HKSAR v. WONG KAM MING

DCCC 625/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 625 OF 2014

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374.

2. The facts of this case are that on 22 December last year at 8.30 in the morning, you were driving a green PLB.  You were driving on the northbound lane of Wo Yi Hop Road which slopes upwards.  You approached the pedestrian crossing.  The victim was crossing that pedestrian crossing.  Unfortunately, you hit her before she had reached safety of the pavement.  She was dragged 17 metres from the point of impact.  Then you stopped your vehicle. 

3. The victim was 35 years old.  She sustained serious injuries.

4. I have had sight of two medical reports.  She suffered a fractured rib and left lung contusion.  She suffered multiple depressed skull fractures, haemorrhaging of the brain and was unconscious at the time of admission into hospital.  She had to have several operations. 

5. Sadly, she is now bed-bound.  She is conscious but does not recognise anybody.  She cannot care for herself and is totally depended on others.  She, some six months after the accident, has been admitted into an old age home for long-term care.  I am sure there is no likelihood of her leading a normal independent life again. 

6. There was a forensic scientist’s report.  That essentially shows you were not speeding at the time of the offence.  In fact, the speed sensor reading from your vehicle was that at the time of the accident you were travelling under 50 kilometres per hour.

7. However, the forensic scientist was of the opinion that you should have seen the victim when the victim was about 95 metres away from your vehicle.  The road was straight approaching this pedestrian crossing.

8. A taxi driver behind your vehicle had in fact seen the victim crossing, and a passenger on board your vehicle had seen the victim crossing the pedestrian crossing.

9. The taxi driver behind you said that he did not see you apply any brakes, meaning he did not see any brake lights before you hit the victim.  That would indicate that you did not see the victim before the point of impact.

10. That is what is put forward in mitigation on your behalf: you had a momentary lapse of judgment or lapse of attention.  That is really an understatement considering she was visible some 95 metres away.

11. What is also relevant is that the accident took place on a pedestrian crossing.  As a driver, you should have been more prudent when approaching a pedestrian crossing.  It is an aggravating factor where sentencing is concerned that it happened on a pedestrian crossing.

12. I have heard full mitigation put forward on your behalf.  You are now 70 years old.  You were 69 at the time of the accident. You have been a professional driver almost all your working life for over 30 years.  You are a man of clear record.

13. And as for your traffic record, you have one careless driving conviction and the offence took place in 2010.  The fact you were only fined $900 indicates to me it was a minor accident.  So you have a very good track record as a professional driver.

14. I have been told that you have been working for the company that owns this minibus for 13 years.  And there is a letter from your employer indicating that you are a responsible and hardworking, devoted employee. 

15. You are married with three adult children.  All are here today in court to support you.  I have had many letters of mitigation from your family that indicate that you are a good husband, father and a decent man who has made a mistake for which you are genuinely remorseful.  Your family say that this accident has had a great impact on you.

16. Along with your plea, I accept you are genuinely remorseful.

17. I have highlighted the seriousness of the accident on the victim and the fact she will not recover.  In addition, I have highlighted the aggravating factor in this case: the accident took place on a pedestrian crossing. 

18. There are mitigating factors that I will take into account and those include obviously your plea and you were not speeding at the time of the accident.  In addition, you have a good driving record as a professional driver. 

19. Every case must be looked at on its own facts, and I accept that this is not the worst category for this type of offence. 

20. Mr Wong has done his utmost to mitigate on your behalf.  He has provided me with a list of authorities including the English authority of The Queen v Cooksley as well as The Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.  He has also provided me with other authorities with similar facts to this case and asked me to consider the sentence imposed in HKSAR v Fu Yan DCCC258/2014. 

21. The prosecution referred me to the authority of HKSAR v Hui Shu Wing CACC477/2012.  The facts of that accident are almost identical to the facts of this case including the explanation given for the accident.  The difference is that in that authority, unfortunately, the victim died.

22. I have considered the reasons for the reduction of sentence given by the Court of Appeal.  I have also taken into account what the Court of Appeal said in The Secretary for Justice v Wong Wai Hing [2011] 2 HKC 224.  There they reiterated that the courts must drive home the message that the courts take a very serious view of accidents on pedestrian crossings. 

23. In this case an immediate custodial sentence is inevitable.  Mr Wong does not try to argue otherwise. 

24. It is not easy to sentence someone who is a decent man who has obviously worked hard all his life and raised a loving and close family.  A term of imprisonment will have a traumatic impact not only on the defendant but his family.  But I am duty-bound to send a message to drivers that vehicles can be dangerous weapons and drivers must be responsible for their actions. 

25. Defendant, please stand up.

26. I do take into account your plea today, your age, a clear record, traffic record, you are a professional driver with a good traffic record as well as mitigation.  I also have to take into account the facts of the case, the victim’s future prognosis and submissions as well as the authorities I have been referred to.

27. I will take a 2-year-and-6-month starting point.  You have pleaded guilty; you are entitled to a discount of one-third for your plea.  I intend to reduce that further by 6 months to reflect the fact you have been a professional driver all your life with an exceptional driving record.  Therefore, sentence for this offence is 1 year and 2 months.  Do you understand that sentence?

DEFENDANT: Understand.

28. I will also disqualify you for a period of 3 years from driving any class of vehicle.  I will order that you complete a driving improvement course at your own expense within the last 3 months of the disqualification period.  If you don’t, it will affect the return of your driving licence.