HKSAR v. LAI SHU NAM

DCCC 1054/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1054 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant is charged with one count of “Causing death by dangerous driving”, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374 (the first charge).  He pleaded guilty to the lesser charge of “Careless driving”, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374.  The prosecution accepted his plea to the lesser charge.  The defendant also pleaded guilty to one count of “using a vehicle without a suitable apparatus for extinguishing fire which was maintained at all times in good and efficient working order”, contrary to regulations 9(2)(c) and 12(2) of the Road Traffic (Safety Equipment) Regulations made under the Road Traffic Ordinance, Cap. 374 (the second charge), one count of “Using a defective vehicle”, contrary to regulations 5(1)(a) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374 (the third charge) and one count of “Using a motor vehicle with an illegal visual display unit”, contrary to regulations 37(3) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374 (the fourth charge). 

Facts

2.  The accident took place on a pedestrian crossing at Dundas Street near the junction of Reclamation Street in Mongkok on 16 April 2015.  At the material time, the deceased Madam Kam, aged 58, was crossing the road against the red pedestrian light.  She was crossing at a fast pace and kept looking down.  About 2 seconds later, when Madam Kam reached between the 1^st and 2^nd left lanes of Dundas Street near the white stop line, the defendant’s public light bus approached and the middle front of the vehicle collided with the right side of Madam Kam and knocked her down.  Madam Kam passed away on 20 April 2015 due to pneumonia with intervening antecedent cause being head injury. 

3.  Witnesses present at scene confirmed that there was no vehicle parking on the 1^st or 2^nd left lanes of Dundas Street.

4.  Upon inquiry, the defendant at scene stated that he was driving the vehicle along Dundas Street and the traffic lights were green when Madam Kam suddenly dashed out onto the road from the left of the vehicle.  The defendant was unable to stop in time and therefore collided with Madam Kam.  

5.  In subsequent video-recorded interview, the defendant admitted under caution that he was travelling along Dundas Street between the 1^st and 2^nd lanes.  When he approached the accident location, he slowed down.  Madam Kam suddenly walked out to the road from the front of an unknown truck parking on his left on Dundas Street.

6.  Upon examination, the following defects on the vehicle were revealed: (a) the fire extinguisher was not maintained in good and efficient working order (next maintenance in February 2015 was shown on the fire extinguisher; (b) the interior mirror fitted behind the windscreen was not suitable for use (the edges of the mirror were not wrapped completely with protection material and it did not have proper backing plate); and (c) visual display unit was installed forward of driver’s seat (the visual display unit enabled the display of stored visual image of DVD). 

Mitigation

7.  The defendant is aged 59, divorced with a 10-year-old son.  He had been a driver for 18 years and had been driving public light bus for 4 years prior to the accident.  After the accident, the defendant was not working and lived on CSSA.  The defendant has one previous conviction record for shop theft in 2005.  For the traffic records, the defendant has one conviction for careless driving in 2013.     

8.  Mr Boyton submitted that the subject matter for the second to fourth charges did not relate to the defendant’s manner of driving.  For the careless driving, Mr Boyton submitted that the defendant stopped the vehicle before the pedestrian crossing but accepted that the defendant was driving without due care and attention.  Mr Boyton referred to two cases[1] and submitted that the deceased in this case was not blameless as she went against the red pedestrian light.  Mr Boyton further submitted that this was not a case where the court should impose imprisonment on the defendant.  Mr Boyton suggested the court could impose a fine and a long period of disqualification.   

9.  Having considered the mitigation, I adjourned the case for a suitability report for community service order.

Sentence

10.  The maximum sentence for the offence of careless driving is a fine of $5,000 and imprisonment for 6 months. 

11.  There is no sentencing guideline for this offence as obviously each case must be decided on its own facts.  However, the Court of Appeal has repeatedly stated that the law imposed a standard on a motorist to ensure that all who came into contact with motor vehicles were safe, be they motorist, passengers and pedestrians (see Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660).  Motorists are required to exercise the utmost care when approaching pedestrian crossings for the obvious reason that it is highly likely that people will be crossing the road there, whatever the time of day or night (see Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601).     

12.  In this case, the accident occurred at a pedestrian crossing.  Prior to the accident, the defendant had been driving for the same route for 3 years.  Thus, he must be familiar with the route, in particular, that there was a pedestrian crossing at the accident location. In mitigation, it was submitted that vehicles usually parked at the lay-by on both sides of the two lanes and it was common for driver to drive his vehicle in between the two lanes as depicted in the photos (see photo 8 of photo album 2 and the photo submitted by the defence during mitigation).  While the defendant might have travelled between the first and second lanes, it was an admitted fact that at the material time there was no vehicle parked on the first and second left lanes.  Although he stated under caution that his view was blocked by a truck parked before the traffic light, that was inconsistent with the facts admitted by him.  Mr Boyton did not make any submission on this point upon my invitation.  Based on the admitted facts, I found the defendant’s view was not obstructed.  In the circumstances, when the defendant approached the pedestrian crossing, he should pay extra care as there was always a likelihood that pedestrian might appear in the crossing.  Since his view was not obstructed and that part of the road is a straight road, he should have noticed the presence of Madam Kam when she was crossing the road.  By reason of his failure to pay attention to the surrounding and extra care to the fact that pedestrian might appear at the crossing, the accident happened.  I find this to be a serious case of careless driving.  Therefore, I do not consider a fine to be an appropriate sentence.

13.  The case of Leung Chiu Yu referred by Mr Boyton can be distinguished from the present case in that the view of the driver in that case was obstructed by the curve in the road and the group of adults at the safety island and that the driver was a young man with promising career.

14.  Having said that, since the defendant was not travelling against the traffic light or travelling at high speed, I do not find this case to be so serious that warrants imprisonment. 

15.  The probation officer states in the suitability report that prior to the accident, the defendant was able to maintain a stable working pattern and provided regular financial contribution to his family.  The defendant was remorseful and willing to take up unpaid work.     

16.  In sentencing the defendant, I have borne in mind the nature of the offence that the defendant was convicted of.  I have borne in mind the facts which reveal the carelessness on the part of the defendant when approaching the pedestrian crossing.   I also take into consideration the fact that a death occurred as a result of the defendant’s careless driving.  I am of the view that a community service order of 200 hours is appropriate in this case. 

[Requirements of Community Service Order explained. The defendant understood and is willing to comply]

I therefore sentence the defendant to 200 hours of community service.

17.  In addition to a Community Service Order, I make a disqualification order for a period of 4 months for all classes of vehicles under section 69(1) of the Road Traffic Ordinance, Cap. 374.  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period under section 72A(3B)(a) of the Road Traffic Ordinance, Cap. 374.

18.  As for the second to the fourth charges, I consider that a fine of $600 is appropriate for each of the charges.  The total fine is $1,800.