HKSAR v. AU YIU FAI

DCCC 129/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 129 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Causing grievous bodily harm by dangerous driving". He drove a taxi and hit a male pedestrian at a zebra crossing.

Summary of Facts

2.  The traffic accident occurred at the zebra crossing outside Nos.42-56 Fuk Man Road in Sai Kung.  Fuk Man Road is an undivided 2-way carriageway with one lane for each direction.  Its speed limit is      50 km/hour.  At the time of the accident, the road surface was dry and the traffic flow was smooth.

3.  About 9:30 am on 5 August 2014, Mr. LEUNG (PW1) was hit by a taxi (PL 8229) when crossing Fuk Man Road via the zebra crossing. The taxi was driven by the defendant.

4.  PW1 was unable to describe the accident.  Mr. CHOW (PW2) was standing on the pavement across the road from PW1 when the accident took place.  He saw what happened.  According to PW2, the taxi was travelling along Fuk Man Road towards Sai Kung Pier.  PW1 set foot on the zebra crossing. The taxi did not slow down and hit PW1.  After the impact, the taxi continued to move forward for some distance before it came to a complete stop.  PW2 did not hear any honking sound before the impact.

5.  PC 50016 (PW4) attended the scene at 9:48 am. During the initial enquiry, the defendant told PW4 that he was driving the taxi along Fuk Man Road; PW1 suddenly stepped out from the pavement on the defendant's left side.  He could not brake in time so the vehicle hit PW1.  No tyre marks were found on the road right after the accident.

6.  The CCTV footage[1] of a nearby shop was seized.  It revealed that when PW1 set foot on the zebra crossing at a normal pace, the taxi was more than 5 to 6 feet away from PW1.  It did not slow down; it moved across the zebra crossing and hit PW1.  The taxi hit PW1 when he had already stepped onto the 2^nd white stripe of the zebra crossing.

7.  PW1 was immediately sent to Queen Elizabeth Hospital (QEH).  Upon arrival, he was found having multiple abrasions over his forehead, both elbows and both knees.  His general condition was critical.  CT scan revealed the following :-

(i) fractures in right frontal bone extending down to floor of frontal sinus, in left sphenoid and anterior clinoid. Right frontal scalp haematoma. Haematoma in right frontal and ethmoid, left sphenoid sinuses. Minimal fluid left in the right maxillary sinus;

(ii) acute subdural haematoma over left parieto-occipital region;

(iii) tiny hyperdense focus over left occipital region could be small intracerebral haematoma/subarachnoid haemorrhage; and

(iv) tiny pneumothorax in left apical region.

PW1 was without loss of consciousness. He remained at QEH until 20 August 2014, and was transferred to Kowloon Hospital for further treatment until 29 August 2014. He was granted sick leave from 5 Augsut 2014 to 12 March 2015.

8.  PW1 was also referred to the Department of Neurosurgery of QEH for further treatment.  He was presented with significant distress, difficulty falling asleep and having nightmares.  He feared crossing roads, and had hypervigilance and more irritable mood.  Continual psychological treatment would be provided for him.

9.  The taxi was examined after the accident.  Its front windscreen was cracked; the left front fender was damaged and deformed; and the left front direction indicator was defective.

10.  In a video-recorded interview conducted on 15 October 2014, the defendant claimed that on the day of the accident, he was driving the taxi towards Sai Kung Pier with 4 passengers on board.  He was driving at a speed of 20 to 30 km/hour.  Upon reaching the zebra crossing, the defendant saw a "black shadow" dashing out from the pavement on his left.  The left front part of his taxi hit the pedestrian.  He applied the brakes immediately.

Mitigation & Sentence

11.  The defendant is 53 years old and has a clear criminal record.  He has been licensed to drive since 1982.  For traffic offences, he has had a few fixed penalty tickets and 2 convictions of "Careless Driving" respectively in 2010 and 2012, for which he was fined $900 and $1,000.

12.  Defence counsel Mr. LAU informed me that the defendant became a relief taxi driver in 2007, working 4 to 5 times a week.  His wife is a nurse working as a Departmental Operation Manager in a public hospital.  They have no children and enjoy a healthy finance.  In his written submissions, Mr. LAU has described in details the defendant's good character and charitable history.

13.  Mr. LAU has also submitted that the defendant is remorseful.  As a result of the accident, he finds it too stressful to drive again.  In March 2015, he secured a job as a part-time warehouse attendant.  The defendant was seen by a psychiatrist in private practice in March this year; he was diagnosed to have been suffering from Post-Traumatic Stress Disorder. According to the report, the defendant felt anxious and depressed; had difficulty sleeping at night; avoided interaction with others; lost interest in his hobbies; and was having flashbacks of the accident and nightmares.

14.  A bundle of mitigation letters from friends and family members were placed before me; their contents are duly noted.

15.  In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving.  I have reminded myself of the sentencing principles[2] set out by the Court of Appeal in SJ v POON Wing Kay [2007] 1 HKLRD 660.

16.  In SJ v LAM Siu Tong [2009] 5 HKLRD 601, the Court of Appeal also 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...

Thus, we are of the view that where the offence of dangerous drivingcausing 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…" [3]

17.  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 accidents on pedestrian crossings." [4]

18.  The cause of the accident in the present case is the defendant's failure to stop for PW1 at a zebra crossing.  Unlike driving through a pedestrian crossing controlled by traffic lights (at which the signal for motorists to stop or go is clear), motorists are expected to proceed with more caution and to yield to pedestrians at a zebra crossing.  The fundamental concept of a zebra crossing is pedestrians take precedence there.[5]

19.  I have no reason not to accept the defendant has all along been a good person, a caring husband and a reliable driver.  On the other hand, the offence he committed is a serious one and cannot be treated lightly.  In my view, an immediate custodial sentence is inevitable.

20.  The maximum sentence for the present offence is a fine of $50,000 and imprisonment for 7 years.  There is no evidence before me showing that PW1 suffers from any permanent physical disabilities[6], but it is clear from the Summary of Facts that he needs continual psychological treatment.  I can imagine the pain and suffering as well as the inconvenience he would have to experience arising from his injuries.

21.  When determining the starting point, I treat the defendant as a law-abiding citizen and having maintained a fairly decent driving record.  The court, however, must stress that driving (whether in a professional or recreational capacity) is a privilege―a privilege with great responsibilities attached.  In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just.[7]

22.  It is not an easy task to send someone like the defendant, who has been an upstanding citizen all his life, to prison.  I have considered long and hard what the appropriate length of imprisonment should be.  I understand the traumatic effect of a prison term would have on the defendant and his family.  The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

23.  I accept that the present case is not the most serious of its kind, but cannot overlook the defendant's knocking down a pedestrian at a zebra crossing.  Having considered all relevant factors, I adopt a starting point of 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months. Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, I sentence the defendant to 10 months' imprisonment.

24.  In addition to imprisonment, I make a disqualification order for a period of 2.5 years[8] (the disqualification period will start to run from the date of sentencing[9]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.[10]  In my view, it is unnecessary to order the defendant to re-take his driving licence test.