HKSAR v. Mok Ka Fai, Teddy

DCCC 450/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 450 OF 2014

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Reasons for Sentence

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Charge and facts

1.The defendant pleads guilty to dangerous driving causing grievous bodily harm to a female victim.

2.The traffic accident took place at a pedestrian crossing controlled by light signals (with stripes on the ground) outside No. 285 Prince Edward Road West, Kowloon.  There were 4 lanes (all in the same direction) leading to the said pedestrian crossing with a pedestrian safety island at its offside.  The relevant speed limit was 50 km/hour. 

3.At around 8 p.m. on 25 October 2013, the weather was fine, the road surface dry, and the traffic condition normal.  Mr. Lau Fat Kay Kenny (“PW2”) was a passenger on a stationary single deck-bus on the first lane from the nearside pavement of the pedestrian crossing.  There was a stationary jeep on the fourth lane before the pedestrian crossing.  Both the bus and the jeep were the first vehicles in their respective lanes  before the pedestrian crossing.  At that time, the vehicular traffic light was red.  PW2 saw Madam CHIU Hing-yin, Angela (“PW1”), aged 39, walk onto the pedestrian crossing from the safety island when the pedestrian traffic light was flashing green.  Shortly after PW1 walked onto the pedestrian crossing, she was hit by the motor cycle bearing registration mark “JC 116” (“the Motor Cycle”) driven by the Defendant travelling on the third lane from the nearside pavement. 

4.After PW1 was hit by the Motor Cycle, she became airborne and landed on a spot about 4.2 metres from the pedestrian crossing.  The Motor Cycle stopped at a further 28 metres away from the landing spot of PW1.  No skid mark was found.  The Defendant was arrested and cautioned. 

5.PW1 was admitted into Queen Elizabeth Hospital.  She suffered fractured right zygoma, traumatic subarachnoid hemorrhage, confused speech, epitaxis, and 2-cm laceration on her right eyebrow.  She was granted 18 days of sick leave. 

6.The Ophthalmological Unit at Queen Elizabeth Hospital assessed PW1 and found as follows:

(1) Right periorbital bruising and swelling;

(2) Right-sided facial wound, which was sutured;

(3) Decreased vision and colour vision in the right eye; and

(4) Right relative afferent papillary defect, which was consistent with a right traumatic optic neuropathy.

7.On 20 May 2014, the Hong Kong Eye Hospital performed an eye assessment of PW1. PW1 was found to have mild constriction of the right eye visual field.  The permanent visual disability of the right eye was estimated to be 11% based on the visual acuity and visual field findings. 

8.Madam LAI Suk-kwan (“PW8”), an engineer of the Transport Department, confirmed that the relevant vehicular traffic light must have been red when the relevant pedestrian traffic light was flashing green.  She further confirmed that the relevant traffic lights were working properly at the time. 

9.CCTV footage at No. 285 Prince Edward Road West showed the pedestrian traffic light displaying a flashing green as PW1 stepped onto the relevant pedestrian crossing.  The footage also showed the Motor Cycle hitting PW1 at a high speed. 

10.Upon examination of the Motor Cycle, no mechanical defect was found. 

Mitigation

11.The Defendant is 48 years old.  He lives with his wife, whom he married in 2011. They have no children. In 2010, he obtained a bachelor’s degree for sport science from a university in Beijing.     

12.He has a clear criminal record. With his 29 years’ driving experience, he had 4 records for speeding in 2007, 2008, 2012, and 2013 respectively (based on offence dates, same as hereinbelow), 1 for failing to comply with traffic sign/road marking in 2011, and 1 for failing to comply with traffic signs in 2012.  His inclination to speeding could not have contributed to the present accident.  His driving records do not aggravate his sentence.From 1985 to 1990, he was a fireman.  From 1990 onwards, he began to coach swimming and operate swimming classes. With the administrative support of his wife and a friend, his business now covers 20 housing estates with 15 part-time or seasonal coaches under him, the chief instructor.  His present income is about $25,000 per month.  His wife earns $8,000 per month. The present conviction will put his business to a practical end.   

13.For over 20 years, he has also served as an auxiliary police constable.  His present rank is senior police constable.  It is inevitable that the present conviction will lead to the termination of this career. 

14.His counsel, Mr. Surman, adduces a photo (Exh. D1) of the Motor Cycle.  It is a 600 cc commuter-type motor cycle. There are 3 photos (Exhs. D2 – D4) taken by his instructing solicitors showing the pedestrian crossing at about the same time but on a different date from the traffic accident. They show that situated shortly after the relevant vehicular traffic light was another vehicular traffic light. These different vehicular traffic lights sometimes operate in tandem, as shown in Exhs. D3 and D4.  However, sometimes they do not, as shown in Exh. D2 with the first set in green whilst the next set was in red and amber. At the time of the traffic accident, the Defendant had mistaken the next set in the green as the governing vehicular traffic light. Therefore he drove through the relevant pedestrian crossing when the relevant vehicular traffic light was red. This was not a regular route for him. He had probably passed the relevant spot only 2 to 3 times over the years. 

15.He is said to be deeply remorseful for this error of judgment and the injuries caused to PW1. 

16.He has a history of voluntary community services to the Junior Police Call and the Scout Association of Hong Kong. He swam with the blind in a programme and donated blood 13 times to the Hong Kong Red Cross. 

Sentencing considerations

17.Mr. Surman puts forward 2 precedents for my consideration.  The first one is HKSAR v LUI Chung Tak (呂仲德) CACC 221/2012.  The defendant drove through the vehicular traffic light when it had become red after having been amber for three seconds. At that time, a double-decker bus was stationary on the first lane.  His light goods vehicle struck an 83-year-old female who was crossing the third lane of the road. She suffered lacerations, bruises and swelling with a subarachnoid hemorrhage over her left frontal lobe. She was in the hospital for 2 days. As a result of her injuries, she is no longer able to lead an independent life and her family has to look after her. Her memory is affected and she has to walk with a stick. The Court of Appeal regarded 20 months as the appropriate starting point.   

18.In 香港特別行政區訴富欣 DCCC 258/2014, the defendant admitted to have been very tired, so he dozed off for 2 to 3 seconds when he was driving. Driving through the vehicular traffic light in red, his car struck 2 boys crossing the road. They suffered some lacerations and fractures of bones. There were no permanent injuries. Upon his plea of guilty, he was sentenced to 10 months’ imprisonment from a starting point of 15 months.

Sentencing the Defendant

19.Pedestrians are entitled to rest assured of safe crossing when the pedestrian traffic light was green or flashing green. It may be that the Defendant had mistaken the next vehicular traffic light in green as the one governing the relevant pedestrian crossing. However, apart from the vehicular traffic light, the surrounding circumstances were matters to which a driver must pay close attention. There must have been certain traffic condition leading to the bus and the jeep, each as the first vehicle in their respective lanes, to stop and remain stationary on each side of the pedestrian crossing. Besides, pedestrians may emerge from round the front of the bus or the jeep to cross the road with little time for his notice and reaction. He shall give way to pedestrians even if they may disobey the pedestrian traffic light in red. 

20.It was a serious error of judgment exercised within a few seconds.  The victim was left with an 11% permanent visual disability in her right eye. I take a starting point of 18 months. His plea of guilty warrants a one-third discount. I further reduce his sentence by 2 months for his voluntary community services. There are no other effective mitigating factors. The sentence is 10 months. 

21.He is disqualified from driving for 6 years in respect of all classes of vehicles. He has to attend and complete the driving improvement course before applying for a driving licence. I order a re-test because after 6 years’ disqualification, his driving skill in respect of all classes of vehicles will get rusty. His competence must be re-assessed before he gets the driving licence back.