HKSAR v. LAM SIU TONG

 DCCC820/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 820 OF 2008

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Reasons for Sentence

1.  Defendant, you have pleaded guilty to a charge of dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance, Cap.374.

2.  You have admitted that on the 8th day of March 2008, at Castle Peak Road-Lingnan, New Territories, in Hong Kong, caused the death of female Lam Yuk-yung by driving a motor vehicle, namely a private car displaying registration mark JX 3848, on a road dangerously. 

3.  On 8 March 2008, at about 7.15 am, you were driving your own motor vehicle in the second Tuen Mun-bound, southbound lane of Castle Peak Road, and had a passenger in the front seat.  On the pedestrian crossing, next to the main campus of Lingnan University, your vehicle hit female Lam Yuk-yung whilst she was crossing the road.  As a result of the collision with Madam Lam, she died from multiple injuries sustained in the accident. 

4.  There were five eye-witnesses to the collision.  PW2 and 3 were passengers in a car driven by PW1.  PW4 and 5 were pedestrians walking on the pavement nearby.  At that time PW1 was driving his vehicle in the first lane of the Castle Peak Road and he had seen your vehicle overtake his vehicle.  Soon after that, he saw ahead of him, when your vehicle had almost reached the accident scene, that the governing traffic light towards your direction had turned amber.  PW1 heard a sharp braking noise coming from your vehicle and saw at the time of the collision with Madam Lam the traffic light facing you was red. 

5.  The witnesses saw no other vehicle travelling on the road at the time of collision.  PWs 1 to 5 gave various estimates of your speed at the time.  They estimated that the speed of your vehicle was between 60 kilometres an hour to 120 kilometres an hour.  They described the driving speed as at a high speed.  Madam Lam was witnessed to have been thrown high into the air when your vehicle collided with her.  A pair of skid marks 32.8 metres long on the left and 36.4 metres long on the right at the scene of the collision matched the tyres of your vehicle.  The left front, including the windscreen of your vehicle, was damaged.

6.  Police officers conducted an accident reconstruction to ascertain the speed of your vehicle at the time of the collision.  Your vehicle was estimated to be travelling at 82 kilometres plus or minus 8 kilometres, that is between 74 and 90 kilometres an hour.  A motor vehicle examiner with the Transport Department examined your vehicle after the accident and found that the vehicle had no mechanical defects and the brakes were working properly.  An engineer with the Transport Department examined the traffic lights at the pedestrian crossing and confirmed that they were working normally with no defects detected.

7.  Photographs were taken at the scene by three separate officers on the day of the accident and on 10 March and on 18 March, and the captions on the photographs were not in dispute and clearly depicted the location of the accident, including your vehicle, the damage to your vehicle, the skid marks and the pedestrian crossing. 

8.  Soon after the collision, police officers arrived and located you.  You told the police officers that you were driving at about 70 kilometres an hour and the traffic light facing you was green when Madam Lam ran in front of your vehicle. 

9.  The Castle Peak Road is a two-way carriageway with two lanes of traffic on each side, divided by railings in the middle of the road.  The speed limit of the road was 50 kilometres an hour.  The pedestrian crossing on which Madam Lam was hit was controlled by a pair of traffic lights and was located next to the main campus of Lingnan University.  At the time of the accident, the weather was fine and the road was dry.  Traffic flow on the road was light.  The stretch of road was straight and unobstructed. 

10.  Defence counsel, Mr Hoosen yesterday, and this morning Mr Lau, has made full and thorough mitigation on your behalf.  I have also received a letter which you have personally written to the court as well as accompanying letters from various people.  I have also been referred to a number of dangerous driving causing death cases by Mr Hoosen and I have taken all that he has said on your behalf and the various cases into account when passing sentence upon you.  The cases cited by Mr. Hoosen were HKSAR v Sin Kit Sang [2006] 4 HKC 472, Park Myung Hwa [2004] 3 HKC 564, Tam Kwok Choi HCMA 700/2008, within Tam Kwok Choi, the case of Secretary for Justice v Fong Tsai Man [2008] 3 HKLRD 494, Mr Loftus, counsel on fiat, also provided the court with the case of Au Yeung Kwok Kin unreported decision, CAAR21/2008, today which your counsel, Mr Lau, has made further mitigation in respect of that case.

11.  Defendant, you are 32 years of age and of clear record.  You do have a record of traffic offences which I shall refer to later.  You are single, have a steady girlfriend.  You were, however, due to be married at the end of last year, but for this accident.  You have not married.  You are employed by the Kowloon Motor Bus Company as a bus maintenance technician, earning $18,000 a month.  Your workplace is at a depot in Yuen Long and your supervisor Mr Ng has written a very supportive letter on your behalf to which I have taken note of.  The passenger in your car has also written a letter on your behalf and so has your girlfriend. 

12.  I am informed that on the day of the accident, you had just finished work in the early morning.  As usual, after work, you gave your colleague, Mr Tsui, a lift back to his house.  After dropping him off, you would then drive yourself home where you live in Tuen Mun.  It was, I am informed, your girlfriend’s birthday two days before the day of the accident.  You were, however, only due to meet her that day.  You were in a hurry as you wanted to meet your girlfriend, so you wanted to get home as soon as possible so that you could meet her in Tsim Sha Tsui.  For that reason, you drove at a speed exceeding the speed limit.  And as a result of your speed, you could not stop in time and collided and killed Madam Lam.

13.  In your penned letter to the court, you say you are very remorseful and ashamed to see the deceased’s family.  After the offence, you felt very sad, you could not eat, could not sleep and your job has been affected.  You have now realised how precious life is and you apologize to the deceased’s family, you offer your sincere apologies to the deceased’s family, friends and relatives.  You have not driven any more after the offence.  You realise that you will face a heavy penalty and you are willing to face it.  Your girlfriend also says you are very remorseful for what you have done, and although your marriage was postponed due to this accident, she will wait for your release from imprisonment and marry you thereafter.  All the letters in support recognise your sadness in committing this offence and apologies to the victim’s family. 

14.  Clearly, there are no guidelines for this offence.  Since July 2008, the maximum term of imprisonment on indictment for this offence was increased from 5 years to 10 years.  Your offence took place in March 08 and hence the amendment does not apply to your case.  The maximum penalty therefore in your case is one of 5 years’ imprisonment.  The cases that I have been referred to have a very wide range of sentences.  They vary considerably.  One of the most recent cases is that of Tam Kwok Choi, a Court of First Instance decision of 5 November 2008, handed down by Bohkary J, to which she considers many of the cases referred to by your counsel Mr Hoosen.

15.  There is however a Court of Appeal decision referred to me by Mr Loftus this morning, Au Yeung Kwok Kin, which was delivered on 25 August 2008 which appears not to have been brought to Bohkary J’s attention.  That case was a Court of Appeal case which also considers the cases mentioned in Bohkary J’s case and of course the very well-known case by the Court of Appeal handed down on 3 November 2006 of Secretary for Justice v Poon Wing Kay [2007] 1 HKC 289.

16.  In considering an appropriate sentence, I have regard to your plea of guilty and your genuine remorse shown to the court.   The case was set down for three days, but you pleaded guilty on the first day of the trial.  Although the three witnesses attended, they did not have to give evidence.

17.  You of course have a clear criminal record, but you do have a traffic offence record which dates back to 1998.  You have had three convictions for careless driving being in 1998, 2004 and 2007.  You have an offence of driving in excess of speed limit by more than 15 kilometres but not more than 30 kilometres an hour in 2003 March, and crossing a continuous double white line or white line with a broken white line in December 2003, using a vehicle without insurance in 2004 and failing to display a valid licence in 2006.  For all of those traffic offences, you were fined save for the using of vehicle without insurance, you were fined in addition to a 12-month disqualification.  I do not consider this a particularly good record.

18.  At the time of the collision, you were driving, on your own admission, at an excessive speed, at a speed of 70 kilometres an hour in a 50 kilometres zone.  The accident reconstruction states that the speed was at least 74 kilometres which is approximately 24 kilometres over the speed limit, or at most 90 kilometres which is 40 kilometres over the speed limit.

19.  The offence occurred on a Saturday morning at 7.15 right outside Lingnan campus.  It was also near a school and in the immediate vicinity were residential blocks of flats.  You drive on this road regularly as you use this road to drop your colleague off at his home and then continue home, you are therefore familiar with this stretch of road.  This is an area where it is expected there would be pedestrians.  Even though I accept that the time of the accident and the date may not necessarily indicate that there would be many pedestrians, nevertheless, you must have been aware that certainly there would be pedestrians using that stretch of road. 

20.  This is not a case only that you failed to take a proper lookout as in the case of Fong’s case.  The road was straight and unobstructed.  It was quite a long piece of road.  When approaching the crossing, the light as stated by PW1, which I accept, was amber and by the time that your vehicle hit Madam Lam, the vehicle lights were red.  Mr Hoosen accepts that the amber light would have been on for approximately 3 seconds prior to it turning red, as is stated by one of the witness statements from the expert engineers in the case file. 

21.  In the Road Users’ Code, the light changes from green to amber then to red.  It states in the Road Users’ Code when an amber is showing, that you must stop unless you are so close to the junction of crossing, that to do so suddenly might cause an accident.  In this case, in your driving case, you should have obeyed and stopped when you saw the amber light.  You do not fall within the exception.  You could not stop because you were travelling at an excessive speed. 

22.  In the case of Au Yeung Kwok Kin, (which is a Chinese Judgment and to which was just translated to me by my interpreter) at paragraph 10, Tang JA says:

“According to the applicant, he said he jumped the amber light instead of the red light.  It was not accepted by the trial judge and therefore when I assess the present case, I need to assess whether the sentence was too heavy based on the fact that he jumped a red light and caused dangerous driving.”

I stress the following stated by Tang JA,

“However, I have to point out that even if the defendant had jumped the amber light, the offence itself is still very serious.   Drivers should not underestimate such an illegal act and the serious consequence it can cause.”

23.  I find there are aggravating factors in this case.  Those are, as I have mentioned, your traffic offence record, the excessive speed at which you were driving, failing to take a proper lookout and failing to stop when an amber light was showing.  This driving was blatantly irresponsible.  This potential danger to the public and pedestrians and other users of the road had serious consequences.

24.  I expressed yesterday to Mr Hoosen that the cases to which he was in fact referring me to were, in my view, too lenient.  Mr Hoosen was not aware of the case of Au Yeung Kwok Kin yesterday, but it appears now certainly that the Court of Appeal has said at paragraph 17 in Au Yeung Kwok Kin that “In fact, in my opinion, the sentencing of such kind of cases in the past was too lenient.”  It appears that the Court of Appeal in Au Yeung’s case says that those decisions are no longer convincing and after the case of Poon Wing Kay which sentence was given on 3 November 2006, that drivers of Hong Kong should know how serious this offence is and how the court views this offence.  Yeung JA agreeing with the decision by Tang JA also added that in his opinion, the court should send out a clear message, the court will not sentence leniently in respect of drivers who neglect the life and safety of other road users, professional drivers in particular.  This is to deter any deliberate dangerous driving and to protect the safety of other road users. 

25.  Defendant, please stand up.  In this case, having considered the various cases before me and I accept, Defendant, that you are not a professional driver and I am not sentencing you on that basis.  This was a deliberate act by you of driving at an excessive speed, trying to get to an appointment to meet your girlfriend which was not of any urgency as there has been no submission that it was.  You neglected the life and safety of other road users, and as a result of your dangerous driving, you sadly caused the loss of life of a young victim, Madam Lam, aged 27.

26.  No doubt a deterrent sentence of imprisonment is the only appropriate sentence in this case.  Had I convicted you after trial for this offence, I would have taken a starting point of 18 months' imprisonment.  However, that sentence shall be reduced, to take into account your plea of guilty and your genuine remorse, and that term shall be reduced to one of 12 months' imprisonment to which you are so sentenced.  You will also be disqualified from driving for a period of 3 years.