HKSAR v. CHU HUNG YAM

DCCC 440/2018

[2018] HKDC 1235

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 440 OF 2018

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REASONS FOR SENTENCE

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1.  A woman’s foot was rolled over by a taxi while walking along a dropped kerb pedestrian crossing on Pak Po Street, Mong Kok, one afternoon in November 2017.

2.  The defendant, being the taxi driver in question, pleaded guilty before me to one count of causing grievous bodily harm by dangerous driving, contrary to section 36A (1) of the Road traffic Ordinance. 

3.  The facts show that the defendant turning left from Yim Po Fong Street into Pak Po Street was actually a manoeuvre in direct contravention of a “No Left Turn” traffic sign.  To make matter worse, the defendant failed to give precedence to the female pedestrian, a nurse called Fiona Mak (47) who was crossing the road, and ran into her.

4.  The woman, unfortunately, had had a double whammy of first being hit and then having her right foot under the car wheel steadily. Miss Mak fell onto the ground and yelled for help while suffering from excruciating pain, the defendant got out to see what happened, then jumped back in to move the taxi backwards so as to relieve the woman’s suffering.

5.  The accident resulted in a broken shin bone – Miss Mak was admitted to a hospital for an operation and discharged after 22 days. At the time of discharge, her right foot was still numb. She was granted sick leave for 156 days in total.

6.  A victim impact report was submitted to the court just before sentencing, in it the victim tells the court that though she resumed duty in May 2018, she could not discharge her duties as well as before because she now has to take a rest after every 30 minutes of walk, but the job of a nurse requires constant checking on the patients. Her right foot is still numb and weak which has significantly affected her only hobbies – she has given up trekking and jogging altogether. Aside from that, there is no major issue.

7.  The defendant, aged 63, has no prior criminal conviction but insofar as traffic record is concerned, he has one conviction of careless driving back in 2008 for which he was fined $1,000 and three minor speeding.

8.  The defendant came from a big family, he is the fifth oldest among 8 siblings. He is a married man with no children; his wife, a Thai national, together with other family members are in court to show concern and support for the defendant.

9.  The court heard that the defendant had been a taxi driver for 30 years up to the time when the accident occurred. Ever since the accident, he has abandoned the idea of driving again, so he has tried to look for a care-taker job but in vain, and now he is out of job relying solely on his savings to live on.

10.  In the numerous letters from his siblings and other family members handed up to the court, they all tell the court how good a person the defendant is; how filial he was as a son in taking care of his aging sick mother (99) who passed away in July this year.

11.  In his letter to the court, the defendant stated that he was racked by feelings of guilt for causing the victim enormous pain and suffering and making her life miserable, he was sorry and had written to the victim to apologise for all this.  He lost his father at the age of 13 and entered the workforce thereafter; he was taught by his mother all along to earn his living by honest means, and he had done so for all these years by being a law-abiding citizen.

12.  Counsel for the defendant initially put forward that it was the passenger on the taxi who was partly to blame for the accident in that the bad-tempered passenger had been hurrying him up to get to the destination and swore at him at times, which in some way affected his attention on the road.

13.  Upon further probing by the court, it turns out that this is the first time the defence have mentioned it; in other words, there isn’t any such reference to that effect during the police investigation – not in the cautioned statements nor in any witness statements. 

14.  I have indicated to the defence that given the evidence before the court, I am not prepared to accept such an assertion, and expressed willingness on my part to hear further evidence, but defence counsel said there wouldn’t be any further evidence.

15.  Defence counsel stressed that given the defendant’s 30 years of experience as a professional driver, his traffic record with only one conviction of careless driving and a few minor speeding is almost unblemished – the defendant could properly be considered a good driver. This was a one-off incident, counsel said, it’s unlikely he would reoffend because the defendant has decided not to drive anymore after the accident. And for this reason, counsel asked the court to consider some non-custodial sentencing options.

16.  The accident, in my view, could very well have been avoided, had the defendant done his duty as a driver – to observe the traffic rules.

17.  First of all, let me describe briefly the layout of the road where the accident happened. Yim Po Fong Street (dual carriageway) and Pak Po Street (one-way) forms a T-junction; on Pak Po Street right at the intersection, there is a dropped kerb allowing pedestrians to cross Pak Po Street, which runs parallel with Yim Po Fong Street.

18.  The northbound traffic on Yim Po Fong Street cannot turn left into Pak Po Street but it allows the southbound traffic to turn right into Pak Po Street, so when the defendant made a left turn against the traffic sign, he was immediately entering the area of the dropped kerb crossing on Pak Po Street.

19.  The defendant is an experienced taxi driver for 30 years, plying his trade in the streets of Hong Kong for a long long time, I am sure he knows his ways around when driving a taxi. At the time of the accident, he was carrying a passenger, and for reasons best known to him, he chose to make a left turn into Pak Po Street against the sign.

20.  Judging from the photographs depicting the position of the taxi on the road after the accident, the collision with the pedestrian occurred in the middle of the road. This would indicate that the pedestrian must have walked the street halfway through before she was hit.

21.  As the evidence before the court shows that the pedestrian was crossing Pak Po Street from left to right (using the taxi driver as the reference point), and her right foot was rolled over by the left front wheel of the taxi while it was turning into Pak Po Street.

22.  The pedestrian wouldn’t have expected a vehicle coming from this direction against the traffic sign, and there is no evidence either to suggest that the defendant had ever given her any warning like honking his horn. The natural course of events in the circumstances was that the pedestrian carried on crossing the road. On the other hand, the defendant, being the traffic violator, should have been more alert to the possibility of danger and watched out for the unwary.  

23.  It is clear from the evidence that just the moment before Miss Mak was hit by the taxi, she had already got to the middle of the road, so when the defendant was turning into Pak Po Street, he must have seen her and must have realized that his taxi would cross her path.  

24.  Instead of giving way to the unwary pedestrian, Miss Mak, the defendant drove on and hit her. Clearly, when deciding to move on, the defendant had taken a risk which was later proved to be dangerous. And this is a deliberate disregard for the safety of other road users and this is where the aggravation of the case lies.

25.  The offence of Section 36A carries the maximum of 7 years’ imprisonment and mandatory suspension of driving licence in the case of a first offender for not less than 2 years in the absence of special reasons.

26.  Considering all the mitigation and for the reasons given above, I take 15 months as starting point, reduce it to 10 months to reflect his timely plea. As there is no reason for further reduction in sentence, the defendant is therefore sentenced to 10 months’ imprisonment.

27.  As far as disqualification is concerned, defence counsel agreed that there exists no special reason for not making the order, I therefore order the defendant to be disqualified for a period of two years. In the next two years, the defendant is not allowed to hold or obtain driving licence of any class, and of course he is not allowed to drive either.

28.  The defendant is also ordered to attend the “Driving Improvement Course” at his own costs within the last 3 months before the expiration of the disqualification order. Failing that, he may not be able to collect back his driving licence.