HKSAR v. Liu Kam Wan

DCCC 438/2018

[2019] HKDC 179

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 438 OF 2018

____________

____________

REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of causing grievous bodily harm to Huang Xiaoyi 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 the defendant on 20 December 2018.  Sentence was adjourned for an update medical report of Miss Huang; translation of a victim impact statement and translation of Reasons for Sentence submitted by Ms Ho.

3.In summary, the defendant, a public bus driver for CityBus, was driving double decker bus SF 4453 along the first lane of Nathan Road, northbound.  On reaching the junction with Argyle Street the defendant stopped the bus at the red traffic light. 

4.At about the same time Miss Huang Xiaoyi and her friends walked across the pedestrian crossing at Argyle Street and were waiting to cross Nathan Road.  Miss Huang Xiaoyi along with four other pedestrians was standing near the corner of the pavement outside the guardrails. 

5.When the traffic light changed to green the defendant made a left turn onto Argyle Street.  In the course of turning left the bus drove close to Miss Huang.  Miss Huang let go of her suitcase and tried to move backwards, however because of the guardrails Miss Huang could not move far enough back to avoid being hit by the bus.

6.The nearside of the bus hit the suitcase and the nearside exit door of the bus hit Miss Huang causing Miss Huang to fall on the ground.  Miss Huang heard the sound of sideswiping of the guardrails at which time the nearside second axle wheel rolled over Miss Huang’s foot.   

7.Photographs showing the location of the accident; where the bus eventually stopped; the damaged suitcase and the damage to the bus have been submitted to court. 

8.Video footage from the camera installed in the front of the bus (camera 1) showing where Miss Huang was standing when the defendant turned left has been played in court.  The footage from cameras installed near the rear exit door (camera 3) and at the back of the bus (camera 6) have also been played in court. 

9.Dr Tao Chi Hang, forensic scientist, who examined the footage was of the view that the nearside rear corner; the exit door and the nearside 2nd/3rd axles of the bus mounted the kerb[2].

10.Miss Huang was admitted to Queen Elizabeth Hospital having sustained very serious injuries to the right side of her body, including a fractured pelvis; fractured spine; fractured hip and fracture dislocation over the right ankle.  Miss Huang underwent a right below-knee-amputation. 

11.In a cautioned interview the defendant said, inter alia, that after the traffic lights turned green he turned left into the second lane of Argyle Street; he was travelling at a speed of 10-20 km/h; he saw Miss Huang and her friends standing outside the guardrails; he sounded the horn to give a warning because the people were standing too close to the road;  when there was no response from Miss Huang he looked ahead and continued to turn left; he was reckless when making the left turn by driving too close to the pavement causing the bus to mount the kerb and hit Miss Huang; and when he heard the sound of a collision he looked in his near side mirror and saw that the bus had hit Miss Huang so he alighted from the bus to check Miss Huang and call the police.

Mitigation

12.In passing sentence, I take into account everything said on behalf of the defendant by Ms Ho, in particular that the defendant, aged 48, is responsible for looking after his mother, aged 83 and that when he is not working the defendant spends his holidays hiking, swimming and cycling. 

13.Ms Ho informs the court that the defendant no longer drives and does not plan to drive again because when he tried to drive after the accident he was unable to get the accident out of his mind.  The defendant I am told is now working as a security guard. 

14.Ms Ho has submitted a letter from the defendant apologizing to Miss Huang.  I have read that letter and accept that the defendant is genuinely remorseful for what happened.  I also take into account that the defendant was the one who called 999. 

15.The defendant has held a driving licence for 24 years.  Ms Ho submits that the defendant has not committed any serious traffic violations.  I disagree. Although the defendant has no convictions for careless driving or dangerous driving his driving record cannot be said to be good. 

16.In 2013 the defendant was disqualified under the Road Traffic (Driving Offence Points) Ordinance having accumulated 15 points for three offences of failing to comply with traffic signals committed in less than one month.  In 2015 the defendant again failed to comply with traffic signals and in 2016 drove in excess of the speed limit by more than 15 km/h.

17.I take into account the defendant has a clear criminal record. 

Sideswiping the guardrails

18.Miss Huang said she heard the sounds of sideswiping guardrails[3].  Photographs 14, 16, 17, 36, 38-43 show marks on the left side of the bus consistent with sideswiping the guardrail. 

19.Forensic scientist Dr Wong examined whether there was paint transfer from the guardrails to the bus.  Dr Wong’s findings were that foreign black smears on the bus were found to agree in colour but the chemical composition differed to the control paint from the guardrails.  Dr Wong was therefore of the opinion that evidence of contact in the form of paint transfer from the guardrails to the bus could not be established[4].

20.Ms Ho says the defendant did not know if he sideswiped the guardrails and did not know if the marks shown in the photographs were caused in the accident.

21.Ms Fu explained that in view of the opinion of Dr Wong the prosecution could only say Miss Huang heard sounds of sideswiping guardrails but not conclusively say the bus did sideswipe the guardrails. 

22.When Miss Huang tried to move backwards to avoid the bus she could go no further because of the guardrail.  This was when the nearside of the bus hit the suitcase and the nearside exit door of the bus hit Miss Huang causing Miss Huang to fall on the ground. 

23.I therefore proceed to sentence on the basis that the defendant mounted the pavement close to the guardrails but without actually hitting the guardrails.

Dangerous Driving

24.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[5].  These factors were revised in R v Cooksley[6].  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[7]emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.

25.I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving[8].  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[9].

26.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[10].

27.Ms Ho explains that the defendant was familiar with the route which he had driven for approximately two months, five times per day.  When the defendant set off to turn left into Argyle Street he noticed that some pedestrians were standing close to the kerb.  The defendant therefore sounded the horn to warn but not everybody moved away. 

28.Ms Ho submits that there are no aggravating features such as the commission of other traffic offences; excessive speeding or driving under the influence of alcohol or drugs. 

29.Ms Ho says that the defendant believes he turned the steering wheel too much and too quickly.  Ms Ho submits that the defendant’s driving was a momentary lapse of judgement which resulted in very serious injuries to Miss Huang. 

30.The defendant being aware of the presence of pedestrians standing close to the road should have ensured that when turning left he was able to complete the manoeuvre without driving close to the pedestrians.  I note the section of Argyle Street has four lanes providing more than enough room for the defendant to make the turn safely without mounting the kerb or coming close to the pedestrians. 

31.Knowing of the presence of pedestrians close to the edge of the road, I am satisfied that by failing to safely turn left and avoid mounting the kerb and knocking down Miss Huang, the defendant’s driving falls into the higher end of the least culpable dangerous driving range.     

32.Ms Ho submits that where Miss Huang was standing was dangerous in particular as the kerb was not elevated.  I have no hesitation in rejecting the submission that Miss Huang is also at fault.  The kerb is elevated as seen for example in photographs 11, 12, 13, 23, 29, 30 & 31.  Whilst Miss Huang for her own safety should have stood behind the railings, the fact remains that if the bus had not mounted the kerb Miss Huang would not have been knocked down and seriously injured. 

Injuries

33.As already noted earlier Miss Huang sustained very serious injuries resulting in amputation of her right leg.  Miss Huang remained in hospital until 16 January 2018 at which time she was able to walk with frame independently.  By 5 December 2018 Miss Wong was able to walk unaided with prosthesis for about fifteen minutes[11].

34.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.

35.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[12].

36.In my view this is one such case where the injuries do have a dramatic impact on sentence.  Miss Huang who is just 20, 18 at the time of the accident, will have to adapt the rest of her life with a prosthetic leg. 

37.In the victim impact statement dated 9 October 2018 Miss Huang describes the injuries and treatment and that she does not know how long she will need to use a walking stick for.  Without a walking stick Miss Huang says she can walk for ten minutes at most and will experience great pain.  Miss Huang also feels sharp pain after sitting for a long time. 

Sentence

38.In Secretary for Justice v 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.”

39.Ms Ho has submitted for consideration by the court five sentence cases in the District Court[13] where sentence ranged between community service; suspended sentence to12 months imprisonment. 

40.I have considered the Reasons for Sentence in each of these cases.  The facts are very different and with respect, in my view the sentence in some cases appears to be lenient, if not very lenient.  I do not agree with Ms Ho that the driving manner of the defendant is less culpable. 

41.Knowing of the presence of pedestrians close to the edge of the road, the defendant should have ensured when turning left he could do so safely without mounting the kerb and without knocking anyone down. 

42.Taking into account that the defendant turned left without ensuring the safety of the pedestrians; the defendant mounted the kerb and knocked down Miss Huang; the serious injuries sustained by Miss Huang, who was only 18 at the time of the accident and the impact of the injuries on her daily life; the defendant is genuinely remorseful for what happened and was the one who called 999 and the defendant’s traffic record, I am satisfied that the proper starting point after trial is 1 year and 6 months’ imprisonment.  

43.Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months’ imprisonment.  I am satisfied there are no grounds to suspend the sentence or impose a community service order.

Charitable donations

44.The defendant has been an Oxfam Partner for over 12 years, contributing $600 per year.  Ms Ho also informs the court that when the defendant is out hiking and cycling to help keep the environment clean he would take an extra bag with him to pick up garbage left by others.  In recognition of making charitable donations and helping to keep the environment clean, I reduce the sentence by 1 month.  The defendant is convicted and sentenced to 11 months’ imprisonment. 

Disqualification

45.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.  I find there are no special reasons not to order the defendant to be disqualified.  Taking into account the circumstances of the driving I am satisfied that the minimum period of 2 years’ disqualification is appropriate. 

46.The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years.  

47.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 the defendant to attend and complete a driving improvement course.

48.The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification expires.  The defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and complete the driving improvement course notwithstanding the disqualification period may already have ended.