HKSAR v. Tong Wing Tim

DCCC 486/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 486 OF 2015

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Reasons for Sentence
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1.The defendant has pleaded guilty to one offence of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance.

2.The facts that have been admitted by the defendant show that the charge results out of a collision between an MTR double-decker bus driven by the defendant and a light rail vehicle.

3.The collision occurred in the afternoon of 21 November of 2014, and it occurred at what is described as a T-junction controlled by traffic lights.  The junction was between a light rail lane and Wu Chui Road.  That is in Tuen Mun.  When the light rail vehicle approached the junction, it had a traffic light in its favour, and proceeded.  On reaching the junction, the bus driven by the defendant collided with the left front of the light rail vehicle.

4.At the time when the bus driven by the defendant entered the junction, the light controlling the junction in its direction was red.  During a later inquiry, the defendant admitted that he might - he said might - have misread the light governing his movement.

5.The driver of the light rail vehicle saw the bus and said the bus did not slow down.  The driver of that vehicle braked immediately, but he was unable to avoid a collision.

6.As a result of the collision, injuries were caused to passengers on both the bus and the light rail vehicle.  A total of 23 persons, including the defendant, were injured in the accident.  The prosecution in the facts have put forward the injuries to two of the victims. One is described as PW7, who was a 59‑year-old passenger on the light rail vehicle, and she received post head injury with bi-frontal traumatic subdural haematoma and a right temporal subarachnoid haemorrhage, and was hospitalised for nine days and had 12 days’ sick leave.  There was also a 69-year-old lady who was in the light rail vehicle.  She received a fracture on the left superior and inferior public rami and a right arm fracture of the neck of the humerus with displacement, and she was hospitalised for 28 days.

7.The defendant himself also has sustained fractures on his pelvis and right tibia and was hospitalised for 71 days.

8.The defendant is a 53-year-old man with a clear criminal record and a clear driving record.  He is married, with a 17-year-old son.  He has been a vehicle driver by profession, being employed by the MTR as a driver since 2009.  He has been driving since 1986 without incident.  Reports on him I have obtained show that he has received commendations as a driver.  He is highly thought of by his colleagues, who have written to the court to support him, and the background report describes him as a responsible family man.  He has been a professional driver for 30 years and has earned confidence and prestige from family, neighbours, members, colleagues and seniors.

9.The defendant’s mitigation centres around the fact he has pleaded guilty and admitted the facts.  He has no criminal record or driving record.  The defence say that in this case there is no evidence of excessive speed, reckless driving, consumption of alcohol or any of the normal aggravating factors.

10.In mitigation the defendant has conceded that there was a momentary dangerous error of judgment or a short period of bad driving.  As far as mitigating factors arising out of the incident, it is said that the defendant has received a serious injury himself and was hospitalised for a long period.  At this stage it may be unlikely the defendant would resume his previous employment as a driver as a result of these injuries.

11.From the facts I have, it would appear the defendant was the most seriously injured person in the accident.

12.In approaching sentence of a case under section 36A of the Road Traffic Ordinance, there are various considerations the court must take into account.  In the case of HKSAR v Li Yau Wing, the court considered that the approach discussed in R v Cooksley was equally appropriate to the offence of dangerous driving causing grievous bodily harm.

13.The defendant’s culpability should be the dominant component in the sentencing exercise, even though the outcome of the offence is also an important matter for the sentencing judge to consider.  In determining the culpability of a defendant’s dangerous driving, the body of case law on the other dangerous driving offences in the Road Traffic Ordinance that has developed since the case of Secretary for Justice v Poon Wing Kei is equally applicable.  Whilst the court should also make allowance that no death flows from this dangerous driving, it has also been said that since the focus is on the culpability of the defendant’s driving, his clear record and general good character carries little weight.

14.The dominant sentencing principle is general deterrence, with principles of retribution and denunciation being also relevant.  This is significant, but this is a case where the defendant does have a clear record and a general good, if not excellent, character.

15.I must examine the defendant’s culpability.  The defendant drove a double-decker bus through a red light‑controlled junction into the path of a train, this being done, according to the evidence of the train driver, without the bus slowing down.

16.The defendant told the police his speed was around 30 kilometres per hour - this is after the incident - and that he might have misread the traffic light.  Later he told police he had reduced his speed to 10 to 15 kilometres per hour.  He had blacked out.  When the collision occurred, he had not applied his brakes.

17.As I said, it is conceded in mitigation that this was a dangerous error of judgment.  However, it does seem, on the face of the facts admitted, to go somewhat beyond this.  Firstly, I must bear in mind these are mass transit vehicles.  They carry a lot of passengers.  The drivers of such vehicles must, common sense demands, be especially attentive and aware of traffic conditions.

18.In the case of such vehicles, the risks to passengers are magnified.  Certainly in this case, this is a junction controlling the movement of a light railway train.  Again, this is an inherently dangerous situation for a driver to be in.  To enter such a junction without being consciously aware and taking care to be aware of the nature of the traffic light condition is especially dangerous.

19.There is evidence the defendant did not lower his approach speed, and appeared to be oblivious to the train.  To drive in this manner that the defendant did at this location must, in my view, be a seriously aggravating factor judged by any objective standard.

20.The definition of the offence provides an objective standard.  Necessarily, there may be some subjective aspect of culpability, but still, on any objective assessment of the defendant’s culpability, this must be, as I put it, a seriously aggravating factor.

21.I find that in these broad circumstances, the defendant’s driving misconduct is serious.  His professed lack of awareness notwithstanding, I would place his driving in the middle to lower bracket of seriousness.  I must, on the basis of that, determine a proper starting point for sentence in this case, then reflect the serious injuries the defendant received and his plea of guilty.

22.I am impressed by the background of the defendant.  He has a commendable driving record and is clearly a hard-working member of this community.

23.However, it is clear from authority that I must follow that this in fact carries little weight in the determination of sentence.  As I have said, this was an accident involving mass transit vehicles.  Therefore, potential for serious injury to a lot of people is always inherent in that situation, and that must be, to a certain extent, also reflected in the starting point for sentence.

24.I consider, taking all the factors that I have articulated into consideration, the appropriate starting point for sentence in this case is one of 21 months’ imprisonment.  The defendant himself has suffered regrettable injuries and has had a long road to recovery.  That must be reflected in the starting point for sentence as well.  I will reduce my original starting point by 3 months to account for this factor.

25.The defendant has pleaded guilty.  He is entitled to a one-third discount from the figure of 18 months.

26.This leads to a sentence of 12 months’ imprisonment.  I have considered whether that sentence should take immediate effect.  I consider that the nature of the accident, the injuries that have been incurred, and also the defendant’s mitigation, which although compelling is not exceptional, lead me to the position that the sentence of imprisonment must be served immediately and no suspension is appropriate.

27.So the sentence of the court will be one of 12 months’ imprisonment.