HKSAR v. Lo Chi Leung
Read the full judgment text of DCCC 956/2017 on BabelCite. This District Court judgment was delivered on 14 March 2018.
1. Defendant Lo Chi Leung pleaded guilty before me to one charge of causing grievous bodily harm by dangerous driving, contrary to [corrigendum: add “section 4 and”] and section 36A of the Road Traffic Ordinance, Cap 374.
Cites 14 cases
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DCCC 956/2017 [2018] HKDC 280 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 956 OF 2017 --------------------------------
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----------------------------------------- REASONS FOR SENTENCE ----------------------------------------- 1.Defendant Lo Chi Leung pleaded guilty before me to one charge of causing grievous bodily harm by dangerous driving, contrary to [corrigendum: add “section 4 and”] and section 36A of the Road Traffic Ordinance, Cap 374. Admitted facts 2.The facts admitted by Mr Lo can be summarized as follows. 3.Just past midnight on 6 April 2017, Mr Lo was driving a tram along Des Voeux Road Central (Westbound). Upon reaching the left bend outside Bank of China near Bank Street, the tram derailed and its right side collided with the eastbound tram stop. The tram then overturned onto its left side. 4.Passengers on board all felt that the tram was travelling at a faster than normal speed. One particular passenger saw from the tram’s speedometer that it was doing 28 km/h before entering the bend. The tram started shaking to the left and right after completing the bend. 5.Derailment marks found on the ground indicated that after derailment, the tram had run on the road surface towards the right hand side and crossed to the eastbound track. The distance from the initial derailment point to the overturned position was about 28 metres. 6.The shelter roof of the tram stop near Bank Street (eastbound) was damaged, while the pedestrian railing on the left was damaged. 7.Mr Lo was arrested at 5:01 am on the same day. 8.The EMSD inspected the tram and found no irregularities in its braking systems or electrical and mechanical parts. According to the recorded data, and taking into account the maximum range of error, the estimated speed of the tram at the point of derailment was between 28.2 and 31.2 km/h. 9.Also according to the recorder, the tram continued motoring after derailment. The driver-controlled handled position changed from “motoring” to “maximum braking force” at the last one second before the tram speed was zero. 10.Forensic scientist examined the CCTV footage and found a tram speed to be 29 +/-3 km/h before it derailed and overturned. 11.According to the traffic control superintendent of Hong Kong Tramways, the internal guidelines stipulate that the speed limit for trams entering sharp bends is 8 km/h or below, while the speed limit for trams entering normal bends is 15 km/h in order to prevent derailment. Mr Lo had been reminded of such speed limits when he was trained. 12.As a result of the accident, Mr Lo suffered from superficial abrasions over his left knee and left arm. He was discharged on the same day with no sick leave given. 13.Nine passengers on the tram suffered from minor injuries, while two passengers suffered from grievous bodily harm. 14.Mr Wong Kin Chuk (aged 64) suffered from a teardrop fracture at his spine, partial dislocation of left shoulder joint, a sprained neck and left shoulder joint. Surgery was conducted and he was hospitalised for a total of 20 days. 15.Mr Wong Yiu Chor, Joe (aged 59), suffered from a fractured left clavicle and left scapula, tenderness over his left shoulder and left upper back, and superficial abrasion over his right hand. He was hospitalised for 4 days. 16.Lastly, upon inquiry from me, the prosecution accepted that the bend in question is only a normal bend, and not a sharp bend. Criminal record 17.Mr Lo has both a clear criminal record and a clear road traffic conviction record. Antecedents 18.The antecedents statement which is agreed shows Mr Lo is aged 24 and was so at the time of the offence. He received high school education. He started working at HK Tramway Co Ltd since 4 January 2016. He resided with his family including parents in Ap Lei Chau. Mitigation 19.Mr Nelson Lam of counsel instructed by Peter WK Lo & Co mitigated on behalf of Mr Lo. 20.The following is a summary of the mitigation submissions. 21.The seriousness of the offence is acknowledged. 22.Mr Lo pleaded guilty thus saving costs of calling 32 witnesses; asked for full credit. 23.Mr Lo has never committed any offence in Hong Kong, criminal or road traffic-related even though Mr Lo has a driving licence. 24.Both Mr Lo and his brother have interest in engineering including motor vehicles; brother turned out to become airline pilot. Mr Lo on the other hand started work in Turbojet for a year; then joined the food industry but he still lingered in the memory of engineering works so he joined the tram company. 25.Mr Lam submitted 14 letters (in Chinese) from, variously, Mr Lo himself, his family members, church, high school teachers, previous and current colleagues, a family friend, a friend, a District Council member, and a Legco member. 26.Mr Lam also submitted a total of 13 certificates of various types certifying that Mr Lo had contributed to society in different ways in a myriad of capacities. 27.I shall not go into the details of the letters or the certificates save to say that both types of documents paint a good picture of Mr Lo as a helpful, kind, and responsible member of society for many years. 28.The circumstances of the offence were that it happened in midnight with less traffic and less passengers and less road users. 29.Unwittingly, Mr Lo allowed himself to get into a situation and recklessly drove faster hoping to return home earlier to see his family members. 30.There was no evidence that he was racing with a bus. The utterance to the police right after the offence was just what he thought at the time and was not an attempt to blame someone else. 31.Mr Lam cited a number of authorities (more details below) with a view to showing that imprisonment though a proper reminder to drivers that a vehicle is always a dangerous weapon, applied only to drivers causing death as far as those authorities were concerned. 32.In this case, Mr Lo has caused a good deal of shame to himself and embarrassment to his family members. Mr Lam submitted that as there were no deaths in this case, a Community Service Order (which is similar to imprisonment) would be a sufficient punishment and warning to Mr Lo who had driven recklessly. 33.Mr Lam cited the following cases:-
Background report 34.I called for a background report because of Mr Lo’s young age and completely clear record in order to assist me in my sentencing task. I repeat here an extract which more or less sums up Mr Lo’s background:-
Further mitigation after the release of the background report 35.Mr Lam made a set of further mitigation submissions after the release of the background report. 36.The following is a summary. 37.The report has been explained to and agreed by Mr Lo. 38.Mr Lam referred to another District Court sentencing case, namely HKSAR v Man Chun Pang (transliteration), DCCC 671/2017 (reasons allegedly delivered on 12 March 2018), allegedly a case of dangerous driving causing death with one death and 20 injured persons where the bus driver was sentenced to 45 months’ imprisonment; and he was also disqualified for 5 years. However, written reasons were not supplied to me nor am I able to locate them on a moment’s notice. 39.Mr Lam relied on this case to support the submission that imprisonment terms are confined to those cases of dangerous driving causing death. 40.Mr Lam repeats his request that I consider CSO as a sentencing option. 41.Mr Lam has no submissions to make in respect of the disqualification order save to say that Mr Lo accepts it. Sentence 42.I have considered the mitigation submissions including the further mitigation submissions made by Mr Nelson Lam. 43.I have seen the photographs submitted by the prosecution with the consent of Mr Lam. 44.By virtue of section 4 of Cap 374, section 36A applies to driving a tram. 45.The maximum penalty for a section 36A offence is 7 years’ imprisonment and a fine at level 5 ie $50,000. A conviction also carries a mandatory disqualification for a specified minimum period unless special reasons exist. 46.There is no sentencing tariff for this type of offence. 47.I say at the outset that for the reason that the maximum penalty for the offence of dangerous driving causing death was increased from 5 years’ to 10 years’ imprisonment for offences committed on or after 4 July 2008, any case authorities on quantum and not on principle and which dealt with that offence committed prior to that date are irrelevant to my sentencing task for the associated offence of dangerous driving causing grievous bodily harm. That respectfully disposes of the need to consider the first, third and fourth cases cited by Mr Lam. 48.For the fifth case, ie the case of Li Fai, I note it is a magistracy appeal case heard in the Court of First Instance. With the greatest respect, it has no binding force on this court. A similar point may be made of the four District Court first instance cases (including the latest one of DCCC 671/2017 which I have not been able to read) which are no more than individual instances of sentencing and which no doubt are case-specific in terms of the factual including any aggravating and mitigating circumstances; they are of limited value to me in my present task. 49.I would also make the point that the submission made by Mr Lam that imprisonment terms are confined to death cases is plainly incorrect as illustrated by the last 2 CACC cases cited by Mr Lam himself. 50.The second case cited by Mr Lam ie the case of Lam Kin Hung discloses no more than a principle about the purpose of a CSO as a sentencing option. 51.As is said in the case of HKSAR v Lee Yau Wing [2013] 1 HKC 572, a case of dangerous driving causing grievous bodily harm, and this is taken from the holding no 2, “Rather than trying to discern from other cases, the court found it was more helpful to identify the sentencing principles that must be accommodated when sentencing for an offence of this nature and level of seriousness, namely, the principles of retribution, deterrence, and denunciation. In order to maintain public confidence in the sentencing system, a judge should bear the principles in mind when considering the appropriate level of punishment for the offender. Then the sentence imposed should be a balanced, proportionate and just one. However, the dominant sentencing principle for this offence was general deterrence but the severe sentences that were imposed in order to deter also had a secondary purpose of educating the public as to the potential dangers to others involved in driving a motor vehicle and the social responsibility that rested on the shoulders of all drivers to drive safely and with due regard to others.” 52.In HKSAR v Chan Chi Chiu Louis [2013] 5 HKC 162, a case of dangerous driving causing grievous bodily harm, it was held that the defendant’s culpability should be the dominant component in the sentencing exercise even though the outcome of the offence was also an important matter for the sentencing judge to take into account; it was also held that since the focus was on the culpability of the defendant’s driving, his clear record and general good character carried little weight; that the dominant sentencing principle was general deterrence with principles of retribution and denunciation being also of relevance. 53.In HKSAR v Wu Yat Cheung, supra, a case of dangerous driving causing grievous bodily harm (as well as causing death) cited by Mr Lam, Lunn JA (as he then was), in giving the judgment of the Court of Appeal, said at para 23:-
54.Before emphasizing that the offences in that case called for deterrent sentences, the Court of Appeal in Wu Yat Cheung also endorsed the observations made by the sentencing judge:-
55.In Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, a case of causing death by dangerous driving and causing harm to persons by racing vehicles, Ma CJHC (as he then was), in giving the judgment of the Court of Appeal, said at para 17, that the case was illustrative of “the need to deter those who, in pursuit of commercial gain, or indeed for any other reason, place at risk the lives of members of the public who entrust their safety to drivers of public transport vehicles …… that in the case of dangerous driving the fact that the driver is driving a public transport vehicle is an aggravating feature and that traffic violations in such circumstances will be met with no sympathy whatsoever by the courts.” 56.In Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, a case of dangerous driving causing death, the Court of Appeal after referring to the case of Poon Wing Kay, supra, and R v Cooksley & others [2003] 3 All ER 40 (again a case of dangerous driving causing death when the maximum sentence was then 10 years’ imprisonment) said in para 37 that “[i]n assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness. In between there are varying degrees of culpability depending on the presence of the [16] aggravating factors which were referred to in Cooksley at para 15.” 57.At para 39, the Court of Appeal listed the 6 mitigating factors that the sentencing court must take into account, namely:-
58.The Court of Appeal then at para 40 drew out a table of sentences considered by Cooksley in respect of four categories of culpability not as tariff but as a cross-checker. It must be emphasized that this table of sentences are for the offence of dangerous driving causing death where the maximum sentence at that time in England was 10 years’ imprisonment. For the first category of no aggravating circumstances, the range of sentences is 12-18 months. For the second category of intermediate culpability: momentary dangerous error of judgment or a short period of bad driving aggravated by a habitually unacceptable standard of driving, by the death of more than one victim or serious injury to other victims or by the offender’s irresponsible behavior at the time of the offence, the range of sentences is 2-3 years. For the third category of Higher culpability where the standard of the offender’s driving is more highly dangerous, eg the presence one or more factors of (1) to (9) [listed in para 38 of Liu Kwok Chun], the range of sentences is 4-5 years. For the fourth category of Most serious culpability, the range of sentences is 6 years onwards. 59.For the avoidance of doubt, I have also considered the remaining case cited by Mr Lam, namely the case of Lau Tak Kwong. 60.Needless to say, the present offence and the circumstances surrounding it are very serious. Mr Lo is lucky that there was no loss of life. 61.I have considered the point made by Mr Lam that it was midnight with not too many passengers on board the tram. 62.I have considered the overall criminality of Mr Lo’s conduct in the circumstances in which he found himself and the overriding need for deterrence in this type of case. I am satisfied that immediate custodial sentence is the only realistic option. 63.In the present case, I am satisfied that at the time of or before the accident, by failing to apply the correct speed when negotiating the bend, Mr Lo was suffering from a short period of bad driving. 64.However, the most serious aggravating feature that stands out in this case is that he was the driver of a tram and a tram is a public transport vehicle (vehicle in the loose sense because by legislative definition, a tram is not a vehicle) which means that Mr Lo was putting multiple passengers at risk of really serious injuries and did indeed cause such injuries to two such passengers. A less serious but nonetheless still significant aggravating feature is that he had caused injuries albeit minor injuries to 9 other passengers not to mention the shock and terror which must have fallen on them in the immediate aftermath of the toppling over of the tram. 65.With the above aggravation in mind, I am satisfied that Mr Lo’s driving belongs to the lower middle end of the intermediate culpability range of seriousness. I am satisfied that a notional starting point of 2 years 3 months would not have been too high had the offence been dangerous driving causing death. However, the offence is not that but is dangerous driving causing grievous bodily harm and therefore an allowance must be made to take account of the lower maximum sentence and obviously the less serious consequences flowing from the dangerous driving conduct. 66.Mr Lo, please stand. 67.I am satisfied that a starting point of 18 months would fit Mr Lo in the overall circumstances of the offence. For his early plea, I give him full credit and take away one-third. That comes down to 12 months. 68.Mr Lo (aged 24) joined the tram company in January 2016; and the accident happened in April 2017. Allowing for the initial training period, I am reasonably satisfied that Mr Lo’s experience is not such that he could be described as an experienced driver of trams even though he was no doubt qualified to drive one. As such, I accept that his inexperience might have contributed to the commission of the offence. 69.What this means is Mr Lo has exceptionally satisfied the first 5 of the 6 mitigating factors that I am obliged to consider (including the plea of guilty for which a 1/3 discount has already been given). For this reason, I give Mr Lo a further one month discount off the sentence. 70.There are no other mitigating factors of sufficient weight that warrant a further discount. 71.In conclusion, Mr Lo will go to prison for 11 months, and he is disqualified from driving all classes of vehicles for a period of 2 years.
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Cases cited in this judgment