HKSAR v. Cheung Kai Yau

DCCC 603/2019

[2020] HKDC 255

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 603 OF 2019

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REASONS FOR SENTENCE

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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.On 23 November 2018 the defendant was driving medium goods vehicle, registration mark MD 2227, when he knocked down Madam Kwok Chor Chun, aged 74, on the zebra crossing near the intersection of Wah Fu Road, Waterfall Bay Road and Wah Cheung Street.  

3.Full particulars of the offence are set out in the facts admitted by the defendant. In summary at around 1630 hours the defendant was driving westbound along Wah Fu Road near Wah Cheong House, Wah Fu (II) Estate.  The defendant stopped his vehicle right in front of the zebra crossing. 

4.When the defendant pulled away the offside front of his vehicle knocked down Madam Kwok who was crossing the road slowly from the defendant’s nearside. 

5.The defendant did not immediately stop and the offside front wheel of his vehicle rolled over Madam Kwok’s left leg, trapping her leg underneath the wheel.  Only when Mr Ho, who witnessed the accident, shouted out “Hey” in Punti did the defendant stop his vehicle[2].

6.The police arrived and conducted a screening breath test on the defendant.  No alcohol was detected from the defendant’s breath.  Under caution the defendant, inter alia, said that he did not see the old lady clearly and knocked her over.

7.In a subsequent cautioned interview, the defendant, inter alia, explained that this was the first time he had driven along Wah Fu Road and that when he pulled away from the zebra crossing at around 4-5km/h he kept looking at the intersection and overlooked the pedestrians at the crossing.

8.The road surface was dry, the traffic flow was normal and there was sufficient lighting at the time.

9.Madam Kwok was admitted to the Queen Mary Hospital. Madam Kwok was found to have multiple injuries to her lower left limb including fractures of the tibia and fibula and left distal femur comminuted open fracture with overlying tissue loss.  Madam Kwok was transferred to the operation theatre for emergency left above knee amputation and tissue debridement[3].

Mitigation

10.In passing sentence, I have carefully considered the oral and written submissions of Ms Wong,including that the defendant, aged 64, has worked hard his whole life to bring up his two sons who are now aged 30 and 27[4].

11.I take into account that the defendant has a clear criminal record.  The defendant has held a driving licence for forty-four years and has been a lorry driver since 1981 during which time he has received fixed penalties for failing to comply with traffic signals in 2015 and speeding in 2018 and one conviction for careless driving in 2018[5].

12.I take into account that the defendant is remorseful for what happened and does not plan to drive anymore and rely on his savings in the future[6]. 

13.I have read the mitigation letter written by the defendant’s youngest son who is in court today together with his brother to support their father.

Dangerous Driving

14.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[7].  These factors were revised in R v Cooksley[8].  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[9] emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

15.I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving[10].  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[11].

16.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[12].

17.In HKSAR v Lee Yau Wing, 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[13].

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

19.Similarly, in Secretary for Justice v Wong Wai Hung, a case also of dangerous driving causing death, the Court of Appeal said that it was necessary to drive home the message that the court takes a very serious view of accidents on zebra crossings[15].

20.Ms Wong submits that the defendant’s driving was a momentary distraction or lapse of judgment and did not see he had hit Madam Kwok because of the height of his vehicle[16].

21.I disagree.  This was very poor judgment which failed to give precedence to pedestrians on the zebra crossing.  If the defendant had looked to his nearside he would have seen Madam Kwok step onto the zebra crossing and pass in front of his vehicle.

22.I do however accept that the defendant did not drive with a conscious disregard for the safety of the pedestrians using the zebra crossing.  The defendant unlike many drivers did stop at the zebra crossing; pulled away at a very slow speed; was not driving under the influence of alcohol and was one of the persons who immediately called the police[17].

23.If the defendant had however paid attention to the zebra crossing when pulling away and not the road ahead, the defendant would have seen Madam Kwok and the accident would not have occurred. 

24.I am satisfied that by failing to ensure there was nobody crossing the zebra crossing before he pulled away, the defendant’s driving falls into the higher end of the least culpable dangerous driving range.     

Injuries

25.Madam Kwok was hospitalised for nearly three months and underwent three operations with her left leg amputated up to the hip joint.  After the operations Madam Kwok was transferred to the MacLehose Medical Rehabilitation Centre for physiotherapeutic treatment for approximately two months.  Madam Kwok was then admitted to the Caritas Evergreen Home for rehabilitative care and returned home on 27 March 2019, over four months after the accident[18].

26.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.

27.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[19].

28.I am satisfied this is such a case.  Prior to the accident Madam Kwok was able to take care of herself.  With the left leg being amputated Madam Kwok can no longer look after herself.   Madam Kwok is now wheelchair bound and her family have employed a domestic helper to look after her.  Madam Kwok also panics every time she has to cross a road[20].

Sentence

29.In Secretary for Justice v Poon Wing Kay the Court of Appeal further said that[21]: -

“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.”

30.Ms Wong invites the court to impose community service or a short term of imprisonment[22].  In support Ms Wong has submitted four sentence cases in the District Court where sentence ranged between community service and 6 months imprisonment[23]. 

31.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.  Although two cases concern the failure to comply with traffic lights, none involve the knocking down of pedestrians on zebra crossings. 

32.I do not find these cases of assistance.  Ms Wong did not refer the court to Secretary for Justice v Chu Wing Yin Christine which judgment was handed down in December last year[24].On an application for review of sentence the Court of Appeal in holding community service was not appropriate where pedestrians were knocked down on a pedestrian crossing extensively reviewed sentence cases not only in Hong Kong but also in Australia and the United Kingdom.

33.The Court of Appeal said the normal sentence for this type of offence is an immediate custodial sentence and that only in exceptional circumstances would other sentencing options be available dependent upon the circumstances of the offence and of the offender[25]. I am satisfied there are no exceptional circumstances to impose a community service order.

34.Taking into account all the circumstances including that the defendant, a professional driver, failed to see Madam Kwok on the zebra crossing; the impact of the injuries on the daily life of Madam Kwok; that the defendant is remorseful for what happened and was one of the persons who immediately called the police, I am satisfied the proper starting point after trial is 15 months’ imprisonment. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 10 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. 

36.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.  

37.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. 

38.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. 

39.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.