HKSAR v. LEUNG CHIN WING TEQUILA

DCCC 470/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 470 OF 2014

--------------------

--------------------

---------------------

Reasons for Sentence

---------------------

1.   The defendant has pleaded guilty to one charge of causing grievous bodily harm by dangerous driving.

2.   The summary of facts admitted by the defendant reveals that the accident took place on a pedestrian zebra crossing at around 5 pm on 11 November 2013.  The accident location was opposite to a light rail train station in Tuen Mun.  The speed limit of the road was 50 km/h. At the time of the accident, the weather was fine and the road surface was dry and in good repair.  The accident involved a taxi, driven by the defendant, without passenger on board.  The victim, a male aged 19, a student of the nearby Hong Chi Morninghope School, was knocked down by the defendant’s taxi and sustained injuries. 

3.   At the time of the accident, PW1 was standing on the pavement near the pedestrian zebra crossing and saw other pedestrians, including the victim, also waiting on the pavement.  PW1 then saw the victim walk out of the pavement, followed by two other students.  The victim was walking slowly.  PW1 saw the defendant’s taxi approaching.  The taxi was around 20 metres away from the zebra crossing. 

4.   When the victim reached the second stripe of the zebra crossing, PW1 noticed that the taxi was travelling at a high speed.  He alerted the victim that a car was coming.  The victim turned around, but the front of the taxi hit the right leg of him.  He fell onto the ground. The taxi moved forward for half a taxi’s length before it came to a halt.  PW1 and another pedestrian helped the victim walk back to the pavement.  PW1 could not estimate the speed of the taxi. 

5.   Police officers arrived at the scene to conduct investigation.  The defendant claimed that his taxi was not travelling very fast.  The victim suddenly walked out from the pavement hastily.  He claimed that the taxi was travelling at 20 km/h.  No skid mark was found at the accident location. 

6.   The victim remained conscious after the accident.  On admission to the Tuen Mun Hospital, he was found to have sustained abrasion and mild swelling over the right elbow; abrasion, swelling and tenderness over the left ankle.  There was fracture of the distal fibula on the left ankle with mild displacement.

7.   Further medical examination showed that there was tenderness and bruise at the left lateral malleolus with mild tenderness and bruise at lateral mid-foot.  There was also superficial abrasion on the right forearm.  Fracture was found on the left ankle.  He had to walk with stick and was discharged from the hospital on 15 November 2013.

8.   The victim was autistic and unable to give any detail of the accident.  A medical report dated 4 July 2014 revealed that an operation was done on 10 March 2014.  It was by way of open reduction and internal fixation.  The victim could walk unaided when he was followed up on 13 May this year.  Physiotherapy was prescribed.

9.   A cautioned interview was conducted with the defendant on 4 December 2013, in which he claimed, inter alia, that when the taxi was approaching the zebra crossing, he slowed down the taxi to around 30 to 40 km/h.  He saw that there were more than 10 pedestrians waiting on the pavement and no one appeared to be preparing to cross the road.  He therefore continued to travel at the same speed.  When the taxi reached the zebra crossing, he heard a crashing noise from the nearside front.  He immediately applied the brake.  When he alighted from the taxi, he saw the victim sitting on the zebra crossing.  He did not know when and where the victim walked out before the accident.  He was looking ahead, but not at the nearside before the accident.  He did not know how the taxi knocked down the victim.

10.   The defendant is aged 37.  He has two previous criminal convictions and nine traffic convictions, out of which three were for careless driving and two for speeding.  He has also received 16 fixed penalty tickets for speeding.  He is now serving an imprisonment term of 5 years and 2 months for trafficking in dangerous drugs, which was passed after the commission of the present offence.

11.   In mitigation, the defendant’s solicitor, Mr To, tells the court that the defendant received his education up to Form 3. He is married, but he has separated from his wife for seven years.  He was living with his parents before he was sentenced to prison.  He has 16 years’ driving experience.  He was a taxi driver earning about $9,000 a month and the breadwinner for his parents, who are diabetics suffering from kidney diseases. The defendant himself is also a diabetic.  He is suffering from a kidney disease which is so serious that he is expecting to receive dialysis by the end of this year.

12.   As regards the circumstances of the accident, Mr To says the defendant slowed down when he was approaching the zebra crossing, although he did not know the extent of deceleration.  This is not disputed by the prosecution.

13.   There was some differences in the explanations of the defendant to the police.  Mr To tells the court that the accident took place in circumstances that the defendant told the police in the cautioned interview.  The defendant did not see how the victim walked onto the crossing.  It is submitted that the offence was committed out of serious error of judgment.

14.   PW1 could not estimate the actual speed of the defendant’s taxi.  Given that there was no skid mark on the road and the taxi could come to a halt at a distance of half a taxi’s length, the taxi must not be driving too fast.

15.   Apart from the fact that the accident took place in a zebra crossing, it appears that there were no aggravating factors in the case.

16.   The point is made that the injuries to the victim were not very serious.  There is no evidence of permanent disability.  He can now walk without a stick. 

17.   Mr To has drawn my attention to three cases:  HKSAR v Lee Yau Wing, CACC 282/2012; HKSAR v Lui Chung Tak, CACC 221/2012; and HKSAR v Chan Kwong Chi, DCCC 601/2012.  It is submitted that the first case is quite similar to the present case in the seriousness of the injury of victims, while the injury of the victims in the other two cases were more serious than the victim in the present case.

18.   The maximum penalty for causing grievous bodily harm by dangerous driving on conviction on indictment is a fine at Level 5 and to imprisonment for 7 years.  In a dangerous driving case, the offender’s culpability is a dominant factor in the sentencing exercise, whilst the outcome of the offence is also an important matter for the sentencing judge to take into account.

19.   In the Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, the Court of Appeal held that the running over of persons at pedestrian crossings would be a serious aggravating feature. 

20.   In my judgment, the same would apply to knocking down a pedestrian on a zebra crossing by dangerous driving.

21.   In the Secretary for Justice v Wong Wai Hung, CAAR 7/2010, the accident occurred on a zebra crossing and the Court of Appeal found that the respondent driver had disregarded the presence of pedestrians on the crossing.  That was a case where death was resulted.  A starting point at 4 years was considered not manifestly excessive.

22.   In the Chinese judgment of HKSAR v Hui Shu Wing, CACC 477/2012, a case of dangerous driving causing death, where the Court of Appeal found the defendant not noticing the victim on a zebra crossing did not pay sufficient attention to the circumstances of the road, it was accepted that the defendant was not showing conscious disregard of the safety of pedestrian.  On these precise circumstances, the Court of Appeal found that 3 years’ imprisonment was an appropriate starting point.

23.   R v Cooksley [2003] 3 All ER 40 set out a number of aggravating and mitigating factors in sentencing dangerous driving cases.  The Court of Appeal in Lee Yau Wing considered that the approach discussed in R v Cooksley is equally appropriate to the offence of dangerous driving causing grievous bodily harm.

24.   I bear in mind that it is always important for the courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect in the sentence.

25.   The zebra crossing was located opposite a light rail train station and near a school.  There were pedestrians waiting on the pavement.  It should be obvious to the defendant that they wanted to cross the road. 

26.   There is no evidence of the actual speed of the defendant’s taxi.  It is indeed very difficult to judge a car’s speed.  Given that there was no skid mark on the road and the taxi could come to a halt at a distance of half of a taxi’s length, I would accept that the defendant was not speeding or driving at high speed.

27.   However, there were more than 10 pedestrians waiting, according to what the defendant said in the interview.  In my view, the defendant should stop the taxi and give way to the pedestrians. 

28.   Accepting that none of the pedestrians appeared to be crossing the road, the defendant must only proceed to cross the zebra crossing with the greatest care and caution.  However, he did not pay attention to the nearside and failed to notice the movement of the victim. That was a very irresponsible way of driving.

29.   However, on the evidence, I am unable to find that there was conscious disregard for safety of pedestrian. 

30.   The victim sustained serious injury. Fortunately, he can now walk without aid.  There is no medical evidence at the moment of permanent disability.

31.   On the other hand, the defendant’s previous traffic record shows that he habitually drove below acceptable standard.  He committed 3 careless driving and 18 speeding offences.  He was disqualified for 6 months in April this year, under the Driving Offence Points Ordinance. 

32.   Mr To compared the present case with the three cases he cited. 

33.   Lee Yau Wing was indeed a case with very unusual set of facts.  The driver proceeded at a speed of only 15 km/h.  The impact with the victim was not even sufficient to knock the victim down.  Moreover, the issue in that case was whether the 15 months’ imprisonment as a starting point was excessive.

34.   Lui Chung Tak was a case of running a red light, where conscious running against the red light was not established.  I agree with Mr To that the injury of the victim in Lui Chung Tak is more serious than the victim in the present case.  On the other hand, Lui had a better driving record than the defendant in this case.  The Court of Appeal held that 20 months’ imprisonment after trial was appropriate.

35.   DCCC 601/2012 was a first instance District Court Reasons for Sentence.  The learned judge took a starting point at 21 months’ imprisonment, where the defendant caused grievous bodily harm to a pedestrian on a pedestrian crossing when the traffic light was red.  The victim had occiput fracture and extensive skull-based fracture.  She lost her sense of smell.  The defendant did not have a bad traffic record.  The learned judge found no evidence of aggressive driving and that it was a serious momentary lapse of judgment.

36.   The defendant in the present case was a professional driver. 

37.   Taking into account all the circumstances of the case, the victim’s injuries and the defendant’s habitual manner of driving, in my judgment, a term of imprisonment is inevitable.

38.   The proper starting point should be 18 months’ imprisonment.

39.   With sympathy for the defendant, I am afraid that the health condition of himself and his parents cannot be regarded as factors to reduce the sentence.

40.   The only effective mitigation factor is the defendant’s plea of guilty, for which I will give him the full one-third reduction of sentence.

41.   The defendant is therefore sentenced to 12 months’ imprisonment. 

42.   He is now serving a prison term of 5 years and 2 months.  Taking into account the principle of totality, I order that 10 months of the sentence in this case to run consecutively to the term he is now serving, the rest to run concurrently.

43.   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.

44.   I find that there are no special reasons not to order the defendant to be disqualified.

45.   I am satisfied that a period of 3 years’ disqualification is appropriate.  He is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.  The order is to take effect from today.

46.   By virtue of Section 72A(1A) of the Road Traffic Ordinance, 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.

47.   By virtue of Section 72A(3C), such an order, if made today, will have to be complied with within 3 months after the defendant is released from prison.

48.   The defendant was ordered by the Transport Department on 10 December last year to attend a driving improvement course. 

49.   He has submitted proof that he applied to the Transport Department for extension of time for the order.  The Transport Department is now asking him to prove that he is serving an imprisonment term.

50.   That order cannot be complied with until the defendant is discharged from prison.  I would expect that the application for extension will be granted.  He will have to comply with that order after he is released from prison.

51.   I would agree with Mr To that no meaningful purpose will be served by ordering the defendant to sit for another driving improvement course within a short period of time after he is released from prison.

52.   I therefore make no order for a driving improvement course in this case.