HKSAR v. Yan Kwok Leung

DCCC 915/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 915 OF 2016

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REASONS FOR SENTENCE

1.Yan Kwok Leung you have pleaded guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1]. This is a serious offence for which the maximum penalty is 7 years imprisonment.

2.Full particulars of the offence are set out in the facts admitted by you yesterday. In summary at about 1230 hours on 23 March last year you were driving a taxi, registration number SB2537, along the 4th left lane of Che Kung Miu Road eastbound towards Ma On Shan.  It was raining at the time and the road surface was wet.  The speed limit was 50 km/h.

3.As you approached the junction with Sha Tin Tau Road you were travelling at a speed in excess of the speed limit.  As you crossed the junction you did not slow down or brake.  On reaching the pedestrian crossing you hit a bicycle which was crossing the junction from right to left.  The cyclist, Leung Koon Tong aged 75, fell off his bicycle and hit the windscreen of your taxi rendering him unconscious. 

4.Mr Leung was admitted to the intensive care unit of the Prince of Wales Hospital.  Mr Leung sustained very serious injuries including traumatic brain injury and fractures of the neck and hip as particularised in the facts admitted by you and in the update medical report of Professor Poon dated 4 March 2017.  

Mitigation

5.In passing sentence, I take into account everything said on your behalf by Mr Boyton together with the letter from the school teacher of your eldest son, who speaks very highly of you as a caring father.  I accept that you are remorseful for what happened.

Dangerous Driving

6.In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[2].  These factors were revised in R v Cooksley[3].  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another[4] emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

7.I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving[5].  This principle was repeated in Secretary for Justice v Lau Sin Ting where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[6].

8.In Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has been adopted in Hong Kong[7].

Speeding

9.Travelling well in excess of the speed limit is an aggravating feature of sentence, in particular where the accident occurs at a pedestrian crossing.  In Secretary for Justice v Lam Siu Tong, a case of dangerous driving causing death, the Court of Appeal said[8]:

“…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. Accordingly, if motorist approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur.”

10.The Court of Appeal went on to say the running over of persons at pedestrian crossings would be a serious aggravating feature, the degree of seriousness depending on the precise circumstance[9]. This can be seen from the case of HKSAR v Lui Chung Tak where a higher sentence than in previous cases was held to be appropriate notwithstanding the court held the driving was not a conscious disregard for traffic lights[10]. 

11.The driver of a light goods vehicle had passed through the crossing when the traffic light had turned red for one second, having been on amber for three seconds.  As he did so he knocked down an 83 year old female pedestrian who had crossed before the green man for pedestrians was illuminated.  The court reduced the sentence from 2 years to 20 months imprisonment.

12.The driver in Lui Chung Tak was not however driving in excess of the speed limit.  Greatly excessive speed was said in Cooksley to be highly culpable driving.  In Poon Wing Kay the court said that one major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or with a degree of recklessness.

13.A camera was installed in your taxi which recorded the accident.  I have had the opportunity of viewing the footage which shows that the bicycle came into view before you reached the junction but only after you entered the junction did the bicycle pass the safety island and pass in front of you[11].  

14.I have also read the expert reports of Dr Wong[12]. What is clear from the reports is that had you not been travelling in excess of the speed limit and depending on when you first saw the bicycle, the accident was almost certainly avoidable[13].

15.As you approached the junction although the traffic light governing your direction of travel was green, you were travelling in excess of the speed limit at an average speed of between 57 and 72 km/h.  Immediately prior to the collision your speed was 63 km/h, some 13 km/h above the speed limit or looked at another way 25% above the speed limit.    You did not slow down or brake resulting in your hitting the bicycle.  

16.Travelling at this speed whilst approaching a pedestrian crossing, in particular considering it was raining at the time, is in my view to be regarded as excessive speed albeit not greatly excessive and shows a disregard for the safety of other road users.  The failure to see Mr Leung on his bicycle in time to avoid the accident also shows a degree of recklessness. 

17.Taking into account the green light was in your favour, I am satisfied your driving falls within the category of intermediate culpability.

18.Also to be taken into account is that you have a poor traffic record with five offences of speeding, two of careless driving and most relevant, one conviction for dangerous driving in 2014. 

Injuries

19.As already noted earlier Mr Leung sustained very serious injuries.  Mr Leung remained in hospital until 1 May when he was transferred to the Shatin Hospital for rehabilitation.  On 12 July Mr Leung was discharged to an old aged home where he needs continuous attention and is totally dependent on others. 

20.Whilst the impact on people’s lives is to be taken into account when sentencing the Court of Appeal in Secretary for Justice v Poon Wing Kay said that in assessing the overall seriousness culpability is often the dominant factor.

21.In considering the degree of injuries sustained I also note that said in HKSAR v Lui Chung Takthat it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence[14]. In my view this is one such case where the injuries do have an impact on sentence.

Sentence

22.In Poon Wing Kay the Court of Appeal said: -

“It is important for 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 when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

23.Taking into account that you approached the junction in excess of the speed limit when the traffic lights were green in your favour; your failure to see Mr Leung in time to avoid the accident; the serious injuries sustained by Mr Leung, and your poor traffic record, I am satisfied that the proper starting point after trial is 1 year and 6 months imprisonment.  

Positive action to assist the victim at the scene

24.Mr Boyton informs the court you were the one who called 999 and that you assisted Mr Leung by covering him to prevent him from getting wet.  I accept after the accident you behaved responsibly and did what you could to assist Mr Leung. This also shows yourgenuine remorse.  In the circumstances I reduce the starting point by 2 months to 1 year and 4 months imprisonment[15].

Plea of guilty

25.On 25 October 2016 you pleaded not guilty to the charge and the case was set down for trial to commence yesterday.  On 2 March, just under three weeks ago, Mr Boyton informed the court you would plead guilty to the charge.  Applying the sentencing principles for late pleas of guilty as set down by the Court of Appeal in HKSAR v Ngo Van Nam[16], I am satisfied you are entitled to a 25% discount.  Giving you full credit for your plea of guilty you are convicted and sentenced to 12 months imprisonment.

Disqualification

26.There is mandatory disqualification of not less than 5 years for a second conviction of dangerous driving unless the court for special reasons decides not to make such an order.  I find there are no special reasons. 

27.You are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 5 years.  Pursuant to section 69A (2) of the Road Traffic Ordinance I direct that the disqualification is not to start to run until you have finished serving the term of imprisonment there being no special reason not to make such direction.

28.Section 72A (1A) of the Road Traffic Ordinance provides that 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.  Again I find there are no special reasons not to order you to attend and complete a driving improvement course. 

29.You are ordered to attend and complete a driving improvement course, at your own cost, within the period of 3 months ending on the date on which the disqualification expires.  You are also warned that it is an offence not to attend and complete the driving improvement course and that you remain disqualified until you attend and complete the driving improvement course notwithstanding the disqualification period may already have ended.