HKSAR v. Lung Gilbert

DCCC 587/2019

[2019] HKDC 1674

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 587 OF 2019

____________

____________

REASONS FOR SENTENCE

1.The defendant pleads 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 the defendant yesterday.  In summary at about 0044 hours on 2 January this year the defendant was driving a taxi, registration number JZ 8613, westbound along the 2nd lane of Ngau Tau Kok Road near Lotus Garden.  The road surface was dry and the traffic flow was normal.

3.On reaching the pedestrian crossing outside Lotus Tower Block 3 the defendant failed to comply with the red traffic light signal and failed to see Madam Wong, a 72-year-old lady, who was crossing the road at the crossing when the pedestrian light was green.  The traffic signal at the pedestrian crossing was functioning properly at the time. 

4.The front of the taxi hit Madam Wong who fell onto the bonnet of the taxi and then onto the ground when the taxi came to a halt.   Photographs have been submitted to court showing the location of the accident and where the taxi came to a halt. 

5.Madam Wong was admitted to the United Christian Hospital Madam Wong was found to have retrograde amnesia and sustained multiple fractures of the pelvis and two rib fractures as particularised in the facts admitted by the defendant and contained in the medical reports submitted to court.  

Mitigation

6.In passing sentence, I have carefully considered the oral and written submissions of Mr Hung, including the ill health of the defendant who suffers from diabetes and requires daily injection of insulin and his wife who suffers from a disease of the central nervous system and a fatty liver.  The illness of the wife has resulted in financial hardship for the family.   

7.I take into account that the defendant, aged 67, has a clear criminal record and an excellent working record.  The defendant worked for the Swire Group and DHL before establishing his own firm.  After the business folded the defendant worked as a limousine driver until his retirement in 2016.  Since his retirement the defendant has worked as a relief taxi driver.    

8.The same cannot however be said of the defendant’s traffic record.  The defendant has a poor traffic record with nine offences of speeding, one of careless driving and most relevant, three for failing to comply with traffic signals in 2017, 2018 and 2019, the last being less than 3 months after the accident.  The three offences of failing to comply with traffic signals are all while the defendant has been a relief taxi driver.

9.I have read the mitigation letter written by the defendant’s daughter, who is aged 9 and studies in boarding school on the Mainland, describing how her father plays with her and teaches her English.     

Dangerous Driving

10.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.  

11.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].

12.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].

13.In HKSAR v Lee Yau Wing, cited by Mr Hung, the court emphasised that the focus on the culpability of the driving has been adopted notwithstanding that it is sad feature of these cases that the offender is usually not a person of a criminal background but is a law abiding citizen of good character[8].

Failure to comply with the red traffic light signal

14.In Secretary for Justice v Lam Siu Tong, a case of dangerous driving causing death, the Court of Appeal said[9]:

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

15.The Court of Appeal went on to say that the running over of persons at pedestrian crossings would be a serious aggravating feature, the degree of seriousness depending on the precise circumstances and that a conscious disregard for traffic lights will likely put the case into the most serious category[10].  

16.Mr Hung is instructed that the defendant was inattentive and for whatever reason he was not concentrating on his driving when he went through the red light.  Mr Hung submits that fortunately the defendant’s speed was not that high.  The defendant told the police he was travelling at a speed of about 10km/h. 

17.There is however no direct evidence of the defendant’s actual speed save that Mr Yip informed the court that the witness said the defendant’s speed was fast.  This however is not part of the summary of facts admitted by the defendant.

18.The photographs submitted to court show that the defendant was able to stop his taxi close to the pedestrian crossing.  No tyre marks consistent with hard braking can be seen on the photographs. 

19.Whilst I do not accept that the defendant was travelling at a speed of about 10km/h, the fact the defendant was able to stop just after the crossing indicates the likely speed was not that fast.  I also take into account that the defendant was not driving under the influence of alcohol. 

20.Taking into account the road was a straight road and therefore gave a very clear view of the crossing the defendant’s driving cannot be described as momentary inattention.  There is however no evidence that the defendant for example increased his speed as he approached the pedestrian crossing.  In the circumstances I am prepared to accept that the accident was due to a lack of concentration on the part of the defendant and not a conscious disregard for traffic lights.

21.In HKSAR v Lee Yau Wing the applicant slowed down as he approached a pedestrian crossing but did not stop when the traffic light was red whereas a mini-bus did stop.  Instead the applicant continued travelling forward unable to see whether any pedestrians were using the crossing.  Travelling at a speed of approximately 15km/hour the applicant hit a 75-year-old lady but without knocking her over.   The lady sustained a fracture of the right knee from which she made a full recovery without any residual disability. 

22.The Court of Appeal said that by proceeding forward knowing the lights were red and knowing that his vision of the pedestrian crossing was incomplete revealed a wilful refusal to stop at the crossing and a deliberate risk-taking in allowing the vehicle to edge forward onto the crossing.   Such conduct, the Court of Appeal said, exhibited a conscious disregard for the traffic lights and for those pedestrians using the crossing.  

23.In the very unusual circumstances of the case the Court of Appeal said that the applicant’s driving was serious but was in the middle to the lower end of the range of seriousness.  For this level of culpability, the Court of Appeal said that the sentencing judge was right to adopt a starting point for sentence of 15 months’ imprisonment. 

24.That the degree of seriousness depends on the precise circumstances of the driving can be seen from the case of HKSAR v Lui Chung Tak where a higher sentence was held to be appropriate notwithstanding the court held the driving was not a conscious disregard for traffic lights[11]. 

25.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. 

26.The Court of Appeal finding that the defendant did not deliberately disregard the traffic light held the driving fell within the intermediate category and reduced the sentence after trial from 2 years to 20 months’ imprisonment.

27.The facts of that case have some similarity with the present case save that Madam Wong crossed the road when the pedestrian light was green. 

Injuries

28.Madam Wong was hospitalised for almost one month and was discharged after her condition gradually improved.  The medical report of Dr Hsu is updated to 8 May 2019 at which time Madam Wong was still continuing with partial-weight bearing walking exercise for her pelvis fracture.

29.Notwithstanding over seven months have elapsed since the last report no further medical report has been obtained.  Mr Yip informs the court that the police have seen Madam Wong recently and confirm that Madam Wong has made a full recovery with no permanent disability and from their observation she has no difficulty in walking. 

30.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.

31.In considering the degree of injuries sustained I also note that said in HKSAR v Lui Chung Tak that 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].

Sentence

32.In Secretary for Justice v Poon Wing Kay the Court of Appeal further said that[13]: -

“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.”

33.Taking into account that the defendant, who is a taxi driver, was travelling on a straight stretch of road with good visibility of both the traffic lights and the pedestrian crossing, failed to comply with the red traffic light signal due to his lack of concentration; has a previous traffic record for failing to comply with traffic signals; and failed to see Madam Wong who was crossing when the pedestrian light was green, until it was too late to avoid the accident, I am satisfied the defendant’s driving falls within the category of intermediate culpability. 

34.Taking into account all the circumstances, I am satisfied that the proper starting point after trial is 1 year and 9 months’ imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 2 months’ imprisonment.

Disqualification

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

36.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.  I find there are no special reasons not to order the defendant to attend and complete a driving improvement course.  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 completes the driving improvement course notwithstanding the disqualification period may already have ended.