towards Boundary Street prior to the accident. He then drove onto the third lane of the Eastbound.

(b) Before the light goods vehicle reached the pedestrian crossing and when the light goods vehicle was about five to six taxis away from the pedestrian crossing, the traffic light against vehicles turned from amber to red.

(c) At that time, PW1 was already standing on the pavement which was on the right side of the light goods vehicle, and there was a taxi stopping before the white stopping line in front of the pedestrian crossing at the first lane of the Eastbound.

(d) The speed of the light goods vehicle was steady. However, it did not reduce its speed upon reaching the pedestrian crossing, and it then knocked down PW1, and

(e) The traffic light against the light goods vehicle was red at the time when it knocked down PW1.

9. PW1 suffered from various serious injuries as a result of the accident. She was admitted to the Queen Elizabeth Hospital for emergency treatment.  Upon medical examination, she was found to have sustained the following injuries: subarachnoid haemorrhage, bilateral pneumothorax, respiratory failure and multiple fractures over the body.  Emergency operation was performed on 1 and 8 July 2013.  She was discharged on 23 July 2013 from the intensive care unit and she was transferred to the Kowloon Hospital for a course of rehabilitation.

10. At the material time, typhoon signal No 3 was hoisted, the road was wet and the traffic was light.  No mechanical defect was found on the defendant’s light goods vehicle.  There is no suggestion that the traffic lights were not functioning properly at the time of the accident.

Mitigation and sentencing considerations

11. Defendant is 35 years old and has a clear criminal record.  He has been licensed to drive since 1998.  For traffic offences, he has had a few fixed penalty convictions and one conviction of careless driving in 2004 for which he was fined $1,100.

12. Defence counsel, Ms Priscilla Lam, informed me that the defendant is married with two children.  His wife is a housewife and she has been suffering from post-natal depression after the birth of the first child in 2009 and is receiving regular treatment since 2010.  Defendant’s son is 4 years old and he was diagnosed to have autism when he was 23 months old.  The daughter is now 1 year old and she was only 6 months old at the time of the offence.  Both of the defendant’s parents are retired and they both suffered from depression and they attended hospitals for treatment on a regular basis.  The defendant would make financial contribution to his parents.

13. During the proceedings, unfortunately, the defendant’s father passed away.  The defendant worked as a driver and delivery worker since 2005, earning 8,000 to $10,000 per month.  Owing to the present accident, he ceased to be a driver and he is now working as a delivery worker.

14. Ms Lam explained that the date of the accident was a public holiday.  The defendant took up the delivery work for a printing company.  He woke up very early at around 2:30 am and he started working at around 3:30 am to pick up the printing materials.  He started to deliver the printing materials around 5 am to various different locations in Hong Kong Island and Kowloon.  After lunch, the defendant called his friend and enquired about the destination to drop off the materials.

15. At around 2 pm, the defendant started to drive the light goods vehicle. At that time, typhoon No 3 was hoisted.  The defendant, I was told, was worried about his wife and he was not sure whether she could be able to look after the children especially her post-natal depression seemed to have aggravated after the birth of the daughter.

16. Ms Lam said the defendant was not sure about the routes so he rang up his friend to ask and he was talking to him using a hand-free device whilst he was driving.  When he was approaching the pedestrian crossing, he could not see the lights and he was driving at a speed of around 40 to 45 kilometres per hour.  As a result, he knocked down PW1. 

17. Ms Lam submitted that the defendant is truly remorseful and accepts full responsibility for his act.  The reason that he committed the present offence was because he had momentarily lost his concentration as he was not familiar with the route and he was thinking about rushing home to see his family.  It is submitted that the defendant was not in conscious disregard of traffic lights as his culpability was that he failed to concentrate on his driving and kept a proper lookout.

18. Ms Lam acknowledged that PW1 was hospitalised for two months but she submitted that she can now handle her daily life independently.

19. A number of mitigation letters were placed before me during mitigation. I am not going to refer to their specific contents.  Suffice it to say that their contents are duly noted.

20. The Court of Appeal in the SJ v Lam Siu Tong [2009] 5 HKLRD 601 held:-

“It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: it is highly likely that people will be crossing the road there, whatever the time of day or night. Accordingly, if motorists approach pedestrian crossing at high speed, or disregard traffic lights, there is a high risk that an accident will occur. Thus, we are of the view that where the offence of dangerous driving causing death is established and this involves the running over of persons at pedestrian crossing, then, for the purpose of sentencing, it would be a serious aggravating feature that the accident has occurred in such a location. The degree of seriousness will of course depend on the precise circumstances. For example, a conscious disregard for traffic lights will likely put the case into the most serious category.”

21. In recent years, the courts have repeatedly emphasised the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving on pedestrian crossing.  In SJ v Wong Wai Hung [2011] 2 HKC 224, Tang Ag CJHC commented that:-

“We must drive home the message to drivers that the court takes a very serious view of accident on pedestrian crossings.”

22. The maximum sentence for the present offence is a fine of $50,000 and imprisonment for 7 years.  The injuries sustained by PW1, as said, are indeed very serious.  Emergency operations were conducted in the intensive care unit both on the date of the accident and in the week that followed.  PW1 was hospitalised for 16 days and then transferred to the Kowloon Hospital for rehabilitation.  In total, she was hospitalised for more than two months before she was able to be discharged.  It has been nearly one year since the accident.  With the passage of time, there was some improvement in her conditions but the road to her full recovery is still far-away.  She still has to walk with quadripod though stable.

23. I have obtained updated medical reports and also her witness statement for sentencing purpose.  The Hong Kong Eye Hospital confirmed that as a result of the injury to her left eye, the left visual acuity was only 0.5 and there was residual left enophthalmos which I understand to be “a sinking backward of the eyeball into its eye socket”.  She has received day hospital training after her discharge from rehabilitation.  There was improvement noted in the motor balance and walking.  In her last outpatient visit, she complained that she had mild headache and she was also noticed to have poor memory, bad mood, slow in mentation and slow response. 

24. There are also psychological impacts of the accident.  In particular, she has difficulty in abstract and verbal reasoning, visual and auditory attention as well as processing speed.  In view of PW1’s cognitive functioning, she was diagnosed as inadequate to take up her previous job and she required some assistance in performing daily activities.

25. I am also aware that, as indicated in her witness statement, PW1 told the court that she was feeling so unhappy as she was unable to work anymore and she would not travel and visit her aged-old mother in the mainland.  She was afraid of going out by herself.  She was fearful for the tools for transportation in general.  Based on the evidence before me, I can see that this accident has changed her life drastically.  I can see the pain and suffering as well as the inconvenience that PW1 has experienced arising from such injuries. 

26. The cause of this accident is the defendant’s driving through the red-lighted pedestrian crossing which is a serious aggravating feature according to the Court of Appeal.  Although the defendant has a hitherto decent background and is a good husband and responsible father, the offence he committed is a serious one and cannot be treated lightly. 

27. I have called for a background report for the defendant and I can understand the traumatic effect of a prison sentence that would have on him and his family.  However, the court must send a proper message as required by the Court of Appeal to the general public that motor vehicles can be lethal and that drivers must show their responsibilities for their acts on the road.

28. In sentencing the defendant, I bear in mind the facts of this case, the injuries and the effects on PW1, the case authorities and also the mitigation made on behalf of the defendant.  Absent any exceptional mitigations, I rule that an immediate custodial sentence is unavoidable. 

29. Here, I accept that the defendant’s conduct was not exhibiting a conscious disregard for traffic light and the safety for the others.  I take the view that this case falls within an intermediate bracket of culpability. In the deleted video clip which I had the opportunity of viewing it in the court, I could hear that the defendant was persistently talking over the phone albeit by a hand-free device with someone, asking for direction on the road. The fact that the defendant did not reduce his speed at all before the collision strengthened the submission that he was not aware that the traffic light against him was already red. 

30. At the material times, the defendant’s attention was obviously diverted and distracted to look for the name of the street and the road signs shortly before approaching the pedestrian crossing.  I accept therefore the defence submission that the defendant committed the present offence because he had momentarily lost his concentration as he was not familiar with the route and therefore failed to keep a proper lookout. 

31. I may also add that the reason for this is also because his attention had been distracted because he had prolongedly and exceedingly talking over to the phone while he was driving. 

32. If this present collision did not occur on the pedestrian crossing, I judge that the proper starting point for the present offence should be one of 15 months, taking into account the consequences to PW1.  However, as held in HKSAR v Lee Yau Wing CACC 282/2012, the fact that an accident occurred on a pedestrian crossing controlled by traffic lights and while the lights were red for driver prima facie raises the level of culpability of the applicant’s driving.  Therefore, I am of the view that it puts the case into a more serious capacity which warrants a further increase of the starting point by 3 months.

33. In Lee Yau Wing, the applicant was sentenced by the District Court to 15 months’ imprisonment upon a plea of guilty.  The facts of that case, however, were very unusual.  While it also took place at a pedestrian light-controlled crossing, the driver in that case was proceeding at a very low speed of only 15 kilometres per hour. 

34. Another aggravating feature of this case which I must not overlook is the conduct of the defendant during and after the accident.  As recognised in the English case of the R v Cooksley [2003] 3 All ER, I find that there are two aggravating factors identified in this case.  Firstly, the defendant was driving while unavoidably distracted by the use of a mobile phone.  As I have said, although I accept that the defendant did use a hand-free device when talking over the phone, it still distracted his attention to the prevailing road conditions.  If he really had to ask for directions, what he should do is to pull over his light goods vehicle by the roadside and then talk to the phone.

35. The second aggravating feature in this case as identified by the case Cooksley is his false claiming to the police that PW1 was responsible for the crash by her sudden dashing out to the pedestrian crossing.  One can see that what he claimed to the police officers arriving at the scene was in complete contradiction to what had been revealed in the images as shown in the deleted video clip.

36. For this purpose, I have inquired with Ms Lam if the defendant had anything to do with the fact that the video clip was deleted.  The defendant gave Ms Lam instruction that he did not delete the video.  I have made it clear to the defence that I am not prepared to accept this bare assertion for its face value. 

37. I therefore call upon the defence to consider whether to call the defendant or any other witness to testify on this matter.  In the end, the defendant chose to go to the witness‑box and he explained to the court that shortly before the police officers had arrived at the scene, he had unplugged the CCTV camera from the vehicle and he had no idea whether this would have the effect of deleting the video clip from the CCTV camera.  He repeated that he did not deliberately delete the video clip.

38. I was told in submission that the prosecution is content with this explanation.  In the end, and as such, I am going to give the defendant the benefit of the doubt.

39. Taking into consideration of all these aggravating factors, another 3 months must also be added to his sentence, making the starting point after the aggravation one of 21 months’ imprisonment.  A one-third discount is given for the defendant’s guilty plea, reducing the sentence to 14 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, the sentence I shall pass is one of 14 months’ imprisonment.

40. In addition to the imprisonment, I make a disqualification order for holding or obtaining or driving for a period of 2 years.  I also order the defendant to complete a driving-improvement course at his own expense within the last three months of his disqualification period.