DCCC600/2023

DCCC600/2023

A A B B DCCC 600/2023 C [2024] HKDC 764 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 600 OF 2023 F F G -------------------------------- G HKSAR H H v I NG KA LEUNG I -------------------------------- J J K Before: Her Honour Judge A N Tse Ching in Court K Date: 14 May 2024 L L Present: Ms Flora Cheng Suk Yee, counsel-on-fiat, for HKSAR M The Defendant, acting in person M Offences: Causing grievous bodily harm by dangerous driving (危險 N N 駕駛引致他人身體受嚴重傷害) O O P -------------------------------------------- P REASONS FOR SENTENCE Q Q -------------------------------------------- R R S S T T U U V V  -2- A A B B 1. The defendant pleaded guilty to one count of “Causing C grievous bodily harm by dangerous driving”, contrary to section 36A of C the Road Traffic Ordinance, Cap 374. D D E Summary of Facts E F F 2. The Summary of Facts admitted by the defendant are as G follows: G H H (1) the accident location is a six-lane carriageway on the I eastbound of Mong Kok Road. The first four lanes run I straight, while the remaining two right-turn lanes lead J J to Shanghai Street. At the time of the accident, the K weather was fine, the road was dry and there was K sufficient street light. The speed limit of 50 km/hr was L L imposed. There are pedestrian crossings regulated by M traffic lights at the junction of Shanghai Street and M Mong Kok Road, Mong Kok (the Junction). N N O (2) At around 6:34 pm on 8 January 2023, D was driving a O private car bearing registration number CD256 (the P P th Vehicle) and made a right turn from the 5 left lane of Q Q Argyle Street (westbound) into Reclamation Street. R The Vehicle overtook a private car bearing registration R rd number TH338 and then continued driving onto the 3 S S lane of Mong Kok Road (Eastbound). When the T Vehicle was crossing the junction of Mong Kok Road T and Shanghai Street, it hit a pedestrian Mr Chang Chi U U V V  -3- A A B B Man Semile (Chang), who was jaywalking. As a C result, Chang fell backwards and hit the ground with C the back of his head. The case was reported to the D D Police. E E (3) At around 6:44 pm on the same day, PC14561 (PW1) F F arrived at the scene. Chang was sent to Queen G Elizabeth Hospital by ambulance. G H H Arrest and Caution I I (4) At around 7:30 pm on the same day, the defendant was J J arrested for “Dangerous Driving Causing Grievous K Bodily Harm”. A cautioned video-recorded interview K was conducted with the defendant on 17 February 2023 L L in which he stated, inter alia: M M (i) the defendant was the driver of the Vehicle on 8 N N January 2023 and he intended to go to Mong Kok O from Shek Kip Mei; O P P (ii) Prior to the accident, the defendant was driving Q Q on the 4th left lane of Reclamation Street and later R turned right to Mong Kok Road; R S S (iii) The defendant remembered seeing jaywalkers T crossing the road against the red pedestrian light T U U V V  -4- A A B B when he was driving along Mong Kok Road C towards Shanghai Street; and C D D (iv) When the Vehicle was approaching the E pedestrian crossing at the Junction, a jaywalking E male rushed out. The defendant applied his F F brakes to slow down the Vehicle and sounded the G horn, but the nearside front of the Vehicle G collided with the pedestrian. H H I Car Camera Footage I J J (5) The car camera of the Vehicle captured the following: K K Screen Time Content L L (2023-01-08) 18:58:11 - The Vehicle passed through the pedestrian M M crossing at Reclamation Street and made a right turn into Mong Kok Road. N N - There were jaywalkers and the Vehicle did not appear to have slowed down. O O 18:58:16 - The Vehicle was approaching the pedestrian P crossings at the Junction. P - Chang was well exposed at that time. Q Q 18:58:18 - The Vehicle collided with Chang. R R (6) The defendant was listening to music on the Vehicle at S S the material time. T T Forensic Scientist Report U U V V  -5- A A B B C (7) Dr Wong Fai George (PW3), the forensic scientist of C the Government Laboratory, has calculated the average D D speed of the Vehicle prior to the collision. It was found E that the Vehicle was travelling at a speed of 56 ±6 km/h E when he was travelling along Reclamation Street and F F that the speed decelerated to 46 ±5 km/h when he was G making a right turn onto Mong Kok Road up until the G moment before the collision. H H I I Medical Condition of Chang J J (8) Chang was taken to the Accident and Emergency K K Department (A&E) of Queen Elizabeth Hospital at L around 6:54 pm on 8 January 2023 after the accident. L He was diagnosed with traumatic brain injury and the M M computerised tomography of the whole body revealed N that grievous bodily injuries were sustained by Chang: N O O (i) Fractures involving the left parietal, sphenoid P bone on the left, squamous, tympanic and P mastoid parts of the left temporal bone, right Q Q lamina papyracea, and left frontoparietal scalp R hematoma; R S S (ii) Diffuse subarachnoid haemorrhage, 0.7 cm thick T acute subdural haemorrhage over the right T cerebral convexity, 0.3 cm subdural U U V V  -6- A A B B haemorrhage over the left Parieto-temporal lobe C convexity; C D D (iii) Contusion changes over the right frontal, left E parietal and bilateral temporal lobes, sulcal E effacement was seen in the bilateral cerebral F F hemispheres, in keeping with edema changes; G G (iv) Fractured nasal bone, hyperdense blood seen in H H the external auditory canal and middle ear cavity, I hyperdense blood in nasal cavity, ethmoidal I sinuses; and J J K (v) Fractured 5th - 6th ribs. K L L (9) Chang was later admitted under the care of the M Department of Neurosurgery on 8 January 2023 via M A&E. N N O The Offence O P P (10) At the material time, the defendant caused grievous Q Q bodily harm to Chang by driving the Vehicle on a road R dangerously: R S S (a) at 18:58:11 hours, the Vehicle passed through T the pedestrian crossing at Reclamation Street T U U V V  -7- A A B B when there were pedestrians on it and did not C slow down; C D D (b) when the Vehicle turned right into Mongkok E Road, Chang was already well exposed near the E 2nd and 3rd lane of Mongkok Road. The F F defendant did not slow down or stop when G approaching the pedestrian crossing when Chang G was a clear and obvious danger on the pedestrian H H crossing; I I (c) The defendant made no attempt to swerve, stop J J or manoeuvre the Vehicle to avoid the accident; K K (d) The defendant was driving too fast in the L L circumstances. M M Updated Medical Report N N O 3. Updated Medical Reports of Chang were obtained pursuant to O the court’s direction. According to the report from Queen Elizabeth P P Hospital dated 17 April 2024 and the report dated 26 January 2024 from Q Q Dr Law Wun Tong, Chang is now hemiplegic and has permanent brain R damage, with personality changes, language defects, marked overall R cognitive impairments and other neurological defects. He is no longer able S S to manage or administer his own affairs and requires constant supervision T and assistance in his personal self-care and daily activities. T U U V V  -8- A A B B The defendant’s Background C C 4. The defendant is 30 years old, single. He was educated to D D Form 5 level and worked as a warehouse worker. He resides with his E retired mother and was the breadwinner of the family. E F F 5. The defendant has 2 criminal convictions, both of which dated G back to 2009 and are not similar to the present offence. G H H 6. The defendant was arrested for this offence on 8 January I 2023. He obtained his driver’s licence in 2014. Between 2015 and 2024, I he accumulated 16 traffic convictions, 7 of which occurred after his arrest J J in the present case, including one conviction for careless driving, 2 K convictions for failing to comply with traffic signals, 2 convictions for K failing to comply with road markings, one conviction for using vehicle L L without insurance and one conviction for driving whilst disqualified. M M 7. The defendant was released on police bail after his arrest. He N N appeared before the Kowloon City Magistrates’ Court on 23 May 2023. O As part of his bail condition, the defendant was required to report to Kwun O Tong Police Station every Monday between 2100 hours and 0000 hours. P P However, he failed to comply with the reporting conditions on 10 July Q Q 2023, 14 August 2023, 24 October 2023, 13 November 2023, 21 November R 2023, 18 December 2023, 1 January 2024, 22 January 2024, 12 February R 2024, 26 February 2024, 11 March 2024 and 18 March 2024 (a total of 12 S S times). T T Sentencing Principles U U V V  -9- A A B B C 8. Section 36A of the Road Traffic Ordinance, Cap 374 provides C that: D D E “(1) A person who causes grievous bodily harm to another E person by driving a motor vehicle on a road dangerously commits an offence and is liable— F F (a) on conviction on indictment to a fine at level 5 and to imprisonment for 7 years… G G (2) If a court or magistrate convicts a person of an offence H under subsection (1), the court or magistrate must order that the H person be disqualified in accordance with subsection (3) or (4) unless the court or magistrate for special reasons orders that the I person be disqualified for a shorter period or that the person not I be disqualified. J J (3) Subject to subsection (4), the period for which the person is to be disqualified is— K K (a) for a first conviction, a period of not less than 2 L years… L (4) If the court or magistrate has ordered the person to attend M and complete a driving improvement course under section M 72A(1A), the period for which the person is to be disqualified is— N N (a) for a first conviction, a period of not less than 2 O years, or until the person has attended and O completed the course at his or her own cost, whichever is the later …” P P Q 9. Section 72A of the Road Traffic Ordinance provides: Q R R “(1) Where a court or magistrate convicts a person of an offence specified in Schedule 11, the court or magistrate may do S either or both of the following— S (a) impose any penalty that may be imposed for the T offence; T U U V V  - 10 - A A B (b) order the person to attend and complete a driving B improvement course. C C (1A) Subject to subsection (1B), where a court or magistrate convicts a person of an offence under section … 36A, 37… or D convicts an applicable person of an offence under section 41(1), D the court or magistrate shall order the person to attend and E complete a driving improvement course, unless the court or E magistrate for special reasons decides not to make such an order. F (1B) If a person, on being convicted of an offence in any F proceedings, is ordered under subsection (1)(b) or (1A) to attend and complete a driving improvement course, the person is not to G G be ordered under that subsection to attend and complete a driving improvement course in respect of any other offence of H which he is convicted in those proceedings… H (3) A person who is ordered to attend and complete a driving I improvement course under subsection (1) or (1A) must, at the I person’s own cost, attend and complete that course in J accordance with subsection (3A), (3B) or (3C) as may be J applicable to the person… K (3C) The person must attend and complete the driving K improvement course within 3 months beginning on the date the L person finishes serving the term of imprisonment or detention if L the person— M (a) has been ordered to serve a term of imprisonment M or detention, but is not the subject of a disqualification order; or N N (b) has been ordered to serve a term of imprisonment O or detention and is also the subject of a O disqualification order with a disqualification period that ends— P P (i) before the person finishes serving that Q term; or Q (ii) within a period of less than 3 months R beginning on the date the person finishes R serving that term… S S (9) A person who, without reasonable excuse, fails to comply with subsection (3) commits an offence and is liable on T conviction to a fine at level 2 and to imprisonment for 1 T month…” U U V V  - 11 - A A B B 10. Section 70(2) of the Road Traffic Ordinance provides that: C C “Where a person is convicted of an offence involving obligatory D or discretionary disqualification the court or magistrate may, D whether or not it makes any other order as to disqualification, and whether or not such person has previously passed the test of E competence to drive prescribed under this Ordinance, order him E to be disqualified until he has, after the date of the order, passed that test.” F F G 11. There are no tariffs or sentencing guidelines for the present G charge. In R v Cooksley & Others [2003] All ER 40, the Court of Appeal H H identified some aggravating and mitigating factors in this type of cases. I I 12. The principles set out in R v Cooksley were considered by the J J Court of Appeal in Secretary for Justice v Poon Wing Kay [2007] 1 K HKLRD 660. In that case, the defendants, public light bus drivers, were K convicted after trial of causing death by dangerous driving, contrary to L L s 36(1) of the Road Traffic Ordinance (Cap 374) and causing harm to M persons by racing vehicles, contrary to s 33 of the Offences Against the M Person Ordinance (Cap 212). The defendants were driving their respective N N buses on King’s Road, North Point in the early morning. D1’s vehicle had O eight or nine passengers and D2’s vehicle had 14 passengers. At some O stage, they began racing against one another, competing for passengers, P P including driving through sets of red lights. At a junction, D1’s bus went Q Q through another red light and collided first, with a taxi crossing the R junction, and then with D2’s bus, who was overtaking D1’s bus at the time. R D2’s bus overturned. Two passengers in D2’s bus died and 17 other people S S were injured. Both vehicles were travelling at high speed. The defendants T had records for traffic offences: D1 had 10 convictions since 1996; and D2 T U U V V  - 12 - A A B B had 27 convictions, including nine for failing to comply with traffic C signals, since November 2002. The Court of Appeal held: C D D “10. n sentencing the defendants, the judge adopted a starting point of 2½ years for the dangerous driving charges for both E defendants. He found, as we have, great assistance in the E English case of R v Cooksley & Others [2003] 3 All ER 40. There, the Court of Appeal laid down sentencing guidelines for F the offences of dangerous driving and careless driving causing F death, when under the influence of drinks or drugs. While G admittedly the sentencing guidelines for the offence of G dangerous driving causing death in that case cannot be used in Hong Kong, not least because the maximum sentence in the H United Kingdom for the offence was at the time of that case 10 H years (now 14 years) rather than 5, a number of general principles found in the judgment of Lord Woolf CJ can be stated I I as being equally applicable in Hong Kong. (we also add some observations of our own): J J (1) In most cases of dangerous driving it will be obvious to the offender that his driving was K K dangerous, and he therefore deserves to be punished accordingly: at p.45J (para.11). This is L important to bear in mind because, while it may L be true, in some instances not to treat violators of traffic laws as true criminals. Nevertheless, for M offences, such as dangerous driving causing M death, the offender may not necessarily be seen N in quite such a benevolent light. N (2) Where death results from dangerous driving, it is O obvious that grave distress will be caused to the O family of the deceased: at p.46A (para.11). The impact on people’s lives ought to be taken into P P account when sentencing. Q (3) It is important for courts to drive home the Q message that that may sometimes be extremely grave consequences flowing from acts of R R dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing S in many cases involving dangerous driving: at S p.46C-E (para.11). A motor vehicle, many may often forget, when not driven to requisite T standards, can kill or maim. The standards T required by the law for motorists found in the U road traffic legislation and elsewhere are there to U V V  - 13 - A A B ensure that all who can come into contact with B motor vehicles (whether fellow motorist, C passengers or pedestrians) are safe, and that their C lives are not endangered. D (4) While a list can be drawn up of aggravating and D mitigating factors, a sentencing court must E however look at the overall circumstances and E the overall culpability of the offender. In assessing the overall seriousness of a crime, F culpability is often the dominant factor: - at page F 47b (paragraph 14). It is not a case of counting the number of aggravating or mitigating factors G G and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that H exact an exercise and courts must be sufficiently H nimble to take into account the overall picture in order to arrive at an appropriate sentence. In I some cases, the fact that only some aggravating I factors exist, but not others (such as in the present J case), may still bring the case into a very serious J category. K (5) One major factor to be considered as an K aggravating factor justifying a heavy sentence is L where a person has driven with selfish disregard L for the safety of other road users or of his passengers (or, we would add, of pedestrians) or M with a degree of recklessness: - at page 46f-d M (paragraph 12). N N 11. In his Reasons for Sentence, the Judge referred to the headnote in Cooksley which sets out the sentencing guidelines O in England for various scenarios involving dangerous driving O causing death. Some 16 aggravating factors are enumerated together with some mitigating factors. He then listed out the P aggravating and mitigating factors in the present case to arrive P at a starting point of 2½ years for each Defendant…” Q Q 13. In our judgment, the sentences imposed by the Judge on R the Defendants were manifestly inadequate and wrong in R principle. We are of the view that for both Defendants, the maximum term of 5 years’ imprisonment should be imposed for S the dangerous driving charges and the maximum term of 2 years S be imposed for the racing charge… Our reasons for revising the T sentences are as follows: T U U V V  - 14 - A A B (1) The conduct of both Defendants as outlined B earlier showed an utter and selfish disregard, if C not contempt, for the safety and well-being of all C who came into contact with their driving: their own passengers, other passengers and other road D users. Driving through red lights as if the lights D did not exist and as if they were the only users of E the road, racing against one another in an attempt E to grab passengers, no attempts made to slow down at junctions (in fact quite the opposite) F were all indicative of this... F (2) The Defendants’ conduct was without doubt G G reckless and in the words of the Judge “prolonged, persistent and deliberate”. These H were not momentary lapses of judgment. The H evidence indicated that the 1 st Defendant went through about 10 sets of traffic lights and the 2 nd I Defendant, 6 sets (including those at the Healthy I Street junction) without stopping or slowing J down. J (3) The consequences of this driving, which both K Defendants must have known was dangerous, K were tragic. Two persons lost their lives, many L more were injured. One can only shudder when L thinking that the consequences could have been far worse. The pedestrian, Mr Tse (PW1), was M about to cross the westbound lane of King’s Road M to catch a tram and had he done so even though the pedestrian lights were in his favour, he would N N have sustained extremely serious injuries. O (4) The Defendants were no doubt in a rush but in O doing what they did, they deliberately took the risk not just of being prosecuted for breaching P traffic laws, but, far worse, of endangering P people’s lives. Q Q (5) The standard of driving of these Defendants was appalling and in our view totally unacceptable R and must rightly be condemned. The safety and R well-being of members of the public in Hong Kong are paramount and the public must be S S adequately protected from the type of driving the two Defendants displayed. It should not be T forgotten just how many of the witnesses testified T to the very real fear they felt at the time for their lives. In a letter from the 2 nd Defendant U U V V  - 15 - A A B addressed to the court yesterday, he denies B “absolutely” that he was risking any lives by C racing. We disagree: he and the 1 st Defendant C were doing exactly that. D (6) The traffic offence records of the Defendants are D also appalling. The 1 st Defendant has a record E since 1996 of having been convicted of 10 traffic E offences, one of which was committed after the present offence. Four were for careless driving. F He has been disqualified twice. The 2 nd F Defendant’s record is far worse. Since November 2002, there have been 27 convictions G G for traffic offences including 9 for failing to comply with traffic signals. Two of the H convictions for failing to comply with traffic H signals were committed after the present accident when he was driving a bus in Lantau. His record I is truly appalling. I J (7) Additionally, it must not be forgotten that the J Defendants were each driving vehicles for the carriage of members of the public. Such K professional drivers must be acutely aware of the K necessity to be safe and not to risk people’s lives L and safety. This provides yet another L aggravating feature in the present case. M (8) In our view, what the Defendants did come M within the worst category of the type of offences under consideration. In no other case cited to us N N have the facts been so bad. The utter disregard for the lives and safety of others may well have O attracted manslaughter charges where upon O conviction, sentences in excess of 5 years might well have been imposed. Be that as it may, P although we suppose worse facts than the present P case can conceivably exist, this does not mean Q that maximum sentences should not be imposed. Q It is to the category or type of seriousness or culpability that the court looks when sentencing. R R (9) In terms of the culpability of both Defendants, S they are exactly the same. The periods of S disqualification reflect the seriousness of the offences and their poor previous records. It is a T T disturbing fact that persons such as the 2 nd Defendant in this case find themselves in a U U V V  - 16 - A A B position where they are enabled to drive public B transport vehicles despite a simply appalling C driving record. Before this accident this C particular driver had accumulated since November 2002 along over 25 driving violations D including a large number of failing to have regard D to traffic signals, and indeed after this accident, E as we have earlier mentioned, was still driving E public buses and committing 2 further offences of failing to comply with traffic signs… F F 14. In our view the Judge erred by failing to consider the gravity of the overall circumstances of the offences. In some G G parts of his Reasons for Sentence, he seemed to regard as important the fact that only some of the aggravating features H mentioned in Cooksley, but not others, existed and this perhaps H might explain his low starting points. However, once account is taken overall of those aggravating features and other I circumstances we have earlier identified, it is clear that the I present offences are in the most serious category and that J maximum sentences ought to be imposed. The Judge was also J wrong to reduce the 1 st Defendant’s sentence by 6 months on account of his remorse and good character. In the circumstances K of the present case, these factors are of little or no weight… K L L 13. In Secretary for Justice v Fong Chai Man [2008] 3 HKLRD M 493, the Court of Appeal set out the list of aggravating and mitigating M factors mentioned in R v Cooksley: N N O “Highly culpable standard of driving at time of offence O P P (a) the consumption of drugs (including legal medication, Q known to cause drowsiness) or of alcohol, ranging from Q a couple of drinks to a ‘motorised pub crawl’; R R S (b) greatly excessive speed; racing; competitive, driving S against another vehicle; ‘showing off’; T T U U V V  - 17 - A A B B (c) disregard of warnings from fellow passengers; C C (d) a prolonged, persistent and deliberate course of very D D bad driving; E E (e) aggressive driving (such as driving much too close to F F the vehicle in front, persistent inappropriate attempts to G overtake, or cutting in after overtaking); G H H (f) Driving while the driver’s attention is avoidably I distracted, eg by reading or the use of the mobile phone I (especially if hand-held); J J K (g) driving when knowingly suffering from a medical K condition which significantly impaired the offender’s L L driving skills; M M (h) Driving when knowingly deprived of adequate sleep or N N rest; O O (i) Driving a poorly maintained or dangerously loaded P P vehicle, especially when this has been motivated by Q Q commercial concerns. R R Driving habitually below acceptable standard S S T (j) other offences committed at the same time, such as T driving without ever having held a license; driving U U V V  - 18 - A A B B while disqualified; driving without insurance; driving C as a learner without supervision; taking a vehicle C without consent; driving a stolen vehicle; D D E (k) previous convictions for motoring offences, E particularly offences which involve bad driving or the F F consumption of excessive alcohol before driving; G G Outcome of offence H H I (l) more than one person killed as a result of the offence I (especially if the offender knowingly put more than one J J person at risk or the occurrence of multiple deaths was K foreseeable; K L L (m) serious injury to one or more victims, in addition to the M death(s); M N N Irresponsible behaviour at time of offence O O (n) behaviour at the time of the offence, such as failing to P P stop, falsely claiming that one of the victims was Q Q responsible for the crash, or trying to throw the victim R off the bonnet of the car by swerving in order to escape; R S S (o) causing death in the course of dangerous driving in an T attempt to avoid detection or apprehension; T U U V V  - 19 - A A B B (p) offence committed while the offender was on bail. C C Mitigating Factors D D E (a) a good driving record; E F F (b) the absence of previous convictions; G G (c) a timely plea of guilty; H H I (d) genuine shock or remorse (which may be greater if the I victim is either a close relation or a friend); J J K (e) the offender’s age (but only in cases where lack of K driving experience has contributed to the commission L L of the offence); and M M (f) the fact that the offender has also been seriously injured N N as a result of the accident caused by the dangerous O driving. O P P 14. In Secretary for Justice v Chu Wing Yin Christine CAAR Q Q 5/2018 [2019] HKCA 1459, the Court of Appeal stated: R R “53. From this survey of relevant authorities in Hong Kong, England and Wales and Australia, certain fundamentals may be S S stated when a judge approaches his task of sentencing for causing grievous bodily harm by dangerous driving. First, the T dominant factor to be considered in sentencing for this offence T is the defendant’s culpability. This will involve two related U U V V  - 20 - A A B assessments. The first is the objective dangerousness of the B defendant’s driving; the second is his moral culpability. C C 54. To illustrate the distinction, driving through a red traffic light in a built up area would go to the objective dangerousness D of the driver’s conduct: driving in that way so as to jump a red D traffic light would go to his moral culpability. Speeding or E driving aggressively would go to the objective dangerousness of E the driver’s conduct: doing so in order to race another vehicle, or out of “road rage”, would go to his moral culpability. Driving F erratically would go to the objective dangerousness of the F driver’s conduct: sending or reading a text message on a mobile telephone whilst doing so would go to his moral culpability. G G 55. There will of course, be an overlap or inter-twining of H these two assessments, one of which focusses more on what the H driver did, the other on why he did it. Both, however, are concerned with addressing the dominant question of culpability. I I 56. Secondly, having assessed culpability, a judge should J then consider the harm and impact caused to the victim(s). J Really serious injury will already have been caused and this will be an important factor in the sentencing exercise[53]. As with K the varying level of culpability attending a defendant’s driving, K the degree of harm and impact on the victim(s) will also vary; L from a laceration to the fracture of a limb to brain damage to L lifetime incapacity. There will also be a difference in the harm and impact caused by a vehicle hitting one pedestrian and a M vehicle ploughing into a row or group of pedestrians. M 57. In assessing the issues of culpability and harm, a N N sentencing judge will have regard to the sort of aggravating factors described in the authorities, mindful that they do not O represent an exhaustive list, and conscious that the value to be O placed on any particular factor will vary according to the circumstances of each case. P P 58. Thirdly, a judge will proceed on the basis that the normal Q sentence for an offence of causing grievous bodily harm by Q dangerous driving is one of immediate imprisonment. The length of such sentence will be determined by his assessment of R the first two factors, bearing in mind that the maximum sentence R for the offence upon indictment is a fine at level 5 and imprisonment for 7 years. We consider that other sentencing S S options would only be available in exceptional cases.” T T U U V V  - 21 - A A B B Discussions C C 15. In paragraphs 3 to 7 of his submissions, counsel stated: D D E “3. As regards the objective dangerousness, the Defendant E has accepted the latest version of the Summary of Facts and highlights the following, to establish that he had not committed F any other offences under the Road Traffic Ordinance, Cap F 374. Had this not been the case it would have made this manoeuvre or act of dangerous driving far more culpable. G G (1) Paragraph 1 - “The speed limit of 50 km/hr was H imposed”; and H (2) Paragraph 7 - the Forensic Scientist Report I stated that “prior to the I collision…V was travelling at the J speed of 56 ± 6 km…along J Reclamation Street” and “decelerated to 46 ± 5 km/h when K K he was making a right turn”. L 4. In the same paragraph 7, the Forensic Scientists Report L asserted that had the Defendant been driving at 46 km/h prior to the collision and had he noticed the jaywalker, “he might” have M been able to stop in time. The possibility of stopping by driving M 4 kms below the speed limit cannot be a factor irrelevant to his N driving manner. If it does, it is not something far below what N is expected of a reasonable driver, it would by itself, because he had not exceeded the speed limit merely be careless and not O reckless. O 5. It is stressed that a Criminal Court must give the benefit P P to the Defendant and accept he had approached the turn at 50 km/h and then decelerated to 41 km/h. In other words, he was, Q at all material times, travelling within the speed limit. Q 6. In HKSAR v NG Siu-bun [2020] 1 HKLRD 553 the R R Court of Appeal quashed a conviction for “Causing Death by Dangerous Driving” and substituted it with “Careless S Driving” for this very reason. S (1) At paragraph 21 of the Judgment it was said T T “Nor was there any evidence that the applicant U was speeding above the limit of 50 kph as he U V V  - 22 - A A B negotiated the turn into Tung Chau Street. B Although the prosecution case had initially been C put on the basis that the applicant was “turning C in wet/rainy conditions at around 50 kph which was touching the speed limit”. D D (2) Then at paragraph 27: E E “And while a green light in a driver’s favour does not provide a licence for him to drive through F pedestrians whom he can see are jaywalking, he F is entitled to assume that others, both motorists and pedestrians, are obeying traffic signals. As G G we have said, and we must stress, the applicant did not infringe any traffic regulation or H provision in the RTO”. H 7. It is therefore submitted that the speed is not a relevant I factor to the manner of the driving. The “catchall phrase” at I paragraph 9 of the Summary of Facts confirms the fact that the J Defendant had driven dangerously but there are no specifics. J The sub-standard driving appears to be limited to the fact he had hit a jaywalker near or on a pedestrian crossing. Even the K description of the car camera (at paragraph 5 of the Summary of K Facts - time 18:58:16) which states, “There were jaywalkers and L V did not appear to have slowed down” contradicts the findings L of the Forensic Scientists Report at the paragraph 7, where the expert confirmed that there was deceleration.” M M 16. The above submissions were based on the original Summary N N of Facts dated 26 June 2023. Since Counsel appeared to be suggesting that O there was insufficient evidence to support the Charge, the court asked both O parties for consideration of (1) the prosecution’s case in respect of the P P alleged dangerous driving and (2) the basis of the defendant’s plea. Q Q R 17. The Prosecution admitted that the Summary of Facts did not R properly reflect what was shown in the car camera footage. The defence S S admitted that the defendant was driving too fast in the circumstances. T T U U V V  - 23 - A A B B 18. The car camera footage was played in court. The contents of C the car camera footage were admitted by the defendant. The parties agreed C to amendments to the Summary of Facts before a plea was taken (See D D paragraph 2(10) above). E E 19. By reason of the above, whilst the speed of the defendant’s F F car was not above the speed limit, it was one of the factors contributing to G his dangerous driving. G H H 20. Counsel argued that it was not clear from the Summary of I Facts where Chang was hit at the junction. According to the defendant, I Chang rushed out when the Vehicle was approaching the pedestrian J J crossing at the junction, and there was insufficient time for him to stop (See K paragraph 4 of the Amended Summary of Facts). Counsel stated that this K was inconsistent with the Prosecution’s description of the car camera L L footage. M M 21. The Prosecution was merely repeating what the defendant N N said under caution. The defendant has now admitted that Chang was O already well exposed near the 2nd and 3rd lane of Mongkok Road when the O Vehicle turned into Mongkok Road. This admission is consistent with the P P car camera footage. What the defendant said under caution was clearly Q Q untrue. R R 22. Counsel further submitted that the defendant’s moral S S culpability was extremely low. Unlike SJ v Chu Wing Yin, Christine T (supra) and SJ v Lam Siu Tong [2009] 5 HKLRD 601, there was no T evidence that the defendant had crossed the Junction against the red light, U U V V  - 24 - A A B B nor was there any evidence that he may not have seen the red light C controlling his approach. Counsel pointed out that the objective culpability C is lacking in the present case and that on this issue alone, the defendant’s D D culpability is substantially less than the defendants in the two cases E mentioned above. E F F 23. In SJ v Lam Siu Tong (supra), the then CJHC stated at G paragraph 19: G H H “At the outset of this judgment, we highlighted one feature common to both Reviews, namely, that the accidents took place I at pedestrian crossings. It hardly needs reminding that motorists I are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: it is highly likely J J that people will be crossing the road there, whatever the time of day or night. Accordingly, if motorists approach pedestrian K crossings at high speed, or disregard traffic lights, there is a high K risk that an accident will occur. And where a collision takes place, fatalities are common as we have seen in the Reviews L before us.” L M M 24. It is clear that the comments in SJ v Lam Siu Tong were not N restricted to jumping red lights. As was explained in HKSAR v Ng Siu Bun N (supra), a green light in the driver’s favour does not provide a licence for O O him to drive through pedestrians whom he can see are jaywalking. It is P clear from the Amended Summary of Facts admitted by the defendant in P the present case that he was in the habit of disregarding pedestrian Q Q crossings even when there were clearly jaywalkers on the road. R R 25. I do not agree that the defendant’s culpability in the present S S case is less than that in Chu Wing Yin Christine (supra). The facts of the T two cases are serious in different ways. In Chu Wing Yin, Christine, the T defendant failed to register that the lights were red against her. It was a U U V V  - 25 - A A B B single isolated incident. In the present case, the defendant failed to slow C down at all as he approached 2 pedestrian crossings. In Chu Wing Yin, C Christine, the defendant failed to notice the pedestrians using the crossing D D until it was too late. In the present case, the defendant failed to slow down E even though he saw the jaywalkers as he turned into Mongkok Road. In E Chu Wing Yin Christine, the court accepted that the accident was caused F F by the defendant’s lapse of attention (paragraph 40). In the present case, G because the defendant was aware of the jaywalkers as he turned into G Mongkok Road, his behaviour was completely reckless. In Chu Wing Yin, H H Christine, 3 pedestrians were injured. Only one pedestrian was injured in I the present case. However, the site of the accident was a busy junction. I The defendant was only lucky that no further pedestrians were injured by J J his driving. Further, he was disqualified under the Driving-offence Points K Ordinance on 11 December 2023. K L L 26. Counsel further submitted that there are no identifiable M aggravating factors in the present case. I disagree. The accident occurred M at or near a pedestrian crossing. The defendant has previous convictions N N for motoring offences, particularly offences which involve bad driving. O From his driving record, he appears to have a habit of speeding and O ignoring traffic signs. The Junction was in one of the busiest areas in Hong P P Kong, especially in the evening. The defendant failed to slow down when Q Q he was clearly aware of jaywalkers. R R 27. Chang’s injuries were extremely serious. He is now S S hemiplegic and has permanent cognitive impairment. T T U U V V  - 26 - A A B B 28. By reason of all the above mentioned matters, in my C judgment, the appropriate starting point is one of 24 months’ C imprisonment. D D E Mitigating factors E F F 29. The defendants has pleaded guilty at the first opportunity and G is entitled to a full one-third discount. The sentence is reduced to 16 G months’ imprisonment. H H I 30. Apart from his guilty plea, there are no other mitigating I factors. I sentence the defendant to 16 months’ imprisonment. J J K Consequential Orders K L L 31. This is the defendant’s first conviction of any form of M dangerous driving. There is no dispute that disqualification for at least 2 M years is mandatory unless there are special reasons. Counsel conceded that N N there are no special reasons. I order that the defendant be disqualified from O holding or obtaining any form of driver’s licence for 2 years. Such order O is not to start until the defendant finishes serving his term of imprisonment P P pursuant to section 69A(2). 1 year of such disqualification should be Q Q consecutive to the present disqualification order in WKCC 1501/2024. R R 32. Counsel submitted that the defendant realises that there is a S S possibility that he is ordered to attend a driving improvement course and T he has nothing to say (See paragraph 28 of the Submissions). In fact, such T U U V V  - 27 - A A B B an order is mandatory under section 72A(1A) of the Road Traffic C Ordinance. C D D 33. The defendant has already attended a driving improvement E course on 2 previous occasions. On 23 November 2015, he was ordered E by the court to attend and complete a driving improvement course. He F F failed to comply with that order. He only attended and completed the G driving improvement course on 17 February 2017. In November 2022, the G defendant was disqualified under the Driving-offence Points Ordinance. H H Despite that, he continued to drive and was found speeding on 6 December I 2022. Thereafter, he continued to ignore traffic signals and was convicted I of 3 offences between February and May 2023. He attended and completed J J another driving improvement course on 30 May 2023. On 24 December K 2023 and 19 April 2024 he went on to commit further 6 offences including K 2 counts of driving without third party insurance, 2 counts of driving whilst L L disqualified, one count of taking conveyance without authority and one M count of driving an unlicenced vehicle. He has no regard for traffic M regulations and law and order. However, the 2 driving improvement N N courses appear to have had no effect on him. He failed to comply with O traffic signals on 4 August 2023 and drove carelessly on 8 March 2024. O P P 34. The court invited Counsel to address the question of a re-test Q in the light of the defendant’s behaviour. After the hearing, Counsel Q R provided the court with the Magistracy appeal decision in HKSAR v Kwok R Ching Yeung [2021] HKCFI 3457. In that case, the appellant (who had a S S clear criminal and driving record) pleaded guilty to a summons of T “speeding” contrary to section 41(1) of the Road Traffic Ordinance. The T Special Magistrate stated that the appellant had exceeded the speed limit U U V V  - 28 - A A B B by no less than 52 km/h and his actual speed was no less than 122 km/h, C which was far in excess of the speed limit allowed in any road in Hong C Kong. He found that the appellant had either failed to abide by the law and D D had low safety awareness, or he had poor driving skills. He ordered a fine E of $4,000, disqualification for 6 months, attendance and completion of a E driving improvement course and a re-test. There was no dispute that the F F order to retake the driving test: G G (1) should not be punitive; and H H I (2) should be based on certain reasons which cast doubt on I the driving skills of the convicted person, such as old J J age or infirmity, or reason of public benefit, or the facts K of the case show that he was driving inappropriately. K L L If there was nothing wrong with his driving skills, there was no basis for M making the order to retake the driving test. M N N 35. On appeal, the learned Judge found that there were no factors O which can be indicative of the appellant’s poor driving skills. The order to O retake the driving test was set aside. P P Q 36. In the present case, the defendant’s driving record has Q R demonstrated that he has a habit of ignoring speed limits and traffic signals. R He has also ignored court orders (including bail conditions, order for him S S to attend and complete driving improvement course and orders for T disqualification). He has continued with this behaviour even after the T serious accident in the present case. As was explained above, even in the U U V V  - 29 - A A B B present case, the defendant’s failure to consider the safety of other road C users was not an isolated incident. He failed to slow down at the pedestrian C crossing on Reclamation Street even though there were jaywalkers on the D D road. It is obvious that the defendant has no regard for road safety. And E he is persistent in his behaviour throughout the time since he obtained a E driving licence. He is a menace on the road unless and until he learns the F F importance of road safety. In the interests of the safety of the general G public, the only appropriate order to make in this case is for the defendant G to re-take the driver’s competence test before he is allowed to drive again. H H Accordingly, instead of ordering the attendance and completion of a I driving improvement course, I order that the defendant shall be disqualified I from driving any class of vehicle unless and until he has passed the test of J J competence after the expiry of the disqualification period. K K Totality L L M 37. The defendant was sentenced to 4 months’ imprisonment for M the West Kowloon Magistrates’ case on 19 April 2024. These are two N N different cases. Considering totality principle, I order 2 months of the O present case to be concurrent with the West Kowloon Magistrates’ case, O i.e. 14 months to run consecutive to the West Kowloon Magistrates’ case. P P Q Q R R ( A N Tse Ching ) S District Judge S T T U U V V