HKSAR v. Chan Ying Ming

DCCC 165/2020

[2021] HKDC 673

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 165 OF 2020

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REASONS FOR SENTENCE

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1.In this case, Mr Chan Ying Ming was originally charged with one count of “causing grievous bodily harm by dangerous driving”. He pleaded not guilty to the charge itself but pleaded guilty to “careless driving”. The prosecution agreed to accept a lesser plea. He is therefore convicted of careless driving upon his plea and admission of facts.

Facts

2.On 6 June 2019 and at about 8 am, the defendant was driving a taxi along the second lane of Tai Po Road towards Mong Kok when he reached a light controlled pedestrian crossing.  The light was in favour of vehicles but for reasons at the time unknown to the defendant the vehicle in front stopped abruptly before the pedestrian crossing.  The defendant chose not to stop the taxi but instead swerved to the other lane to continue his journey.  It is until then he realised that the reason why the vehicle in front stopped: an old man on his electrical wheelchair was crossing the road against the direction of the traffic light. 

3.Instead of applying the brake, the defendant swerved off the traffic way to avoid hitting the old man and wheelchair.  He lost control of his vehicle, drove onto the pedestrian pavement and crashed into one of the pedestrians who were waiting to cross the road.

4.There was no evidence to show the defendant had been drinking alcohol or had exceeded the legal limit, nor was there any evidence of mechanical failures on the part of the taxi.  The weather was fine.

5.As a result of the accident, the pedestrian suffered fracture to his right leg.  He had to undergo a procedure in which his broken bone was mended by a nail.  He stayed in the hospital for about a month, after which three months later he had to undergo a third operation to remove the screw from his right hip.  As of 9^th October this year, the victim was still suffering from mild residual pain over the right thigh and he needed to walk with a stick. 

6.The defendant agreed that his manner of driving departed from the standard to be expected from a reasonable, prudent, and competent driver and he drove without due care and attention, resulting in the accident.

7.The penalty for offences of this kind depends on the culpability of the driver.  There are no clear sentencing guidelines.  The culpability is based on the defendant’s manner of driving; and how far he had departed from the standard expected of him.  In this incident, a pedestrian who had been a good, dutiful citizen, standing on the roadside waiting for the light to turn in his favour, had been injured through no fault of his own. 

8.From the facts, it was clear that the defendant had been driving in a rather cavalier manner when he should have stopped if the vehicle in front of him stopped, no matter how abruptly.  The vehicle in front of him must have stopped for a reason that the driver of the vehicle following it would not be able to see.  Of course, in this instance, the old man on a wheelchair was at fault.  But the power of both sides are unequal.  The defendant was in charge of a very powerful machine which could result in serious damage to property and life.  Along with the privilege of driving this machine came a hefty obligation to take due care.

9.There are ways we can think of that he should have behaved (such as stopping), and if he did elect to the swerve, he should have done it slowly.  Upon seeing that there is an old man on his track, he should have stopped instead of swerving to the left onto the pedestrian pavement. 

10.This is not the worst of the case, as I have pointed out.  But the defendant is still to blame especially the defendant was a taxi driver.  He made a living on the road.  He should have been aware that there were people behaving erratically or unreasonably on the road.  Since he is in charge of much more powerful machine, he should has given more leeway to these people. 

11.I have considered the facts of the case and I do not think that this is the kind of a case which I should treat it lightly.  I would consider a short term of imprisonment sufficient reminder for anyone who is in the position of the defendant to be careful next time he is on the road.

12.Since the defendant had pleaded guilty and have indicated his plea of guilty in the first instance of careless driving, I will adopt a starting point of 3 months, reduced to 2 months on account of his guilty plea.

13.The defendant is aged 51.  He has a number of previous criminal record and I accept his counsel’s submission that he has turned over a new leaf and tried to live like any other responsible citizen.  The only consideration is his dangerous driving conviction in 2017.  I was informed that it was a more of a case of road rage.  But still, it is a traffic-related offence so the defendant cannot really say that he has a clear record.  Nonetheless, I consider the present case not the worst of its kind and that the case normally should be dealt with in the Magistrates’ Court.

14.He has been leading a law-abiding life after his conviction in December 2017.  In my view immediate custodial sentence is not be warranted.  I think the sentence should be suspended as a reminder that he should be careful in the future should he be allowed the privilege of driving again. 

15.His sentence is 2 months’ imprisonment suspended for 2 years.  Within the 2 years, if the defendant commits further offences, whatever it is, these 2 months would have to be activated in additional to whatever sentence that may be meted out.

16.I would also disqualify him for a period of 9 months as a reminder that as a road user he should be really careful when he is driving.