HKSAR v. LAU MING LAP

DCCC 19/2018

[2018] HKDC 780

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 19 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to a charge of causing death by dangerous driving. He was driving a taxi along the third left lane of Lai Chi Kok Road towards a pedestrian crossing and the vehicular light was green but there was a pedestrian, Mr Ip, walking on the pedestrian crossing between the second and third lane. The defendant’s taxi hit the pedestrian. He was thrown into the air and subsequently died from his injuries.

The summary of facts

2.  This tragedy happened on 12 September 2017 at about 7.36 pm when the defendant was driving his taxi, SN 4910, on Lai Chi Kok Road westbound near Nam Cheong Street, Sham Shui Po.  He had a passenger in the rear of his vehicle, Mr Alan Chan.

3.  At the material time the weather was fine, street lighting was sufficient, the road surface was dry, the traffic was normal, and all traffic lights for pedestrians and vehicles were functioning properly.  The defendant’s taxi had no mechanical defects.

4.  The defendant was approaching a large intersection.  This section of Lai Chi Kok Road is a six-lane dual carriageway that is divided into three lanes westbound and three lanes eastbound by a central divider.  There is a yellow box at the junction of westbound Lai Chi Kok Road and northbound Nam Cheong Street, which is the relevant intersection, and there is a pedestrian crossing after the yellow box.   The speed limit here is 50 kilometres per hour.

5.  At 7.36 pm the defendant was driving westbound along the third left lane of Lai Chi Kok Road.  There were no other vehicles driving along the first and second left lane next to the defendant.  Mr Chan, his passenger, was paying special attention to the defendant because he had been driving in a particularly bad manner since he had boarded his vehicle.  He had been using his brakes in a heavy-handed manner, making for an uncomfortable ride. 

6.  When the defendant drove near the intersection and the yellow box, Mr Chan saw Mr Ip, the deceased, walking up ahead and along the westbound crossing towards a safety island.  At that time the vehicular light was green for the taxi.

7.  Mr Chan could see that the deceased was walking slowly with his head down and had reached the dividing line between the second and third left lane.  He was still on the road but almost at the safety island.  Realising that the defendant was in the third lane and had not slowed down, Mr Chan said to the defendant, “Hey, crash, crash!”  But the defendant did not respond or brake and the offside of the taxi hit the deceased.

8.  According to the measurements taken later, the taxi stopped 11.2 metres away from the point of impact, while the deceased was thrown into the air and landed about 17.2 metres away from the point of contact.  It was Mr Chan who made a telephone report to the police.

9.  After the police arrived, a screening breath test was conducted with the defendant at the scene and no alcohol was detected.  He was arrested at the scene and, under caution, he said he was in the third left lane and there was a 5.5-ton truck driving right beside him in the second left lane, and, when he accelerated past the truck, suddenly the deceased dashed out in front of the truck and he unavoidably hit the deceased.

10.  Just over an hour later, when the police had confirmation that the victim had died, the defendant was cautioned again and he gave the same explanation. 

11.  Mr Chan, his passenger, and CCTV cameras in the vicinity confirmed that there was no 5.5-ton truck that moved in parallel with the defendant’s taxi in the second lane, as he alleged, just before he hit the deceased.  It was simply not true.

12.  Later, traffic accident reconstruction officers conducted tests at the scene and their findings were that the speed of the taxi prior to the collision was around 41 to 45 kilometres per hour; that is within the speed limit.  Also, there was a period of 5 to 6 seconds between the defendant’s first sight of the deceased at Road Mark 1 and the time of collision.  Road Mark 1 was, according to the sketch, some 60 metres from the point of collision.

Mitigation and sentence

13.  The defendant is 71 years old, married with one son.  He had been a professional driver for 40 years and retired two years ago.  However, he spent all his savings and has had to work as a part-time taxi driver, but has only worked one to two days a month, earning $400 a day.  This accident happened on such a day.

14.  His wife works as a cleaner and, since the accident, has had to work two jobs to support them.

15.  I have been told the defendant is of ill health, has high blood pressure, high cholesterol, renal problems, feels depressed since the accident, which is hardly surprising, and is on crutches today because he is finding it hard to walk due to old age.  There are no medical reports to support those submissions put forward in mitigation, but they are all ailments commonly associated with old age.

16.  Miss Cheung has said all she can on the defendant’s behalf and produced two authorities in mitigation.  She urges this court to consider the categories of culpability on the Cooksley scale and submits that the facts of this case and the driving manner of the defendant show there are no aggravating circumstances, therefore putting this case in the lowest category of culpability.  She submits a 12-month starting point or thereabouts would be appropriate.

17.  Miss Cheung has taken me to the authority of the Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70.  That authority repeats the principle that emerged from the case of the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, that a deterrent sentence is called for because of grave consequences that flow from this offence.  At the same time, the court recognises that the culpability of the defendant is the dominant factor in the sentencing exercise, which is why the courts in Hong Kong have adopted the approach of Cooksley.  The Hong Kong courts have not adopted the Cooksley range of sentence as the tariff here.  She submits that the defendant’s driving manner does not come within any of the examples of aggravating factors repeated in that authority.

18.  In Liu Kwok Chun, Cheung JA said at paragraph 37:

“In assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the more serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness. In between these two extremes, there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at paragraph 15.”

19.  The judge goes on to repeat the aggravating factors and groups them under headings.  The first heading is factors under “highly culpable standard of driving” and the only relevant factor to this defendant is the third, which is a disregard of warnings from fellow passengers. 

20.  Miss Cheung submits that the defendant’s passenger, Mr Chan, shouting a warning of an impending collision with the deceased is not an aggravating factor here.  That type of aggravating factor is more applicable to passengers shouting at a driver to stop speeding just prior to a collision.  She also submits that the warning from the passenger was only seconds away from the collision, so it was perhaps of little use or consequence.

21.  With respect, I disagree.  For some unknown reason, the defendant totally disregarded the warning from his passenger that he was about to hit the deceased.  His passenger could see it clearly from some distance away.  He shouted because he felt that the defendant did not slow down when approaching the deceased.  This tragedy has occurred because of a monumental, momentary and dangerous error of judgment.  It is an aggravating factor I should take into account.

22.  This accident was senseless.  It could have been avoided by the defendant if he had heeded his passenger’s warning immediately and, equally importantly, paid attention to the road in front of him.  From the sketches and professional reconstruction, it is clear that he should have had sight of the deceased for five or six seconds and from a good significant distance on a straight road with nothing blocking his view.  He could so easily have changed or shifted lanes to avoid the deceased.  This is also a factor I cannot ignore when considering culpability.  I imagine the deceased thought the same and continued to cross the road despite vehicles having the right of way.

23.  In addition, shame on the defendant for trying to lay blame on the deceased under caution, not once but twice.  He shows a lack of remorse at the time of the accident and in fact shows quick thinking to fabricate a story for a police officer immediately after knocking down the deceased.

24.  Miss Cheung submits the defendant perhaps was confused, mixed up and in shock, but I am less inclined to believe that when the detail of his lie is so specific.

Sentence

25.  I will consider the fact that the defendant has a clear record, but in the last few years he has been convicted of several careless driving offences which should have served as a warning to him.  He has a poor driving record and has been disqualified twice in the last four years. 

26.  It is not easy to sentence someone like the defendant who has a clear record, but at the same time I must consider the deceased and the deceased’s family, who have suffered needlessly because of the defendant’s inexplicable momentary lapse of judgment behind the wheel.  In the course of sentencing, I need to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced and proportionate.

27.  I have considered long and hard what the appropriate length of imprisonment should be, bearing in mind the facts of this case.  The court must consider a deterrent sentence and remind the general public that vehicles are lethal weapons and drivers must bear the responsibility for their driving manner on the roads.

28.  In assessing the defendant’s degree of culpability, I accept that there was a momentary error of judgment, which, in my view, has been aggravated by the fact that the collision could have been avoided if the defendant had reacted immediately to his passenger’s warning and been paying attention to the road in front of him.  I consider the present case falling at the lowest end of the intermediate culpability category of the Cooksley scale.

29.  Having considered all mitigation and relevant factors, I adopt a starting point of 24 months’ imprisonment.  A one-third discount is given for the defendant’s plea, which reduces this sentence to 16 months’ imprisonment.

30.  For this offence, I sentence the defendant to 16 months’ imprisonment.

31.  In addition to imprisonment, I make a disqualification order for a period of 5 years.  The defendant is disqualified from driving all types of vehicles and it will take effect from today.

32.  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.