HKSAR v. Yue Yau Fuk

DCCC 553/2022

[2023] HKDC 437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 553 OF 2022

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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

The Scene

2.The accident occurred at a signal-controlled pedestrian crossing on Castle Peak Road - Yuen Long (westbound lane)  near lamppost CD1032, Yuen Long, New Territories (“the Crossing”).  The road is a two-lane carriageway.  The speed limit is 50 km/h.

3.At the time of accident, the weather was fine with good visibility.  The road surface was dry and in good repair. Traffic volume was moderate.

The Accident

4.At around 07:33 hours on 25 January 2022, D was driving a public light bus along the second left lane of Castle Peak Road - Yuen Long (westbound).

5.Upon approaching the Crossing, the Bus went through the “RED” light signal without slowing down or swerving when PW1 walked out to the Crossing from left to right, resulting in the Bus knocking down PW1’s right body.

6.D only applied the brake when the distance between the Bus and PW1 was 2 to 3 meters.  D was all along talking on phone with a hands-free device before the collision occurred.

7.PW1 was conveyed to hospital for medical treatment in a conscious state and was admitted to the ICU.  The medical report revealed the injuries suffered by PW1 and information regarding her medical treatment:-

(a)  Abrasion over left forehead and bilateral hand;

(b)  Fracture of bilateral superior pubic ramus;

(c)  Pelvic fracture involving the vertical fracture of the right sacrum, right pubic bone and anterior aspect of acetabulum, right inferior pubic ramus and left superior pubic ramus.

(d)  Fracture posterior right 2^nd to 12^th ribs with small amount of right pneumothorax, right upper lobe and lobe lung contusion and fracture distal part of the right clavicle.

8.PW1 was hospitalized for 16 days.  She was granted 80 days of sick leave.  At a follow-up appointment on 3.3.2022, PW1 complained no pain over the pelvic region with resolved numbness.  She was able to tolerate walking independently.

The Investigation

9.The front car camcorder of the Bus captured the following, inter alia:-

(a)  At 07:33:28 am, the Bus was being driven along the 2^nd left lane of Castle Peak Road – Yuen Long (westbound);

(b)  At 07:33:30 am, PW1 was seen running from Ping Lok path towards the pedestrian crossing from the left;

(c)  At 07:33:32 am, PW1 was seen crossing the pedestrian crossing from the left to right in front of the Bus to the 3^rd strip of the Crossing and the Bus failed to stop in time and the Bus’s nearside front directly knocked down PW1’s right body. The Bus braked for about 5 meters from the point of collision; and

(d)  At 07:33:33, PW1 bounced forward for about 5 meters.

10.The Motor Vehicle Examination confirmed that no mechanical defects were found on Bus except from damaged nearside front windscreen, body panel and headlamp lens.

Criminal record

11.The D has 9 court appearances resulting 11 criminal convictions between 1974 and 2003.  None of the records are related to the present offence.

Traffic criminal record

12.The D has 2 previous traffic records in 2020, namely:-

(a)  Careless driving;

(b)  Failing to comply with traffic signals.

Antecedent/mitigation

13.The D is now 68 years old, living with his wife and 5 children.

14.He obtained his driving license since 1984 and has been a mini bus driver for 40 years earning a monthly salary of $20,000 per month. With determination and support from his family, he has totally reinvented himself, he stays clean as a law-abiding citizen since 2003 and is a responsible man to his family.  He is no longer a mini bus driver since the accident, his chance of re-offending is low.

15.The D is extremely sorry for causing PW1 injuries and he apologized to her for what had happened in this accident.

16.The D ‘s daughter is currently in the stage of recovery from cancer treatment. As of today, the doctor is yet to take different tests to find out if there is any sign of spreading. The D has been very supportive to her and she shows her gratitude of his support in her letter to this Court.

17.Today, I can see there are many friends and relatives of the D to come to Court to support him.

Sentence

18.The maximum sentence is 7 years’ imprisonment and a fine at level 5.

19.In the judgement of HKSAR v Lee Yau Wing CACC 282/2012 that the sentencing principle in relation to dangerous driving causing death is also applicable to dangerous driving causing grievous bodily harm.

20.It has been emphasized in many cases that a vehicle can maim or kill. The consequences of dangerous driving can cause great anxiety and depression to the victims and their families concerned.  Driving a vehicle comes with great responsibility to the road user, including the pedestrians.

21.As said in the case of the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 610 that:-

“in assessing the overall seriousness of a crime, culpability is often the dominant factor.”

22.As said in the judgement of HKSAR v Chan Kwok Fai that:-

“dangerous driving by bus drivers had firmly to be deterred by sentencing policy.”

23.The defence referred me to the case of HKSAR v Lee Yau Wing [2013] 1 HKC that the appellant ran through red light and hit PW1 on a pedestrian crossing. The Court of Appeal upheld that a starting point of 15 months was appropriate.

24.In the case of Lee Yau Wing, it is not setting down sentencing guideline for this type of offence.

25.On the other hand, the defence is fully aware of HKSAR v Chu Wing Yin Christine which was decided in 2019 and reported in 1 HKLRD 771. In the judgement of Chu Wing Yin Christine, the Court also referred to the judgement of Lee Yau Wing.

26.As such, in considering the sentence of present case, I have reference to the case of HKSAR v Chu Wing Yin Christine [2020] 1 HKLRD 771, in paragraphs 78 to 83, it stated the 5 steps approach in sentencing.

27.Firstly, the dominant factor to be considered is the offender's culpability which will involve two related assessments: -

(1)  the objective dangerousness of the offender’s driving manner (see [48]-[50] of the judgment of Macrae V-P); and

(2)  the moral culpability of the offender (see [51] and [52] of the judgment of Macrae V-P).

28.The objective dangerous driving manner: -

(i)  In the present case, as we all have seen the video clips that the Bus did not slow down or stop except at the point of impact or collision with PW1. The traffic light had already turned red and there was pedestrian on the crossing.

(ii)  He had been driving for 30 years of this route. There is nothing new about the condition of the road to him. It is a 2 lanes straight line road. At the time of the accident, there was no car in front of him to block his view and he should have known there is a set of traffic light in that part of the road.

(iii)  According to S. 36A (10)  of the Ordinance, the D was driving dangerously within the meaning of S. (1)  that the way he drove fell far below what be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

29.The moral culpability of the D:-

(i)  The D was on the phone (hand free)  prior to the accident while he was driving goes to moral culpability. Clearly, it had distracted the attention of the D on the road condition as the light had already turned red and he should have slowed down or stopped in front of the pedestrian crossing. His mind was not focused on the road condition at the material time.

30.Secondly, PW1 suffered serious injuries as a result of the accident.  She was hospitalized for 16 days and was given 80 days’ sick leaves.  As of today, I have been informed by the Prosecution that she is fully recovered, she resumed duty as a teacher since April last year.

31.Thirdly, I have to consider the aggravating factors which are:-

(a)  The accident took place at a pedestrian crossing;

(b)  The outcome of the offence, ie, there was a serious injured pedestrian (paragraph 15 of Cooklsey’s judgement).

32.In the judgement of Chu Wing Yan Christine, the court said that:-

“Had there been evidence of the respondent deliberately jumping or running a red light, we would have adopted a starting point of 24 months’ imprisonment. Had she been found to be distracted by using her mobile telephone, causing her not to notice the condition of the pedestrian crossing and the people on it, we would have considered a starting point considerably greater than 24 months' imprisonment. As it is, there was no such evidence.”

33.With the consent of both parties, the car camera and CCTV have been shown in Court, I have the opportunity to view the clips several times, I noticed that the Bus stopped in front of the other set of traffic prior to the present incident.

34.There was no evidence to suggest that the D was in a hurry and deliberately jumping or running a red light. It is clear to me that it was a momentary lapse of attention as he was on the phone. The speed of the Bus was around 50KM/hour and it was within the speed limits.

35.As such, I prepare to take a starting point of 18 months.  Given the above aggravating factors, I enhance the starting point by 6 months.  It arrives at 24 months.  I reduce the sentence by 1/3 discount because of his timely plea.  His sentence is now come down to 16 months.

36.I also order the defendant to be disqualified from holding or obtaining a driving license for all classes of vehicles for a period of 2 years.

37.The defendant is also ordered to attend and complete a mandatory driving improvement course at his own expense within 3 months prior to the end of the disqualification period, failing which the defendant may be subject to a criminal offence.

38.Finally, I take a general approach to reduce one month from the 16 months so that he can return home earlier to look after his daughter.

39.He is ordered to serve a sentence of 15 months.