HKSAR v. LIN YU QUN

DCCC 1079/2021

[2022] HKDC 1151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1079 OF 2021

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to the offence of “causing grievous bodily harm by dangerous driving”, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (“RTO”).

2.  An accident took place on 4 May 2021 at around 1617 hours in which a Mr Ng (aged 94 at the material time but passed away of pneumonia in a year later)  was injured when he was using an uncontrolled cautionary crossing on Yan King Road, Tseung Kwan O.  Mr Ng had right ankle and foot open fracture and distended abdomen and was admitted to the ICU and later on the Surgical Orthopedic Department for treatment and several surgeries including internal fixation and amputation of his right big, 2^nd and 3^rd toes with skin grafting.  His right forefoot condition deteriorated and complicated with necrosis.  A subsequent operation for his right foot trans-metatarsal amputation was performed on 14 May 2021 (i.e. 10 days after the accident).  As a result, Mr Ng’s walking ability had been severely impaired.

3.  As a matter of fact, the injuries caused to Mr Ng by the conduct of the Defendant is relatively serious.

4.  The facts of the case, however, do not show a clear indication of dangerous driving when it was first placed before this court.  After viewing the video footages with the parties, they jointly applied to have the case adjourned in order to allow the Department of Justice to review the merits of the case.  It was shortly before the adjourned hearing, the court was notified that an expert report would be called for by the Prosecution and a further adjournment was granted (with the scheduled hearing vacated on paper). 

5.  On 6 October 2022, the Prosecution submitted a Re-amended Summary of Facts.  There were substantial and significant changes.  The Defendant entered her plea and was convicted on the revised factual basis which could be summarized as follows:

(a)  The relevant speed limit was 50km/h.

(b)  The weather was fine, the road was dry and the traffic was light.

(c)  There was first signal controlled crossing 63 meters ahead of the spot of accident (the above-mentioned uncontrolled crossing).

(d)  A traffic sign was erected 40 meters ahead of the uncontrolled crossing.

(e)  Mr Ng walked slowly across the uncontrolled crossing with his head down seemingly without paying attention to the traffic.

(f)  The Defendant did not show any sign of slowing down when her car was approaching the uncontrolled crossing.

(g)  The Defendant only applied the brake 1 second before the collision which took place on the second lane of Yan King Road.

6.  Dr Wong, the Forensic Scientist was of the view that the Defendant was driving at a speed of 41+- 4 km/h when she was between 40.6m and 23.8m away from the uncontrolled crossing and 42+-4km/h when she was between 23.8m and 12.1m away from the uncontrolled crossing.  In short, the Defendant was not speeding at all the material times.

7.  Dr Wong also opined that the stopping distance was insufficient and he remarked “the impact would have been avoided if the Defendant had perceived the danger about one meter (instead of 0.6m)  before reaching Position C (i.e 23.8m from the uncontrolled crossing)  or if the Defendant had started to reduce the speed between (the signaled crossing)  and Position C” once the traffic signs had become visible to her.

8.  Under caution, the Defendant also admitted that:

“8. The Defendant was interviewed under caution on the same day. She stated that she was a housewife and she was driving a friend to a wet market. She said she was so preoccupied with finding the way to the wet market that she did not pay attention to the road ahead of her. She said she did not know she was approaching an uncontrolled cautionary crossing; she did not notice Mr Ng until he appeared right in front of the Car. She immediately applied the brake but the collision took place eventually. Her vision was not obstructed and she was not aware of the speed at which she was driving the car at the material time.

9.  It is in these circumstances, the Prosecution say:

“16. At all material times, the Defendant was driving the Car dangerously on Yan King Road as:-

(a)  She failed to keep a proper lookout to the road situation and to ensure the safety of pedestrians in that:-

(i)  she admittedly did not pay attention to the road situation ahead because she was so preoccupied with finding the way to the wet market; she was not concentrating on her driving;

(ii)  her view was unobstructed from Position A to E so she could have been Mr Ng (i.e. perceiving the danger)  from Position A to C (about 37 meters)  (in around 4 seconds)  if she had paid attention to the situation ahead; and

(iii)  she failed to see the Traffic Signs as she admittedly did not know she as approaching an uncontrolled cautionary crossing, and consequently she failed to reduce the speed of the Car.

(b)  The collision could have been avoided in that:-

(i)  if the Defendant had perceived the danger between Position A and Position C (i.e. about one meter before reaching Position C)  and applied the brake accordingly;

(ii)  if the Defendant had reduced the speed when she saw the Traffic Signs. The Defendant would have been able to stop the Car before the point of impact even if she applied the brake only at Position D provided that the Car was travelling at 40km/h.

17. As such, the way the Defendant drove fell far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

18. At all material times, the Defendant caused grievous bodily harm of Mr Ng by driving the Car on the road dangerously.”

10.  In mitigation, Mr Bruce SC (with him Mr Man of counsel)  stressed that there was no evidence of speeding nor alcohol in her system.  There was obviously no disobedience of traffic lights because the crossing, as noted above, was an uncontrolled crossing.  In short, there was, so submitted, no suggestion of the existence of aggravating factors. 

11.  The Defendant made full admissions to the police and had been very cooperative.  It was, regrettably, her failure to keep a proper lookout that had caused the accident. 

12.  I fully note the background of the Defendant because much had been said on her behalf, in particular, regarding her family and her life in the past.  I would not underestimate the existence of certain hardship that might be caused to her and her family should the Defendant be incarcerated.

13.  I also note that the Defendant had no previous criminal record and her traffic record was not poor at all since 2001, when she obtained the licence. 

14.  Admittedly, it appears to this court that sentencing an accused who has a very respectable background for a traffic offence is sometimes a difficult task.  I also accept that the Defendant is deeply remorseful.

15.  I have the benefit of reading the authorities of Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771 and Secretary for Justice v Ian Francis Wade [2016] 3 HKC 274 again for a few times and also the submissions on the law scholarly presented by Mr Bruce SC.  It is of great assistance to refer to the following important passage in Chu Wing Yin Christine:   

“53. From this survey of relevant authorities in Hong Kong, England and Wales and Australia, certain fundamentals may be stated when a judge approaches his task of sentencing for causing grievous bodily harm by dangerous driving. First, the dominant factor to be considered in sentencing for this offence is the defendant's culpability. This will involve two related assessments. The first is the objective dangerousness of the defendant's driving; the second is his moral culpability.

……

55. There will of course, be an overlap or intertwining of these two assessments, one of which focuses more on what the driver did, the other on why he did it. Both, however, are concerned with addressing the dominant question of culpability.

56. Secondly, having assessed culpability, a judge should then consider the harm and impact caused to the victim(s). Really serious injury will already have been caused and this will be an important factor in the sentencing exercise……

57. In assessing the issues of culpability and harm, a sentencing judge will have regard to the sort of aggravating factors … and (be)  conscious that the value to be placed on any particular factor will vary according to the circumstances of each case.

58. Thirdly, a judge will proceed on the basis that the normal sentence for an offence of causing grievous bodily harm by dangerous driving is one of immediate imprisonment. The length of such sentence will be determined by his assessment of the first two factors, bearing in mind that the maximum sentence for the offence upon indictment is a fine at level 5 and imprisonment for 7 years. We consider that other sentencing options would only be available in exceptional cases.

59. Turning to the prevalence of this offence in this jurisdiction … Clearly, this is a prevalent offence in Hong Kong, for which the courts should be aiming at consistency of approach whilst making due allowance for the myriad circumstances in which the offence may be committed. We can also see that most of the cases in this jurisdiction have been dealt with by way of immediate imprisonment: only a very few have been disposed of by way of non-custodial sentences.” (Emphasis added)

16.  Properly applied the relevant principles, I do not accept that a suspended sentence nor community service order a suitable sentencing option in the present case.  One must note that the injuries caused to Mr Ng was severe and the extent and nature of the injuries is one of the aggravating factors. Even in the absence of aggravating factors, I do not find it right to take it as a matter of course that an immediate custodial sentence could be dispensed with.  

17.  I have not ignored the fact that there are a number of relevant and significant mitigating factors: the driving record, the absence of previous convictions, a guilty plea which is entered timely, the genuine remorse and the background pertaining to the commission of the offence and those personal to the Defendant.  Whilst I do not accept that this case is exceptional, I agree that a sentence substantially lower than that in Chu Wing Yin Christine (in which the Court of Appeal stated that a starting point of 18 months’ imprisonment should be adopted)  is justified.  I accept that there is no other aggravating factor and the present case falls at the lower end of the spectrum in this or similar offences.  

18.  After careful consideration, this court is of the view that a starting point of 12 months’ imprisonment should be adopted.  It is reduced to 8 months’ for the guilty plea.  I also give a further reduction of 2-month to reflect the other mitigations.  Therefore, the Defendant is sentenced to 6 months’ imprisonment.

19.  On the question of disqualification, I see no basis to depart from the minimum requirement.  I shall impose on the Defendant a 2 years’ disqualification which is to take effect from now.  However, I do not find it necessary to order the Defendant to complete any driving improvement course.