A A
B B
DCCC 551/2013
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 551 OF 2013 D
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E HKSAR E
v
F F
CHU KWAI ON
G ____________ G
H Before : HH Judge Dufton H
Date : 21 August 2013
I Present: Mr Gary Leung, PP, of the Department of Justice, for HKSAR I
Mr Albert Cheung instructed by Messrs Kitty So & Tong
J for the defendant J
Offence: Causing grievous bodily harm by dangerous driving
K (危險駕駛引致他人身體受嚴重傷害) K
L L
REASONS FOR SENTENCE
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1. The defendant pleads guilty to one charge of causing grievous bodily
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harm by dangerous driving, contrary to section 36A of the Road Traffic
O Ordinance, Chapter 374. O
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2. In summary at about 0730 hours on the 25 November last year the
Q defendant was driving a public light bus when he knocked down Mr Ng Q
Cheung Shan who was crossing the pedestrian crossing at the junction of
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King’s Road and Tong Shui Road. At the time it was raining and the
S road surface was wet. S
T 3. A taxi driven by Mr Fong Sze Yuen was travelling in the same T
direction. As Mr Fong approached the junction the traffic light was
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amber and therefore Mr Fong slowed down and stopped. At this point
C whilst the pedestrian light was still red Mr Ng stepped on to the crossing. C
As he passed the taxi the pedestrian light turned to green. The defendant
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however jumped the red light and collided with Mr Ng knocking Mr Ng
E 10 meters from the point of collision. E
F 4. The police arrived shortly afterwards. The defendant having stopped F
his minibus after the collision was arrested. Under caution the defendant
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admitted, inter alia, that he jumped the red light because he was in a hurry;
H he did not notice anyone on the pedestrian crossing; about 40 meters from H
the junction the traffic lights were green therefore he did not pay further
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attention to the lights and started to tidy up the notepads above the dash
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board; he did not pay attention to the colour of the traffic light when
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passing the junction; and first noticed Mr Ng when the bus reached the K
middle of the pedestrian crossing.
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5. Mr Ng was rendered unconscious and was taken to hospital where
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he was resuscitated with emergency surgery. Mr Ng was then transferred
N to the Intensive Care Unit. Mr Ng suffered from a fracture to the eye, N
face and head resulting in Mr Ng being hospitalised for 23 days.
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P 6. In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a P
number of aggravating and mitigating factors, factors which are relevant
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to both dangerous driving and dangerous driving causing death. These
R factors were revised in R v Cooksley [2003] RTR 32. Whilst in Boswell R
the court said that the presence of one or more aggravating features will
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generally necessitate a custodial sentence, the court in Cooksley as
T applied in the Secretary for Justice v Poon Wing Kay & another [2007] 1 T
HKLRD 660 emphasised that a sentencing court must however look at
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the overall circumstances and the overall culpability of the offender. I am
C satisfied this approach is equally appropriate to the offence of causing C
grievous bodily harm by dangerous driving (see HKSAR v Lee Yau Wing
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CACC 282/2012).
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7. This principle was repeated in Secretary for Justice v Lau Sin Ting
F CAAR 3/2010 where the Court of Appeal said that each case is different F
and may vary greatly in its circumstances and too formulaic an approach
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to sentence may result in injustice (see paragraph 36 of the judgment).
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Aggravating features
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8. The aggravating features in this case are the offence took place at a
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pedestrian crossing; the defendant’s attention was avoidably distracted by
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tidying up the notebook on the dashboard; the defendant was the driver of
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a public transport vehicle although I note at the time there was only one L
passenger who left immediately after the incident and therefore appears
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not to have been injured (see HKSAR v Hui Wang Chin CACC 158/2012);
N and Mr Ng was seriously injured for which he spent 23 days in hospital. N
In considering the degree of injuries sustained I note that said in HKSAR
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v Lui Chung Tak CACC 221/2012 that it is not helpful to compare the
P various injuries which amounted to grievous bodily harm save where a P
dramatic level of injury may have an impact on sentence.
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9. As Mr Cheung has aptly described in mitigation Mr Ng has
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remarkably made a full recovery from his injuries save he has to attend a
S follow up appointment next year for injuries to his eyes. Mr Ng says his S
eyesight is quite normal and everything was said to be fine when
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attending hospital earlier this month. Mr Ng has been able to resume
C work but expresses a fear when seeing vehicles, in particular minibuses. C
D 10. In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, a D
case of dangerous driving causing death, the Court of Appeal held that
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the disregarding of traffic lights when approaching a pedestrian crossing
F would be regarded as a serious aggravating feature and that a conscious F
disregard for traffic lights would likely put the case into the most serious
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category. This was referred to in Lee Yau Wing the first reported case on
H sentence for causing grievous bodily harm by dangerous driving. H
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11. In Lee Yau Wing the defendant slowed down at a pedestrian crossing
J but did not stop when the traffic light was red. The defendant continued J
travelling forward when he could not see if any pedestrian was using the
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crossing and hit a 75 year old lady but without knocking her down. This
L caused a fracture of the right knee of the old lady. The Court of Appeal L
in upholding a starting point of 15 months imprisonment said that by
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proceeding forward knowing vision was obstructed revealed a wilful
N refusal to stop and deliberate risk-taking in allowing the vehicle to edge N
forward onto the crossing. The court said this exhibited a conscious
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disregard for the traffic lights.
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12. The degree of seriousness depends on the precise circumstances of
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the driving as can be seen from the case of HKSAR v Lui Chung Tak
R where a higher sentence was held to be appropriate notwithstanding the R
court held the driving was not a conscious disregard for traffic lights.
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The driver of a light goods vehicle had passed through the crossing when
T the traffic light had turned red for one second, having been on amber for T
three seconds. As he did so he knocked down an 83 year old female
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pedestrian who had crossed before the green man for pedestrians was
C illuminated. The court reduced the sentence from 2 years to one of 20 C
months imprisonment.
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13. The present case is in my view more serious than both Lee Yau Wing
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and Lui Chung Tak. I am satisfied the defendant consciously disregarded
F the traffic lights by paying no further attention to the lights as he tidied up F
the notebook on the dashboard. Unlike the defendant in Lee Yau Wing,
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who slowed down, the defendant drove at a speed, albeit within the speed
H limit, which knocked Mr Ng for 10 meters resulting in his injuries. H
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14. Further on his own admission the defendant was in a hurry so he
J jumped the red traffic light. The defendant says that about 40 meters J
from the junction he no longer paid attention to the traffic lights. This
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would be about six vehicle lengths from the traffic lights. The video film
L taken by the taxi, which had stopped at the traffic lights, shows that the L
traffic light, which was clearly visible to the defendant, change to amber
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at 01:04:24 and about six seconds later at 01:04:30 shows the bus
N knocking down Mr Ng. N
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15. Unfortunately the video does not show when the traffic light turns to
P red or when the green pedestrian light comes on and I have not been told P
the sequence of the traffic lights. However a driver must stop when the
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amber light shows unless he is so close to the crossing that to do so may
R cause an accident. That is not the case here the defendant having more R
than sufficient time to stop once the light turned to amber. The fact that it
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was raining at the time meant the defendant should have proceeded with
T even greater care. The defendant clearly had no intention of slowing T
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down and by proceeding through the traffic lights took an unnecessary
C and wholly avoidable risk. C
D 16. Although like the pedestrian in Lui Chung Tak Mr Ng initially D
stepped onto the crossing before the green man was illuminated the
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pedestrian light was green by the time Mr Ng reached the front of the
F stationary taxi. Whilst the video film taken by the taxi actually shows F
that Mr Ng ran onto the crossing, no doubt due to the fact it was raining, I
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am nevertheless satisfied that Mr Ng is in no way at fault and that his
H initial stepping onto the crossing when the green man was not illuminated H
does not in the circumstances reduce the culpability of the defendant.
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The video clearly shows Mr Ng waited until the taxi stopped before he
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ran onto the crossing. Pedestrians seeing one vehicle stop before the
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traffic lights can expect other vehicles to do the same. K
L Mitigating factors L
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17. In passing sentence I take into account everything said on behalf of
N the defendant by Mr Cheung together with the content of the background N
report. I take into account that the defendant is genuinely remorseful for
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his actions and that since the accident he has suffered from anxiety and
P insomnia; experienced flashbacks of the accident and lost a lot of weight. P
As a consequence the defendant says he will not drive again and has since
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the accident taken up employment as a delivery worker. Letters of
R support are submitted by both his new and former employer. R
S 18. I also take into account the defendant’s good traffic record having no S
traffic convictions and only three fixed penalties since obtaining his
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driving licence in 1983, although I note one of the fixed penalties is for
C failing to comply with a traffic signal and another one for speeding. C
D 19. I take into account the defendant has no previous convictions and D
has led a responsible life looking after his family. The background report
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and letters from his employers show how well the defendant is thought of.
F Sadly the majority of offenders who come before the court on charges of F
dangerous driving causing death and causing grievous bodily harm by
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dangerous driving are law abiding citizens of good character.
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20. Having considered all the circumstances of the driving I am satisfied
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that the proper starting point after trial is one of 2 years and 6 months
J imprisonment. Giving the defendant full credit for his plea of guilty he is J
convicted and sentenced to 1 year and 8 months imprisonment.
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Disqualification L
M 21. There is mandatory disqualification of not less than 2 years for M
causing grievous bodily harm by dangerous driving unless the court for
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special reasons decides not to make such an order. I find there are no
O special reasons not to order the defendant to be disqualified. I am O
satisfied taking into account the circumstances of the driving that a period
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of 4 years disqualification is appropriate. The defendant is disqualified
Q from holding or obtaining a driving licence for all classes of vehicles for Q
a period of 4 years.
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S 22. By virtue of section 72A (1A) of the Road Traffic Ordinance a court S
shall order a person convicted of causing grievous bodily harm by
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dangerous driving to attend and complete a driving improvement course
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unless the court for special reasons decides not to make such an order.
C Again there are no special reasons not to make the order. The defendant C
is ordered to attend and complete a driving improvement course at his
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own cost within the last three months of the disqualification period.
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23. The defendant is warned that it is an offence not to attend and
F complete the driving improvement course and that he remains F
disqualified until he attends and completes the driving improvement
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course notwithstanding the disqualification period may already have
H ended. H
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J (D. J. DUFTON) J
District Judge
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