|
CAAR 5/2018
[2019] HKCA 1459
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
APPLICATION FOR REVIEW NO 5 OF 2018
(ON APPEAL FROM DCCC NO 452 OF 2018)
________________________
BETWEEN
| |
Secretary for Justice |
Applicant |
| |
and |
| |
Chu Wing Yin Christine (朱詠妍) |
Respondent |
________________________
| Before: |
Hon Macrae VP, Pang JA and Zervos JA in Court |
| Dates of Hearing: |
12 July 2019 and 23 September 2019 |
| Date of Judgment: |
23 December 2019 |
________________________
J U D G M E N T
________________________
Hon Macrae VP:
1. With leave granted by Hon Yeung VP on 5 December 2018, the Secretary for Justice applies for a review of the sentence of a Community Service Order for 200 hours, being the main component of the sentence imposed on the respondent by HH Judge Casewell (“the judge”) in the District Court on 12 November 2018, following her conviction on a charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (“the RTO”). To this charge, the respondent had pleaded guilty.
2. When the matter originally came before this Court on 12 July 2019, we were concerned that we had not been provided with sufficient material from the parties to assess the appropriate quantum of sentence, the arguments being primarily focussed on matters of sentencing principle. Accordingly, we drew a number of authorities from England and Wales, and from various State jurisdictions in Australia, to the attention of the parties and requested to be addressed on the principles and quantum of sentence applicable in these jurisdictions as well. We also wished to be advised of the prevalence and current levels of sentencing for the offence locally in the District Court. Since the parties were obviously not in a position to assist the Court immediately, we adjourned the matter for further argument to a date to be fixed.
3. At the resumed hearing on 23 September 2019, having heard full argument from the parties, we reserved our decision and indicated that we would hand it down at a later date. This is our decision and the reasons therefor.
Circumstances of the offence
4. The facts admitted by the respondent were that at 7:48 am on 3 November 2017, she was driving a private vehicle in a northwest direction along Gascoigne Road in Yau Ma Tei, Kowloon. She approached a pedestrian crossing controlled by traffic lights near the junction of Gascoigne Road and Chi Wo Street in Yau Ma Tei at a speed of about 50 kph. Three females, PW1, PW2 and PW3, had been standing on the safety island in the centre of the road waiting for the pedestrian traffic lights to turn green in their favour so that they could cross the northwest bound carriageway. On that morning, the weather was fine, the road surface was dry and the traffic flow was normal. The particular section of Gascoigne Road in question was in good repair. The traffic lights at the pedestrian crossing were all functioning properly.
5. After the traffic lights controlling vehicles on the northwest bound section of Gascoigne Road turned red, the pedestrian lights controlling the pedestrian crossing turned green. PW1, PW2 and PW3 accordingly stepped onto the pedestrian crossing in order to cross the northwest bound carriageway. The respondent, however, failed to brake or stop at the pedestrian crossing and collided with the three women with the offside front of her vehicle. PW1 and PW2 bounced off the respondent’s vehicle and landed in the carriageway. PW3 fell backwards in an attempt to avoid the respondent’s vehicle. The respondent continued on for a short distance before bringing the vehicle to a halt. At all material times, the traffic signals governing the northwest bound carriageway in which the respondent was travelling were red.
6. As a result of the impact, PW1 sustained serious multiple injuries; while PW2 and PW3 were also injured, PW2 more so than PW3. PW1 and PW3 were conveyed to Queen Elizabeth Hospital; PW1 in an unconscious state. PW2 initially returned home but attended the hospital later that day.
Footage from the respondent’s vehicle camera
7. A camera installed in the respondent’s vehicle captured the course of the traffic accident as it happened. The circumstances gleaned from the video footage from that camera were agreed as summarised below:
| Time |
Incidents |
| 7:48:19 am |
The respondent’s vehicle (“V”) was travelling along the 3rd lane of Gascoigne Road in a westbound direction. |
| 7:48:20 am |
V was driving forward, as the red overhead traffic lights at the pedestrian crossing appeared in the footage. |
| 7:48:22 am |
V continued moving forward and the red traffic lights at the safety island also appeared in the video footage. |
| 7:48:24 am |
The pedestrians on the safety island began to cross the road, and one of them stepped onto the pedestrian crossing. |
| 7:48:25 am |
Three pedestrians were crossing the 3rd lane of Gascoigne Road on the pedestrian crossing, but V was still travelling forward without braking or slowing down. |
| 7:48:26 am |
One of the pedestrians looked to her left, and then tried to step back immediately. When the front of V reached the white stop line at the pedestrian crossing, a tassel suspended inside V swung forward[1]. Immediately thereafter, V hit the pedestrians on the pedestrian crossing |
| 7:48:27 am |
V came to its final stopping position. |
Medical condition of PW1, PW2 and PW3
8. Upon medical examination, following her admission to hospital, PW1 was found to have sustained an abrasion over her forehead. An immediate CT scan revealed that she had suffered a traumatic subarachnoid haemorrhage and small subdural hematoma, as well as a fracture to her left superior pubic ramus and left sacrum. Her condition deteriorated throughout the day, as a result of which a further CT scan was performed upon her. A craniotomy with clot evacuation was then performed. Post-operatively, PW1 developed persistently high intra-cranial pressure, which led to a further craniotomy and an infarctectomy being performed. She was subsequently discharged from hospital on 7 December 2017. A follow-up on 3 January 2018 revealed she had residual dysphasia and acalculia (the impairment of mathematical skills).
9. In a subsequent interview, PW1 stated, inter alia, that she was continuing to suffer from aphasia, right body paralysis, movement difficulties, and mild cognitive impairment. As a result, she required a care giver to assist with her daily activities.
10. PW2 attended the hospital at 1:35 pm on 3 November 2017. Medical examination revealed that she was suffering from epigastric tenderness, and right upper quadrant bruises. She was diagnosed with road accident trauma with splenic laceration. She was discharged from hospital on 11 November and recommended for 26 days’ sick leave from 3 to 29 November 2017.
11. PW3 was conveyed to the hospital immediately after the accident and given 7 days’ sick leave[2].
Expert evidence
12. According to the expert evidence of a forensic scientist who examined the camera of the respondent’s vehicle, the speed of the vehicle was 52 kph, + or – 5 kph, at about 0.97 of a second before impact. Further, the vehicle had its brakes applied from the time the tassel fell forward at 7:48:26 am, which was when the vehicle had reached the white stop line of the pedestrian crossing.
13. Physical examination of the vehicle by a motor vehicle examiner confirmed that it had no mechanical defects. However, the vehicle had sustained damage to its front offside bodywork, its windscreen and its right rear view mirror.
The respondent’s arrest and cautioned response
14. At about 9 am on 3 November 2017, the respondent was arrested at the scene of the accident. Under caution, she said she remembered that the lights were green in her favour when she arrived at the traffic lights controlling the pedestrian crossing; accordingly, she continued driving through the crossing. However, at that moment, some pedestrians suddenly stepped onto the carriageway from her right. She immediately applied the brake, but still knocked the pedestrians down.
Procedural history of mitigation and sentencing hearing
15. The mitigation and sentencing in the present case occurred over three days. On 12 October 2018, the judge ordered a background and psychiatric report on the respondent, since she was said to be suffering from post-traumatic stress disorder, and adjourned the hearing until 26 October 2018. The respondent was ordered to be remanded in jail custody pending the preparation of the reports.
16. On 26 October 2018, having viewed the video footage from the camera of the respondent’s car, and after considering the reports, the judge ordered the preparation of a further report as to the respondent’s suitability for a Community Service Order, and adjourned the hearing to 12 November 2018. The respondent was granted bail pending the preparation of the report.
17. On 12 November 2019, the respondent was sentenced, with her consent, to a Community Service Order for 200 hours. She was further disqualified from driving for a period of 4 years and ordered to take and complete a driving improvement course at her own expense within the last three months of the disqualification period. No issue is taken at this application in respect of the orders of disqualification and the completion of a driving improvement course.
Mitigation
18. The respondent was 33 years of age and single at the time of sentencing. She resided with her parents, who were retired, and also her brother. She obtained her driving licence in 2015 and purchased the vehicle in question in August 2016, mainly using it at weekends to take her...
| 
