HKSAR v YEUNG CHEE HON

DCCC 319/2021

[2021] HKDC 954

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 319 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of dangerous driving causing grievous bodily harm.

Summary of facts

2.  At around 12:21 pm on 25 September 2020, the defendant drove into Kwun Tong Road junction when the traffic light was red against him.

3.  There are 4 lanes in Kwun Tong Road.  The opposite bound is Lei Yu Mun Road which consists of 5 lanes.  The first left lane turns across Kwan Tong Road onto Tsui Ping Road.

4.  PW1’s Vehicle was the first one stopped in front of the traffic light. PW1’s car camera showed that when the traffic light turned green, PW1 drove into the junction.  Vehicles on his right hand side, that were the third and the fourth lane of Kwun Tong Road, also moved or started to move into the junction.

5.  At the same time, defendant’s vehicle entered into the junction by making a right turn from Lei Yu Mun Road into Tsui Ping Road.  The front part of PW1’s vehicle hit the left side of defendant’s vehicle which then skidded forward to Tsui Ping Road and rammed into it’s metal railings, it came to a stop onto the pavement of Tsui Ping Road, knocked down PW2 who then became unconscious.

6.  At the material time, PW2 and her granddaughter were waiting at the pedestrian crossing to cross the road of Tsui Ping Road.

7.  As a result of the accident, 3 meters of the metal railings were deformed.  Defendant’s vehicle was severely damaged. 

8.  PW2 was admitted into hospital and discharged on 9 November 2020 while her granddaughter was discharged on the same day.

9.  Medical finding of PW2.  She is now 76 years old.  She sustained 8 to 10 cm laceration and hematoma over her right scalp, bruises in her limbs.  X ray showed both of her lower legs had bilateral fibular head fracture. 

10.  As of 30 May 2021, the bones in both of her legs have not yet recovered and her right leg was still swollen.  Regular physiotherapy and medical treatments are still required. 

11.  She needs to travel on wheelchair, memory had worsened, daily lives need to be taken care of by others.  She also requires the assistance of others to take her to the bathroom and in travelling.

12.  Her granddaughter sustained an abrasion over her occiput and laceration of her right elbow.

13.  Transport Department confirmed that when Kwun Tong Road traffic lights turned green, traffic light against the Defendant had already turned amber for three seconds and then red for four seconds.

14.  At the material time, weather was fine and the road was dried, traffic was normal.

Mitigation

15.  The defendant is now 65, married with 2 adult children.  His family and friends wrote mitigating letters on his behalf to plead for leniency.

16.  From all these letters, I came to know that the defendant is a responsible family man and worker.  He is also a loving father and a caring husband.  He devotes himself to support his family in difficult times.

17.  The current incident has caused the defendant great anxiety and stress, he could not carry on his work, his employer allowed him to take no pay leave.

18.  The defendant said that it was due to his momentary error of judgement on his that put him in the lower end of to scale of dangerous driving.  At the time of the incident, the defendant believed and that the traffic light was green, therefore he made the right turn.

19.  The defendant had obtained a driving license since 1977 and his driving record was unblemished, he also has a clear record.

Sentence

20.  Dangerous driving causing grievous bodily harm is a serious offence for which the maximum sentence is seven years’ imprisonment.  In Secretary for Justice v Chu Wing Ying Christine [2020] 1 HKLRD 771, Court of Appeal summarised the sentencing principles and set out 13 aggravating factors.

21.  As to the sentencing principle, the first dominant factor to be considered is the defendants culpability which will involve 2 related assessments:-

(a)  The objective dangerousness of the defendants driving manner.

(b)  The moral capability of the defendant.

22.  Secondly, closely allied it to culpability is the harm and impact caused to the victim.  This will involve an assessment of the nature and degree of the really serious injury to the victim.

23.  The defence accepted that as a result of the defendant’s driving, the victim suffered serious injury.  What the defendant is saying that the defendant’s dangerous manner at the material time is at the lower end of the scale.  It was a “momentary error of judgement on the defendant”, as the defendant believed that it was a traffic green light for him to turn right.  He told the police at the scene the same thing.  However, now in hindsight the defendant accepted that it was a red traffic light.

24.  This Court has to determine whether it was a green light at the material time.

25.  When the defendant decided to turn right into Tsui Ping Road, he had to decide which lane he had to take in Lei Yu Mu Road as there were 5 lanes.  Only one lane can turn into Tsui Ping Road.  From the pictures provided by the prosecution, I can see that lane was right below the fly over.  There were also double white line on the left of that lane which means the defendant could not change lane to drive straight forward.

26.  Right in front of the defendants lane, it was the pillar of the fly over.  That means he could not drive forward in his own lane, his could only turn right.  If he did, he would end up hitting the pillar.

27.  There was traffic light to govern its right turn.  It was very clear that when the filter green light was on, that filter green light was pointing to the right, not forward.  Right above the filter green light were the amber and red light.  The other green light next to the filter right turn green light was to govern the other 4 lanes which lead to Mongkok direction.  Those lanes cannot turn into Tsui Ping Road.

28.  Part of the defendant’s job was to do site visit to see the progress of the maintenance work.  On that day, he was on his way to Shun Lee Disciplined Services Quarters in Kwan Tong for a site visit.

29.  The defence did not say that the defendant needed to drive there on a daily basis, but it was certainly nothing new to him to drive along this part of the road from Lei Yu Mun Road to Tsui Ping Road.

30.  As we have all seen the video from PW1’s car camera, there was another car, a white one, before the defendant turned right.  But that white car had already crossed the 4 lanes of Kwan Tong Road and completely entered into Tsui Ping Road before the defendant started to turn right from Lei Yu Mun Road. It was not the defence case that the defendant followed suit when the white car turned right.

31.  That white car took 4 seconds to complete the crossing of Kwan Tong Road.

32.  When the defendant started to turn right from Lei Yu Mun Road, the junction was clear from all traffic.  Kwan Tong Road traffic light had already turned green, in another words, the traffic light for the defendant was red, three seconds of amber light had passed.

33.  Before the defendant turned right into the junction, he also put on his right turn indicator.

34.  It was a big junction, the defendant was fully aware that there was traffic lights to govern the traffic in that part of the road.

35.  The defence said that he did look at the traffic light, he claimed it was a green light.  However there was only one green light, the arrow of that green light was pointing forward.  That green light was for the other 4 lanes.  His lane was red light, not a filter green right arrow light.

36.  The Hong Kong traffic light colours are very distinct and sharp, there is no question of misunderstanding of mixing up the colours of the traffic lights.

37.  To this end, I ruled that it was a deliberate and conscious attempt of the defendant to jump red light and drove across the junction.  Any competent and reasonable driver would view this driving manner as objectively dangerous.

38.  It is immediately foreseeable when the defendant drove through a red light, there was a high risk that accident might happen.  The defendant knew and any competent and reasonable driver would know that he put other drivers on the Kwan Tong Road at risk and he also put the pedestrian in danger.  Nonetheless, he decided to take his chance and to tempt fate.  In the present case, when accident happened, vehicles were damaged and pedestrians were injured.

39.  The innocent pedestrians PW2 and her granddaughter suffered the consequences of the defendants dangerous driving act.  PW2’s quality of life changed from that moment when his vehicle knock her unconscious.

40.  From a healthy person who was able to walk, to take care of her granddaughter to become a person who is now relying on wheelchair to move about.

41.  She used to look after her granddaughter before the accident, now she needs her daughter or someone to look after her daily lives including going to the bathroom.

42.  These significant changes must have a strong impact on her own life and her family members as a whole.

43.  Because of this accident, she was in the hospital for six and a half weeks.  It is not difficult to imagine that she must be depressed.

44.  As of the 30^th of May 2021, the bones of her lower limbs still have not yet recovered.  Her right leg is still swollen.  She still needs to attend physiotherapy and medical treatments regularly.  Her injury was in the serious category.

45.  Mr Lee on behalf of the defendant urged this court to pass a non-custodial sentence on the defendant.  He referred to the case of Ng Sheung Yee DCCC 328/2020 which was decided in May this year, the defendant was 76, also had a clear record.  The learned judge accepted that the defendant was not deliberately drive through the red light, it was due to inattention and failed to realise the traffic lights had changed to red. There was no aggravating factor.  The victim did not suffer serious injury, he had made full recovery.  The defendant had contributed significantly to the medical field.  Therefore, a suspended sentence was imposed.

46.  As often said, each case is to be determined on its own facts and circumstances, the case of Ng Sheung Yee was very different from the present one.

47.  The accident took place at a pedestrian crossing with 2 lanes carriageway. While the defendant in the present case drove through a big junction against a red light from the opposite carriageway.

48.  There were 2 victims in the present case.  PW2’s injuries as a result of the accident still had not recovered. 

49.  To this end.  I disagree with the defence that suspended sentence was appropriate in the present case.

50.  When I passed sentence on the defendant, I bear in mind that the defendant has an unblemished driving record, absence of previous conviction, a timely plea, no evidence of speeding.  It is always not easy to pass a custodial sentence on someone like him especially he is now turning 66, but the court has a duty to the public that a clear message needs to send to the general public that driving through a big junction against a red light is extremely dangerous. The only sentence I shall pass on the defendant is one of 24 months, it comes down to 16 months after 1/3 discount.

51.  I further order the defendant to be disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.  He was further order to attend and complete a mandatory driving improvement course within three months prior to the end of the disqualification period.