HKSAR v. Shiu Hung Wai

DCCC 185/2020

[2020] HKDC 837

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 185 OF 2020

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of dangerous driving causing grievous bodily harm. 

Facts

2.The material location (the “Location”) is Pak Tam Road near the junction of Hoi Ha Road, Sai Kung, New Territories, in Hong Kong. The material section of Pak Tam Road is a 2-way road consisting 1 lane on each bound, and there are double white lines separating the 2 lanes.

3.The Location is a curve where the southbound (towards Sai Kung Town Centre) bends to the left, while the northbound (towards Wong Shek Pier) bends to the right.

4.At the material time, the weather was fine. The road was dry, and lit by streetlamps. The prescribed speed limit was 50 km/h.

5.Around 8:42pm on 14 September 2019, male WONG Yiu-nam Samuel (the “Victim”) was driving a taxi (the “Victim’s Taxi”) with 1 passenger onboard northbound on Pak Tam Road approaching the Location. The speed of the Victim’s Taxi was around 30-40 km/h. At the same time, the Defendant was driving a light goods vehicle bearing registration mark WF 3174 (the “Defendant’s LGV”) with 4 passengers onboard southbound on Pak Tam Road approaching the Location. In front of the Defendant’s LGV on the same lane, there was another light goods vehicle (the “Front LGV”) travelling. They belonged to the same company, and both of them were taking company workers who had finished their work back to Kowloon.

6.The incident took place in the following sequence:

(1) When both the Victim’s Taxi and the Defendant’s LGV approached the Location from opposite directions, the Defendant’s LGV and the Front LGV were 2-3m apart from each other (according to the VRI of the Defendant), and the Defendant’s LGV suddenly cut into the northbound lane.

(2) When the Defendant’s LGV was on the northbound lane, the Defendant wanted the Defendant’s LGV to cut back into the southbound lane.

(3) Therefore, the Defendant’s LGV accelerated in an attempt to overtake the Front LGV, which was to the left of the Defendant’s LGV, so that the front of it and that of the Front LGV were on the same level.

(4) The Defendant’s LGV travelled on the northbound lane for at least 22 metres without slowing down.

(5) Shortly afterward, the Defendant started to lose control of the Defendant’s LGV, and upon a long horn, the Defendant’s LGV collided head-on with the Victim’s Taxi on the northbound lane. The Defendant’s LGV overturned to its offside, and squashed a substantial part on the right side of the Victim’s Taxi.

7.The police were called. PC 14602 was the first officer arriving at the Location at 9:10pm. He found the Victim severely injured and unconscious. The Victim was immediately sent to hospital.

8.A Police Officer took 22 photos at the Location showing the aftermath of the collision, and also prepared a sketch depicting the road condition of the Location.

9.Medical findings on the Victim are as follows:

(1) he was diagnosed with mesenteric injury, facial fracture, subdural haemorrhage and subarachnoid haemorrhage;

(2) CT scan found that he sustained traumatic brain injury with subdural haemorrhage, subarachnoid haemorrhage, and contusion haemorrhage in right frontal lobe;

(3) there were maxilla, zygomatic fractures and nasal septum fracture;

(4) there was small amount of hemoperitoneum and stranding in small bowel mesentery and sigmoid mesentery suspicious of mesenteric injury;

(5) he was admitted to ICU and stayed there until 27 September 2019, when he was transferred to general surgical ward;

(6) there were fracture of right radial shaft, fracture dislocation on right foot, and right tibial plateau fracture.

10.Wong is still hospitalized.

11.Other than the Victim, the accident also injured the following persons:

(1) The passenger on the Victim’s Taxi, YUEN Dick-hin, suffered chest and back pain.

(2) The Defendant himself suffered forehead, right hand, and right leg injuries.

(3) The passenger on the Defendant’s LGV, WONG Sai-kin, suffered injuries on the right part of his head.

(4) The passenger on the Defendant’s LGV, LAM Chee-tak, suffered fractures on his right hand and bleeding on the right part of his head.

(5) The passenger on the Defendant’s LGV, LEUNG Wai-yip, suffered chest pain.

(6) The passenger on the Defendant’s LGV, LAM Dick-hong, suffered chest pain.

12.Dr. TAO Chi-hang, Government Chemist, examined the Location, and had the following findings:

(1) 3 yaw marks, a single one of which measuring 22.3m and another pair of which measuring 18.4m, were observed on the northbound lane. The pair of yaw marks pertaining to the rear double tyres were at the offside of the single yaw mark made by the offside front tyre.

(2) The radius of curvature of the offside front wheel yaw mark was 39.1m, while that of the offside rear double-wheels yaw mark was 45.7m. The average radius of curvature was 42.4m.

(3) The facts that the 3 yaw marks were left on the road, and that the offside rear double wheels tracked out of the offside front wheel indicate that the Defendant’s LGV yawed sideway and the Defendant had lost control of the Defendant’s LGV as follows:

(a) The Defendant’s LGV entered and meandered the left turn at the Location at a speed too high and unsafely incompatible with such a radius of curvature.

(b) At such a speed so high relative to the radius of curvature, the Defendant’s LGV yawed sideway and began to be out of the Defendant’s control.

(4) These yaw marks became thicker and more prominent as they progressed towards the final stopping positions of the Victim’s Taxi and the Defendant’s LGV.

(5) The progressive thickening of the yaw marks suggested that the Defendant’s LGV became more and more inclined towards its offside when the Defendant’s LGV was approaching the point of impact with the Victim’s Taxi.

(6) The sharper curve toward the nearside at the end of the single yaw mark suggested that the Defendant might have tried to turn the Defendant’s LGV further to its left, which caused the Defendant’s LGV to topple.

(7) Before the Defendant’s LGV completely toppled over, the offside of it hit the top of the Victim’s Taxi at the point of impact.

(8) After entering into the northbound lane, the Defendant lost control of the Defendant’s LGV, which overturned to its offside and collided with the Victim’s Taxi.

(9) The speed at which the Defendant’s LGV was travelling was at least 57km/h, as this was the minimum speed that could have caused the Defendant’s LGV to overturn in such circumstances.

13.At the material time, the Defendant drove the Defendant’s LGV dangerously on a road, namely

(1) speeding;

(2) cutting double white lines into the opposite lane;

(3) continuing on the opposite lane for at least 22 metres without slowing down but having accelerated in an attempt to overtake the Front LGV and cut back into the southbound lane;

(4) meandering a left turn at a speed too high and unsafely incompatible with such a radius of curvature, resulting in the loss of control of the Defendant’s LGV and its skidding; and

(5) ultimately colliding with the Victim’s Taxi causing grievous bodily harm to the Victim.

14.At the material time, the Defendant’s standard of driving fell far below the standard which would be expected of a competent and careful driver, and it was obviously dangerous.

15.The latest medical report, dated 17 July 2020, indicated that the victim still suffers from pneumonia, which requires medical and intensive physiotherapeutic treatments, apart from his neurological recovery being suboptimal. 

Mitigation

16.The Defendant is aged 40, said to be a professional driver for 16 years. He has the custody of three under-aged children at school after divorce. Together they live with his fiancée, who worries so much about him in the present case that she is diagnosed with major depression. She is wholly dependent on him for financial need and personal care.

17.He had a theft record in 2001, resulting in a suspended sentence and a fine. Before the present accident, he had the following traffic contraventions:

(1) speeding by more than 15 kmh but less than 30 kmh in 2013 (offence date, same for hereinbelow);

(2) failing to comply with road markings in 2019;

(3) overloading in 2019;

(4) speeding by more than 15 kmh but less than 30 kmh in 2019.

18.His counsel Mr. Cheung submits that the Defendant had a good driving record. I regard the speeding record in 2013 long spent but the last three records are reflective of poor compliance of traffic regulations, which may lead to accidents. His driving record is not a mitigating factor. 

19.According to him in the police inquiries, when he saw the dark shadow of an animal that dashed out from the left tree side, he instinctively swerved to the right and crossed over to the opposite lane. The Front LGV was to his left, so he could not cut back to his original lane. Instead of slowing down to let it pass first, he made the wrong decision to accelerate to 57 kmh to try to overtake it. After meandering for 22 metres on the opposite lane, his LGV toppled and quashed the taxi approaching him.  

20.He is deeply remorseful for causing such accident. 

Sentencing considerations

21.Mr. Cheung refers me to various cases. 

22.In R v Cooksley [2003] EWCA Crim 996, the English Court of Appeal identified the relevant factors in sentencing cases of dangerous driving causing death and considered 12 – 18 months appropriate on a plea of guilty in the absence of aggravating circumstances.  A starting point of two to three years is appropriate where a momentary dangerous error of judgment is involved.  The extent of injuries to other road users is one of the factors. 

23.In HKSAR v Lee Yau Wing [2013] 1 HKC 572, a minibus on the first lane had stopped at a red traffic light. Its presence obstructed the view of the defendant, who was driving a private car on the second lane towards the same light. An elderly female was crossing the pedestrian crossing from the first lane towards the second lane at the flashing green pedestrian light when she was knocked down by the defendant’s car. Before that, he had sounded his horn. She suffered fracture to her knee and injury to her leg. The starting point of 15 months was affirmed by the Court of Appeal on the ground that it was a deliberate disregard of the red traffic light.  It was an act of dangerous driving in the middle to the lower end of the range of seriousness. 

24.In HKSAR v Fu Chi Yung, Denny DCCC 416/2015 the defendant was driving a seven-seater when he saw a dog on his lane, so he steered to the opposite lane but oversteered and knocked down the motorcyclist approaching on the opposite lane.  The victim suffered injuries to his hand, which fully recovered after several months.  The sentence was 6 months on a plea of guilty. 

25.In HKSAR v Yu Chi Wang (Transliteration) HCMA 395/2012, a Chinese judgment, the defendant overtook the front car by using the opposite lane but lost control and rammed into the front car, causing grievous injuries to the front car driver.  The magistrate sentenced him to 6 months after trial. There was no appeal against sentence. The appeal against conviction was dismissed.

26.In HKSAR v Chan Chin Hung DCCC 18/2018 the defendant was driving a medium goods vehicle in a line of traffic in the morning rush hour at the entrance of the cross-harbour tunnel. As he suddenly changed lane, his vehicle crashed into a stationary taxi, which lost control and triggered off a chain collision with other vehicles. The defendant’s vehicle changed back to the original lane and crashed into the parapets of the carriageway and another private car, which lost control and triggered off another chain collision with other vehicles. Eventually, including the defendant’s vehicle, 9 vehicles were severely damaged. A taxi passenger was rendered unconscious, diagnosed with serious multiple injuries but later fully recovered after hospitalization for 4 days and follow-up treatments. Two drivers sustained minor injuries. The judge took 15 months as the starting point.

Sentencing this Defendant

27.First, it was a momentary dangerous error of judgment to move to the opposite lane, instead of slowing down or stopping on his own lane, when haunted by the animal from the left tree side. Secondly, it was a traffic contravention to cross the double white lines. Thirdly, it was a momentary dangerous error of judgment to accelerate to try to overtake the Front LGV. In doing so, he exceeded the speed limit of 50 kmh by going at 57 kmh for 22 metres on the opposite lane. Fourthly, he meandered the turn at too high a speed for its curvature so that his LGV toppled and quashed the taxi. Fifthly, the accident caused the taxi driver very serious injuries, for which he is still being hospitalized with neurological recovery being suboptimal after 10 months, according to the latest medical report.

28.I take a starting point of 18 months. The only mitigating factor is his plea of guilty, for which I give him a one-third discount. The sentence is 12 months. I order for disqualification for 2 years. He shall complete the driving improvement course before retrieving his driving licence.