HKSAR v. Chan Kwong Chi

DCCC601/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 601 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap.374.

2.The accident occurred on 22 December 2011 at 2 pm in the afternoon.  The weather on that day was good and the roads were dry.

3.The accident occurred at a yellow-striped pedestrian crossing of a three-lane road at the junction of Tai Chung Kiu Road and On King Street in Shatin.  Traffic lights controlled the traffic and pedestrians.  The speed limit was 50 kilometres per hour.

4.The victim was a 31-year-old female who proceeded to cross the road when a green man was shown.  The traffic of the first and second lane had already stopped for the red light controlling vehicles.

5.The defendant’s medium goods vehicle was in the third lane and approaching the pedestrian crossing when the victim was already halfway across the road.

6.As she stepped into the path of the third lane, she was knocked down by the defendant’s vehicle.

7.Just prior to the actual accident, the defendant’s passenger saw the victim as she walked across the road.  He shouted at the defendant and the defendant braked, but not in enough time to stop before he hit the victim.

8.Skid marks can be seen clearly on the road and leading into the pedestrian crossing, as seen in the photograph albums submitted by the prosecution.

9.The medium goods vehicle came to a stop on the pedestrian crossing after it hit the victim.

10.From the photographs, I can see the front of the defendant’s vehicle was damaged and the windscreen cracked.

11.Later, it was determined that the lights controlling the traffic and the pedestrians were working properly and in sequence.

12.In short, the defendant failed to stop in time at the traffic lights.

13.The victim suffered serious injury.

14.The prosecution have submitted a medical report.

15.She was in hospital for approximately three months. She had occiput fracture, extensive skull base fracture, subarachnoid haemorrhage, and bifrontal and left temporal cerebral contusion.  She is still receiving follow-up treatment at a specialist clinic.

16.Luckily, upon her discharge, she was able to walk well.

17.The report suggests, however, she has lost her sense of smell and, in June this year, she failed a trial of duty at work because of poor memory and becoming easily fatigued.

18.From the report, I cannot ascertain if she has suffered any other permanent injuries.

19.Despite her injuries being very serious and having taken a considerable amount of time to heal, she does not seem to have any life-threatening problems now.

20.I have received from defence counsel a written submission in full and it assists the court in considering an appropriate sentence.

21.Helpfully, the prosecution have given me a list of previous similar offences dealt with in the District Court as well as in the Magistracies.

22.In mitigation, the defendant is clearly a responsible family man, a good husband and a good father.  He has two young daughters who rely on him.  He has set up his own business, which gives him an income and supports his family.

23.In addition, I have evidence that he does voluntary work and fundraising for, in particular, the Enlightenment Society Fund Foundation. 

24.I have seen letters of support written from those who run this foundation.  The author must know the defendant personally because he sets out what work the defendant does voluntarily, plus adds that he is a conscientious and hardworking husband and father.

25.I have seen a letter that the defendant has written himself to the court, expressing his remorse, and a letter of apology written to the victim.

26.I accept the defendant’s remorse is genuine.

27.As for the defendant’s past, he has one previous criminal conviction, but it is not similar and was certainly some time ago.

28.He does not have a bad traffic record.  There are too many speeding tickets but only one previous conviction for careless driving in 2006.

29.Road accidents are tragic and cause immense suffering to victims and their families.  Vehicles can become lethal weapons where there is poor driving, even if only momentarily.  Drivers owe a huge duty of care to pedestrians and other road users.

30.I have been referred to many authorities and I have had referred myself to, in particular, what the Court of Appeal said in the Secretary of Justice v Poon Wing Kay [2007] 1 HKLRD 660, and I quote:

“Since sometimes there might be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect. Standards required by the law for motorists are there to ensure that all who come into contact with motor vehicles (including other drivers, passengers in the defendant’s car, and pedestrians) are safe.”

31.It is the culpability of the defendant which is a relevant consideration in sentencing.

32.The impact on the victim is also relevant to sentencing, but it must always be remembered that the defendant - and I accept, in this case - did not intend to cause serious injury.

33.Having considered the facts of this case, I noted there is no evidence of aggressive driving nor evidence of excessive speeding. The duration of the dangerous driving was short.  It was a serious momentary lapse of judgment.  The defendant was not under any influence of drugs or alcohol, and as I have said, I accept the defendant is remorseful and did not intend to cause serious injury to the victim.

34.I have also taken into account what the Court of Appeal said in the Secretary of Justice v Lam Siu Tong [2009] 5 HKLRD 601, and I quote:

“It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: it is highly likely that people will be crossing the road there, whatever the time of day or night. Accordingly, if motorists approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur.

Thus, we are of the view that where the offence of dangerous driving causing death is established and this involves the running over of persons at pedestrian crossings, then, for the purposes of sentencing, it would be a serious aggravating feature that the accident has occurred in such a location. The degree of seriousness will, of course, depend on the precise circumstances.”

35.As I have said, there is no evidence here that the defendant intended to jump a red light, so it does not put the facts of this case in the most serious category.

36.However, the courts still take a serious view of accidents that occur on pedestrian crossings.

37.The fact is, he did not stop in time.  But for his passenger’s shout, he may not have stopped at all and the accident would have had more serious consequences.  At least here, he braked hard to try and avoid the victim.

38.The facts of this case and the injuries suffered at a pedestrian crossing will mean that a term of imprisonment is appropriate here, and although he, the defendant, is a good husband and father, the offence is serious and should not be treated lightly.

39.Therefore, prison is inevitable.

40.I am mindful that a term of imprisonment will have a traumatic effect on the defendant and his family, but the courts must stress that vehicles can be lethal and drivers must bear the consequences of lethal driving dangerously.

41.Defendant, please stand up.

42.I have considered mitigation and the facts of this case before me, and I do find that it is not the worst offence of its kind and, after considering all the factors I have referred to above, I have decided to take a starting point of 21 months’ imprisonment.

43.You have pleaded guilty and you are entitled to a discount of one-third of 7 months.

44.For this offence, you are sentenced to 14 months’ imprisonment.

45.You are disqualified, for a period of 2 years from today, from driving any class of vehicle.

46.According to the law, you have to apply for and complete, at your own expense, a driving improvement course.  This can only take place within the last three months of your disqualification period.