HKSAR v. Din Mohamed Ayub

DCCC 1015/2021

[2022] HKDC 1018

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1015 OF 2021

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REASONS FOR SENTENCE

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1.At about 6 am on 6 February 2019, the defendant drove along San Wan Road and passed outside Sheung Shui MTR Station where there was a pedestrian crossing controlled by traffic light. The speed limit there was 50 kilometres per hour.

2.At the time there were two pedestrians crossing San Wan Road and the traffic light signal was in their favour.  However, the defendant drove on without slowing down.  He knocked down the two pedestrians and only came to a halt after he drove through the pedestrian crossing.

3.The defendant insisted that at the time he was driving at about 30 kilometres per hour and that he was having some health issues, namely, pulmonary emphysema and he was looking for medication.  His attention was drawn somewhere else. Nonetheless, he insisted that he remembered the traffic light for the vehicles was green.

4.The two pedestrians were subsequently sent to the hospital.  The first one suffered tenderness over his left pelvic, laceration over left forehead and a bruise over his left periorbital region.  He stayed in the hospital for over a month before he could resume his work as a bus driver.  He still has to attend follow-up medical attentions.  As of August 2022, he still felt pain when he climbed stairs or turned around.

5.The other pedestrian was luckier.  He had fracture over right fibular head, minor superficial abrasion over left forearm and bilateral knees and tenderness over right fibular head.  He was discharged after six days in hospital and resumed work five months later.

6.For the above facts, the defendant pleaded guilty to, and has conviction of, two counts of “Causing Grievous Bodily Harm by Dangerous Driving”, contrary to section 36A of the Road Traffic Ordinance, Cap 374, the maximum sentence for which is 7 years.

7.The Court of Appeal has stated in the past that sentencing for this kind of offences is fact-based and the emphasis is on the culpability of the defendant.

8.It was a straight and wide road and there was a traffic light controlled pedestrian crossing near a MTR station.  Although it was about 6 in the morning, one could imagine it was already quite busy.  The two pedestrians had followed the traffic light and used the pedestrian crossing, yet the defendant ignored them and drove on into the red light.  It was by his behaviour that the two victims suffered grave injuries, one of them still suffering from the effect of his carelessness, the other had to stay put and stop working for over four months.

9.According to the defendant, the speed he was driving the vehicle was 30 kilometres per hour.  In the absence of evidence to the contrary, I have to accept that he did not exceed the legal limit when he was driving.

10.Nonetheless, the fact that cannot be ignored is that he was in charge of a very powerful and possibly lethal piece of machinery.  This is a privilege. Commensurate to such privilege, there is an obligation to be careful to avoid damages the machine was capable of causing.  Obviously, the defendant had failed that.

11.I turn to look at his previous convictions.  He has a number of previous criminal convictions at the age of 60.  None of them was related to his driving manner.  So for the purpose of this sentencing exercise, I would ignore them. According to the record of the Traffic Department, he had a number of driving related convictions, including careless driving, failing to comply traffic signs, exceeding legal limit, failing to stop after an accident.  Obviously, he had a very cavalier attitude in his driving and in the privilege bestowed by the law for his ability to command a vehicle.

12.While there is no aggravating factor such as driving under the influence of alcohol, excessive speed, I cannot ignore the fact that two victims had behaved in an exemplary manner by complying with the law had been injured.  One of them so far still has to still suffer from the defendant’s carelessness.

13.In passing sentence, I have to look at the harm done to the victim. There are a few cases cited by counsel for the defence.  Of course, the principle is that the sentencing exercise is governed by the culpability of the defendant.  As each case differs, they are not of much assistance to this court except for the principle which has already been stated and embodied in my reasons for verdict.  Looking at the facts as a whole, I would consider the worst factor against the defendant is the fact that he drove on an open road against a traffic controlled pedestrian crossing and thereby injured other, a total of two, law-abiding citizens.

14.In the circumstances, I would adopt a starting point of 15 months for each count.  The defendant had pleaded guilty and that each is reduced to 10 months.  Taking into account of the totality principle, I would order 5 months to run concurrent, making a total of 15 months.

15.By law I have to order the defendant to be disqualified from driving. On this point, his counsel did not make any submission relating to special circumstances.  I do not see any reasons to depart from the requirement by the law and order, for each count the defendant is to be disqualified for 24 months, to run concurrently.  Within 3 months after disqualification, the defendant has the duty to go to the Transportation Department to enrol and complete a drive improvement course.

16.I would also warn the defendant that it is his obligation to complete the course.  Neither this court nor the Traffic Department has the obligation to advise the defendant to attend.  If he fails to do so, he may be subject to another prosecution by the police.