HKSAR v. LEE YAT SING

DCCC 1323/2023

[2025] HKDC 278

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1323 OF 2023

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Causing death by dangerous driving". He knocked down a jaywalking male pedestrian when driving a public double-decker bus making a right turn.

Summary of Facts

2.  The accident took place at the junction of northbound Hong Ning Road and Mut Wah Street in Kwun Tong ("the Junction").

3.  About 3:25 p.m. on 15 April 2023, the defendant was driving a KMB route 89X double-decker bus PV8951 ("the Bus")  along the 3^rd left lane of northbound Hong Ning Road with passengers on board.

4.  The Bus stopped at a red vehicular traffic light before making a right turn onto Mut Wah Street[1]. When the traffic light turned green[2], the Bus moved forward and began turning right onto Mut Wah Street.  At the same time, Mr. Chan (aged 83; the deceased)  started to walk across Mut Wah Street from the 2 eastbound lanes towards the 2 westbound lanes (i.e. from the nearside of the Bus to its offside).  Metal railings were erected on the pedestrian pavement of both sides of Mut Wah Street (eastbound and westbound)  within the vicinity of the Junction.   In other words, the deceased was jaywalking.

5.  As the front of the Bus has moved onto Mut Wah Street, its offside front hit the deceased[3]. The Bus ran over the deceased and he was trapped underneath the Bus near the nearside wheels of its 3^rd axle[4]. According to Channel 1 of the Bus's dash cam, it came to a complete stop at 15:26:42 (i.e. about 8 seconds after it hit the deceased).

6.  Ambulancemen found the deceased unconscious with no breath and no pulse.  He was sent to the hospital.  Upon examination, the deceased was found having sustained multiple limbs deformities; bleeding from nose; multiple deep lacerations on head; and palpable fracture on chest wall and pelvis with hips deformities.  He was certified dead at 4:07 p.m. on the same day.  Autopsy concluded that the direct medical cause of death was multiple injuries.

Police investigation

7.  The offside windscreen of the lower deck of the Bus was cracked.  No mechanical defect of the Bus was found; particularly, the brakes were found to be operative.

8.  At the scene, the defendant told WPC 14013 that when he was turning right onto Mut Wah Street from Hong Ning Road, he suddenly saw the deceased appearing at the offside front of the Bus and it hit the deceased.

Expert opinion

9.  A forensic scientist, Dr. Tao Chi Hang, examined the relevant dash cam and CCTV footage obtained by the Police and conducted an accident reconstruction at Kowloon Bay Vehicle Examination Centre.  He concluded that from 10 to 4 seconds before impact, the driver could have had an unobstructed view of the deceased through the windscreen.  The possibility of the area around the deceased being obstructed by the offside front structural column of the Bus could be eliminated.  From 3 seconds before impact until the moment of impact, the offside front structural column of the Bus could have obstructed or impaired the driver's view of the area around the deceased.  At the moment of impact, the body of the deceased was mostly obstructed by the dashboard of the Bus; the driver could observe the top of the deceased's head through the windscreen.  Regarding the obstruction caused by the offside front structural column of the Bus, the driver could have alleviated it by tilting his head or body sideway at 3 seconds to 1 second before impact.

Mitigation & Sentence

10.  The defendant is 57 and has a clear record.  He obtained his full driving licence in 1987 and has a clear traffic record as well.  Defence counsel Mr. Lam informed me that the defendant is married with no children.  He joined KMB in 1999 as a bus captain and retired early in June 2023.  They now rely on his wife's income and their savings.

11.  In mitigation, Mr. Lam submitted that the defendant began to seek psychiatric treatment about 1 month after the accident and was diagnosed with Post-traumatic Stress Disorder.  He suffers from insomnia, depressive moods, helplessness, guilty feelings and even had suicidal thoughts.  At the same time, the defendant is diagnosed with chronic obstructive pulmonary disease, reducing his pulmonary function to 50%.  Mr. Lam also submitted that the defendant has driven the 89X bus route for 5.5 years.  He had his day off the day before the accident.  He started his shift at 3:00 p.m. on 15 April 2023 driving from Shatin to Kwun Tong.  The accident took place during the 1^st trip of his shift.

12.  To the victim(s)  and their families, a traffic accident which involves fatalities or serious personal injuries must be one of the most tragic events which could happen to them.  It saddens me each time when I need to deal with a case in which someone has lost his/her life or has been seriously injured as a result of a traffic accident.

13.  I have viewed the footage of the Bus's dash cam numerous times.  The duration of the accident was a few seconds only.  But in those few seconds, the deceased lost his life.  That is the reason why the court must instil into the minds of the general public that driving (whether in a professional or recreational capacity)  is a privilege ‒ a privilege with great responsibilities attached.  It is a message which cannot be stressed enough.

14.  In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just[5].  I must also consider the hardship caused to the deceased's family as a result of his death as well as their grievances and resentment[6].

15.  The courts have repeatedly emphasized the importance of deterrence when sentencing in cases related to dangerous driving.  I have reminded myself of the sentencing principles[7] set out by the Court of Appeal

in SJ v Poon Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(4)  "While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor. It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence…"

16.  In HKSAR v Lei Tin Seng [2011] 1 HKLRD 341, Yeung JA (as he then was)  held :-

"17. This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

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19. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

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22. This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment."

17.  I accept Mr. Lam's submission that no aggravating features (such as speeding, running a red light, drink driving or disobeying any traffic signs)  existed in the present case.  On the other hand, I am puzzled by the fact that the defendant had failed to notice the presence of the deceased in a timely fashion.  I do not for one moment suggest in the slightest degree that the defendant had deliberately driven into the deceased, but how could he have missed the deceased?  I understand the Bus's dash cam footage does not represent accurately the defendant's view in the driver's seat.  Be that as it may, according to the footage, the deceased became visible at 15:26:30 the latest (i.e. about 4 seconds before impact).  Regrettably, the defendant committed a fatal oversight.

18.  Although the deceased might have exposed himself to some degree of danger by jaywalking and not paying attention to the vehicular traffic on his right side[8], his life was vulnerable if hit by an oncoming car.  It may not seem fair, but it is a fact of life that drivers of motor vehicles are expected to carry a heavier burden in most situations when pedestrians, cyclists or motorcyclists are involved.  The bigger and heavier a vehicle, the more lethal it becomes. 

19.  In my view, it was not difficult at all for the defendant to have noticed the deceased's presence as the Bus was turning right onto Mut Wah Street.  I must ask once again "How could he have missed him?"  When determining the starting point, I have borne in mind that the defendant is a law-abiding citizen and has an impeccable driving record.  I am also aware of his current health conditions.  I consider the defendant's driving manner and attitude falling in the intermediate culpability category on the Cooksley's scale[9].  Hence, I adopt a starting point of 24 months' imprisonment.  With the timely guilty plea, the sentence becomes 16 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 16 months' imprisonment.

20.  It is not an easy task to send someone like the defendant, who has never lost his freedom, to prison.  I have considered long and hard what the appropriate length of imprisonment should be.  I understand the traumatic effect of a prison term would have on the defendant and people who care about him.  The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

21.  In addition to imprisonment, I make a disqualification order for a period of 5 years[10] (the disqualification period will start to run from the date of sentencing[11]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[12].  In my view, it is unnecessary to order him to re-take his driving licence test.