HKSAR v. WONG PUI HANG

DCCC 1163/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1163 OF 2013

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REASONS FOR SENTENCE

1. Wong Pui Hang you have pleaded guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Chapter 374 and one charge of failing to display “P” plate while driving, contrary to regulations 12K and 46(2) of the Road Traffic (Driving Licences) Regulations, Chapter 374.

2. In summary at about 0722 hours on the 14 June 2013 whilst the holder of a probationary driving licence you drove your father’s light goods vehicle without displaying the “P” plates at the front and rear of the vehicle.  As you were travelling southbound on the Tai Wo Service Road West you knocked down a 12 year old boy on a zebra crossing. 

3. The impact of the collision sent the young boy crashing into the metal railings beyond the crossing.  The young boy sustained severe multiple injuries including multiple rib fractures; multiple fractures of the right arm; fracture of the left arm and multiple fractures of the right leg with complete exposure of the distal stump.  Full details of the injuries are set out in the medical report of Dr Bobby Ng dated 6 March 2014.

4. The young boy was hospitalized for 89 days during which time he underwent emergency operations followed by five more operations on the most severely injured region of his right leg.  There is a risk of growth disturbance to the right leg with future deformity of the right knee and limb shortening which may necessitate further operations.  The young boy requires follow up medical attention till skeletal maturity.  Not surprisingly he has suffered post-traumatic stress disorder as set out in the psychiatrist’s report dated 14 March 2014 and the father’s statement dated the 28 March 2014. 

Dangerous Driving

5. Whilst there has been much discussion between the court and counsel as to the basis on which the plea to dangerous driving is entered I have no doubt that your driving fell far below what is expected of a competent and careful driver and was obvious to a competent and careful driver that driving in that way would be dangerous.  I do not accept this was momentary inattention as you say in your letter of mitigation. 

6. The section of Tai Wo Service Road West was largely a straight road with very slight curvature.  The zebra crossing is marked with flashing yellow beacons; black and white stripes and zigzag lines. The crossing is clearly visible from more than 50 meters away where there are road signs indicating the possible presence of pedestrians on, adjacent to or crossing the road 50 meters ahead together with the road marking “SLOW” painted in both English and Chinese.  The view of the zebra crossing in the direction of travel can be seen in the photographs submitted to court in particular photographs 21, 22, and 28-36 with the road signs and road marking seen in photographs 30-33. 

7. The road signs warn you that there may be pedestrians crossing or waiting to cross the road.  The road marking SLOW indicates potential danger ahead and the need to proceed with caution.  Regulation 31 of the Road Traffic (Traffic Control) Regulations gives precedence to every pedestrian on a zebra crossing.  The Road Users’ Code makes clear that when approaching a zebra crossing a driver should look out for pedestrians waiting to cross, particularly children, the elderly, the disabled and people with children.  The driver should be ready to slow down or stop to allow the pedestrian to cross.  Warning is also given to look out for pedestrians crossing the road across the zigzag lines. 

8. You told the police as you approached the zebra crossing you did not slow down and only noticed the presence of the young boy when you were about one and a half vehicle’s length (6.9m) from the boy who suddenly took a big step onto the road.  You told the police you were driving at a speed of about 50-60 kph whereas the speed limit is 50 kph. 

9. The father of the young boy states that before signalling his son to cross the road he checked to see whether any vehicles were approaching the zebra crossing.  On seeing there was no vehicle he waved his son to cross the road.  Travelling at a speed of 50 kph would take about 3.5 seconds to cover the 50 meters from the road signs to the zebra crossing.  The fact that you were not visible to the father when he checked before signalling his son to cross the road is indicative that you were travelling at a speed in excess of the speed limit.  On the other hand by reference to where you say you first saw the young boy and where you finally stopped this indicates you may have been travelling at a speed just below the speed limit. 

10. As everything happened in seconds one cannot be sure of your speed.  Mr Leung on behalf of the prosecution very fairly concedes that the evidence of the father does not suffice to say that you must have been driving in excess of the speed limit.  Nevertheless driving at a speed very close to the speed limit on approach to the zebra crossing was, as accepted by Mr Boyton on your behalf, driving too fast in the circumstances, in particular considering you failed to notice the presence of the young boy until it was too late to avoid the accident. 

11. At the time visibility was good and traffic was light there being no other vehicle heading in the same direction apart from the taxi.  Whilst there are railings beyond the zebra crossing there are none ahead of the crossing which may have obstructed your view of the young boy (see photographs 16-18).  Had you heeded to the warnings given by the road signs and road markings by slowing down as you approached the zebra crossing you would have seen the young boy with sufficient time to avoid the accident.  

12. I should also add that at the time of the accident it was cloudy but not raining.  The road surface was slightly wet and was in good repair.  Whilst noting already that visibility was good there has been no suggestion in mitigation that the weather conditions in any way contributed to the accident. I however note the letter from your mother-in-law states that at the time of the accident the weather was bad and that due to rain your vision was blurred and the road surface was slippery.  If this is correct even more reason why you should have slowed down on approaching the zebra crossing.

13. In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death.  These factors were revised in R v Cooksley [2003] RTR 32.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

14. In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, a case of dangerous driving causing death, the Court of Appeal said at paragraphs 19 and 20

“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 crossings 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 crossings, then, for the purposes 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.”

15. This was applied in Secretary for Justice v Wong Wai Hung [2011] 2 HKC 224 where the Court of Appeal said that it was necessary to have in mind a deterrent effect when sentencing in cases involving accidents on zebra crossings (see in particular paragraphs 19, 21, & 23-25 of the judgment).

16. I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving(see HKSAR v Lee Yau Wing CACC 282/2012, paragraph 31).  This principle was repeated in Secretary for Justice v Lau Sin Ting CAAR 3/2010 where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice (see paragraph 36 of the judgment).

17. Mr Boyton refers the court to the case of Lee Yau Wing and the starting point of 15 months imprisonment where there was a conscious disregard for traffic lights.  The circumstances of that case were however described as “very unusual”.  That the degree of seriousness depends on the precise circumstances of the driving can be seen from the case of HKSAR v Lui Chung Tak CACC 221/2012 where a higher sentence was said to be appropriate notwithstanding the court held the driving was not a conscious disregard for traffic lights.  

18. The fact the accident happened on a zebra crossing is a serious aggravating feature.  I am satisfied by failing to slow down when approaching the zebra crossing but instead travelling at a speed close to the speed limit as a result of which you failed to see the presence of the young boy waiting to cross the road until it was too late to avoid the accident, you showed a selfish disregard for the safety of other road users.

19. The young boy has sustained very serious injuries for which he may have permanent deformity.  Whilst the impact on people’s lives is to be taken into account when sentencing the Court of Appeal in Secretary for Justice v Poon Wing Kay said that in assessing the overall seriousness culpability is often the dominant factor. In considering the degree of injuries sustained I also note that said in Lui Chung Tak that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence.  In my view this is one such case where the injuries do have an impact on sentence.

Mitigating factors

20. In passing sentence I take into account everything said on your behalf by Mr Boyton together with the content of the background report and the letters of mitigation from your family.  I accept that you are remorseful for what happened especially as you are a father of two young sons.  That you and your family have suffered stress after the accident is clearly borne out in the background report.

21. I also take into account that you have a clear traffic record.  This however must be viewed in context that you had been driving for less than a year under a probationary driving licence.  Mr Boyton submits this inexperience is to be taken into account in assessing your culpability.  You may well have inadequate driving experience however little experience is required to realise you should comply with road signs and road markings to slow down when approaching pedestrian crossings. 

22. I cannot give you credit for a clear criminal record as you have a conviction in 2004 for theft for which you were given a suspended sentence.  I do however take into account that was 10 years ago and since that time you have reformed yourself getting married, working hard and bringing up a young family. 

23. At paragraph 28 of his written submission Mr Boyton seeks to place some responsibility on the father and the son for the accident.  I am satisfied that the young boy and his father are in no way responsible for the accident thereby reducing your culpability.  The father having checked there was no vehicle approaching when he waved his son to cross cannot be said to be responsible for what happened.  As noted earlier precedence is to be given to every pedestrian on a zebra crossing.  On your own account having failed to notice the presence of the young boy until very close to the crossing you were unable to avoid the accident because of the speed you were travelling. 

24. Taking into account that the offence took place at a zebra crossing; you failed to slow down as you approached the crossing driving at a speed close to the speed limit which was too fast in the circumstances; you failed to see the presence of the young boy waiting to cross until it was too late to avoid the accident; and the serious injuries sustained by the young boy, I am satisfied that the proper starting point after trial is one of2 years and 6 months imprisonment.  

25. Giving you full credit for your plea of guilty you are convicted and sentenced to 1 year and 8 months imprisonment.

Disqualification

26. There is mandatory disqualification of not less than 2 years for causing grievous bodily harm by dangerous driving unless the court for special reasons decides not to make such an order.  I find there are no special reasons not to order you to be disqualified.  Taking into account the circumstances of the driving I am satisfied that a period of 4 years disqualification is appropriate. 

27. You are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years.  

28. Section 72A(1A) of the Road Traffic Ordinance provides that a court shall order a person convicted of causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order. 

29. The offence of causing grievous bodily harm by dangerous driving incurs 10 points.  Regulation 12L of the Road Traffic (Driving Licences) Regulations provides that the Commissioner for Transport shall cancel a full driving licence if the licence holder is convicted of an offence incurring 10 points which was committed during the probationary driving period.  Your full driving licence issued on the 2 September last year will therefore be cancelled. 

30. My understanding is that you must sit for and pass a driving test again to obtain a new probationary driving licence and only after you have satisfactorily completed the new probationary driving period will you again be eligible to apply for a full driving licence.  The fact you will have to sit for and pass a driving test again I am satisfied amounts to special reasons not to order you to attend and complete a driving improvement course. 

31. I should also point out that you may be required to hold a learner’s driving licence again before being allowed to take a driving test.  The obtaining of any licence whether it be a learner’s driving licence; a probationary driving licence or a full driving licence is subject to the disqualification imposed today which disqualifies you from holding or obtaining a driving licence. 

32. For failing to display the “P” plates you are convicted and fined $400 which you consent to be taken from your bail money.