HKSAR v. Chan Wing Chung

DCCC 85/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 85 OF 2017

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Reasons for Sentence

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1.The defendant, Mr Chan, has pleaded guilty to one offence of causing grievous bodily harm by dangerous driving, which is contrary to section 36A of the Road Traffic Ordinance, Cap 374.

2.The facts establish the offence occurred on 14 July 2016 at a junction on Ma On Shan Road and Sai Sha Road in Shatin in the New Territories.  At the time, the defendant was driving a motor vehicle which was a taxi, and was said to be driving on the road dangerously, which the defendant, in the reamended Summary of Facts, agrees.

3.As a result of the defendant’s dangerous driving, a passenger on the defendant’s taxi was seriously injured.  Others were injured, but not so seriously.

4.The road in question was a dual carriageway with three lanes heading to the Villa Oceania direction.  In the second lane of the road, you either go straight across the junction or turn right into Sai Sha Road.  Sai Sha Road itself is a dual carriageway with four lanes heading to Ma On Shan.  Amongst those lanes, the second and third lanes went straight across the junction, and the fourth lane turned right into Ma On Shan Road.

5.We know that at the time of this accident, the weather was cloudy, the road surface was wet, and the speed was limited to 50 kilometres an hour.  The accident itself occurred in the evening at around 2220 hours.

6.PW1, described as a female, 31 years old, was driving a private car along the second lane on Ma On Shan Road, and upon reaching the junction of Ma On Shan Road and Sai Shan Road, she attempted to cross the junction.  She observed the traffic light in her favour was green, and she reduced her speed and drove into the junction.  When she entered the junction, she saw the defendant’s taxi approaching from her right-hand side. She tried to avoid a collision but was unsuccessful, and the two cars collided.  The front of PW1’s car hit the nearside of the taxi and lost control and spun around. 

7.The defendant admits he is the driver of the taxi. The taxi itself was carrying three passengers:  PW2, who is 36 years old, and her two children, who are 5 and 3 years old, sitting in the back seat.  As a result of that accident, PW2 was seriously injured, while the others sustained minor injuries.

8.The defendant, on police inquiry, admitted he was driving the taxi, that he saw the traffic light was green from afar, but did not pay attention when he got to the mouth of the junction, and then the collision occurred.  The defendant, in a later interview under caution, said when he was 50 metres away from the junction he saw the traffic light at the mouth of the junction was green.  He said the light was green when the taxi passed it, but he did not look at the traffic light again after being 50 metres away.  He did not apply or swerve his taxi before the collision.

9.The police investigation shows that another witness confirmed that the traffic light was red when the defendant’s taxi entered the junction.

10.There are some further admissions made as to the nature of the injuries suffered by the persons in question.  PW2 suffered severe injuries; hip and rib fractures.  Operations were performed, including a chest drain, fixators, and a screw to the fractures.  She was not discharged home until 3 September 2016, after being in hospital for one and a half months.  She was walking with a frame as of 14 September 2016.  The prosecution have been unable to obtain an update of her condition as of today, and it would take some time for such an update to be obtained.  It appears to be a very slow process to obtain these updates from the relevant authorities, which is unfortunate, but counsel made some inquiries and found that PW2 is still subject to treatment.

11.PW1 spent three days in hospital for a sprained neck.

12.The defendant himself suffered neck injuries, with seven days of sick leave. 

13.The defendant admits driving his taxi, again, in a dangerous manner which resulted in the collision.

14.As far as the defendant’s antecedents are concerned, they have all been admitted.

15.He is aged 56 years old.  He has a driving licence to drive a public bus and medium goods vehicle and also heavy goods vehicles since 1987.  He is of a clear criminal record, although he has a number of traffic convictions.

16.The defendant, on the antecedents, finished school in 1979.  He unfortunately suffered quite a severe injury at a hardware factory, resulting in the amputation of fingers and transportation of some of his toes.  The defendant has been employed as a Grade 2 worker at the Urban Council as a truck driver between 1986 and 2011, and then became a taxi driver since 2011.

17.The defendant has, as I said, no criminal convictions, but he has driving convictions.  Particularly of relevance are convictions certainly in 2013 for failing to comply with a traffic signal; and again, another one in 2015; and two other fixed penalty convictions for failing to comply with traffic signals.  As I pointed out earlier, that is indicative of some problem with the defendant’s driving in relation to his ability to either perceive or obey the traffic signals, and appears to be, on the face of the facts I have, relevant to the accident that we are dealing with today.

18.As far as the defendant’s mitigation is concerned, some of his family circumstances are highlighted.  He is a married man, and has a daughter who is a teacher.  He is described as growing up in a classic grass roots family and suffering a severe industrial injury when he was young.  Despite that, he has maintained himself in work and supported his family.

19.The defendant has also suffered from hepatitis B as well as arthritis, and has received knee surgery.  The defendant also has a father still alive who is aged 91 years.  He has, as may be expected with a person of his age, significant health problems:  prostate cancer, depression, and also dementia.  He is immobile due to a stroke, and under hospice care at the North District Hospital since 2014.

20.The defendant is anxious that his conviction today may well separate him from providing further assistance and care to his father and also his accompanying of his father at what appears to be close to an end of life stage for the father, and I am told that in February of this year that his father had another stroke, and there is a high risk of that recurring, and the father has become bedbound since then.

21.A number of submissions were made in respect of the approach that the court should take to this particular accident.  It is conceded that the defendant’s lack of attention and lack of care fell within the boundaries of the definition of the offence of dangerous driving in the circumstances of this particular case, that he did drive the car on the road dangerously.

22.As far as this offence is concerned, the case of, I believe, HKSAR v Lee Yau Wing CACC 282/2012, said that:

“Whilst the degree of harm or injury suffered by the victim remain an important factor to be taken account of in sentencing, the dominant sentencing consideration in a case of causing grievous bodily harm by dangerous driving is the level of culpability of the offender’s driving.”

23.The Court of Appeal also emphasised that:

“Given the nature of the offence, the sentencing court should be less concerned with the rehabilitation of the offender who would otherwise, aside from the commission of this offence, be a law‑abiding citizen, and should more be concerned with general deterrence.”

24.The defence has submitted that in this case there is an absence of what could be described as more serious aggravating factors which are factors such as road racing, failing to stop at a roadblock, ferocious driving, influence of alcohol or drugs, and that would put the sentencing of this defendant into a lower category of culpability or into the lowest or the intermediate brackets of culpability.

25.I do take the view that the facts of this case show that the case is certainly not within the higher culpability brackets. The defendant’s inattention related to a failure to properly acquaint himself with the prevailing traffic conditions, especially the traffic signals that are in force on that junction.  This would normally fall, in my view, at the lower end of the intermediate bracket.  The persistence of him driving through the red light prevents it falling into what I would call the lowest category of cases.

26.Also there is the fact of the defendant’s poor record in relation to observing the observation of traffic signals.  It is a worrying feature of the defendant’s driving in the past and is contributory to this accident, and I think can be considered to be somewhat of an aggravating factor in this offence.

27.I need to take all those factors into consideration to reach what I consider to be a proper sentence.

28.Having taken all the factors I have set out into consideration, I consider the appropriate starting point for sentence should be one of 18 months’ imprisonment.

29.The defendant has indicated his plea of guilty from an early stage.  That results in a one-third discount from that to a sentence of 12 months’ imprisonment.

30.There are also some consequential orders that must be made consequent upon the defendant’s conviction on this offence:  firstly, that he will be disqualified from driving of all types of vehicle in Hong Kong for a period of 2 years under section 36A(3)(a) of the ordinance; and also that within 3 months prior to the expiry of the disqualification period, he must attend and complete a mandatory driving improvement course if he wishes to retain his licence.