HKSAR v. LAU YUK PONG

DCCC 325/2020

[2020] HKDC 699

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 325 OF 2020

____________

____________

REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Causing death by dangerous driving". He knocked down a female pedestrian (aged 68) at a crossing when he drove a stationary medium goods vehicle forward after the traffic light turned green.

Summary of Facts

2.  The accident took place near the junction of Yen Chow Street and Cheung Sha Wan Road in Sham Shui Po around 11:40 a.m. on 30 September 2019.  The location was a pedestrian crossing controlled by both pedestrian and vehicular traffic lights ("the Crossing").

3.  The defendant was the driver of a medium goods vehicle TS4226 ("the Truck").  He obeyed a red light regulating the vehicular traffic and stopped the Truck at the Crossing in the forefront position in the 3^rd lane of Yen Chow Street.  At the same time, Madam Fu (the Deceased) was walking across Yen Chow Street from the nearside pavement via the Crossing.  When the vehicular traffic light turned green, the defendant drove the Truck forward and knocked down the Deceased.

4.  The Deceased was certified dead at 12:19 p.m. on the same day.  The medical cause of death was multiple injuries. 

Admissions

5.  At the scene, the defendant told the Police, inter alia, that when the vehicular traffic light turned green, he drove the Truck forward and felt having rolled over something.  He checked the rear view mirror and saw the Deceased lying on the ground.  He claimed that he had not seen the Deceased before the incident.

6.  In his video recorded interview, the defendant claimed that when the vehicular traffic light turned green, he saw no one at the Crossing.  Hence, he drove the Truck forward at the speed of about 10 km/hour. When he drove past the Crossing, he felt a bounce in the rear offside wheel.  He then saw the Deceased lying on the ground through the offside side mirror.  The defendant admitted that when he drove the Truck forward, he did not focus on the nearside pavement of Yen Chow Street because it was far away from him.  He knew that there might be a blind spot at the front nearside of the Truck; a fish eye mirror was thus affixed in front of the windscreen to assist him.  He admitted that he might not have paid attention to the fish eye mirror when he drove the Truck forward.

Accident Investigation

7.  A forensic scientist, Dr. Poon Ka-chung, carried out accident reconstruction.  He concluded that had the defendant checked the traffic condition ahead through the windscreen and/or the fish eye mirror, he would have been able to see the Deceased who appeared right in front of the Truck for about 3 seconds before he drove the Truck forward.

8.  The prosecution alleges and the defendant admits that he has failed to keep a proper lookout for the traffic condition at the Crossing and knocked down the Deceased who had walked across 2 lanes from the nearside pavement in at least 25 seconds.

Mitigation & Sentence

9.  The defendant is 50 and has a clear record.  He obtained his full driving licence in 1988 and has received only 3 fixed penalty tickets in 2013, 2018 and 2019 respectively.  Defence counsel Mr. Mason informed me that the defendant is married with 3 children (aged 24, 22 and 13).  He currently works in a warehouse earning $15,000 per month. His wife and their 13-year-old son depend on the defendant's income.

10.  In mitigation, Mr. Mason submitted that almost every driver has at some point neglected to check his/her blind spot.  Ever since the accident, the defendant has developed a fear in driving.  He gave instructions to counsel to revoke his bail on the last court attendance and has been remanded in jail custody since early July 2020.  Mr. Mason accepted that the defendant committed a momentary but inexcusable mistake.  He submitted that the defendant's mistake falls into the lower end of the Cooksley's scale.  Mr. Mason also mentioned the height and walking posture of the Deceased, which could have made it difficult for the defendant to notice her.

11.  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.

12.  Based on the Summary of Facts, the duration of the accident must have been a few seconds only.  But in those few seconds, the Deceased lost her 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.

13.  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[1].  I must also consider the hardship caused to the Deceased's family as a result of her death as well as their grievances and resentment[2].

14.  The courts have repeatedly emphasized the importance of a deterrent effect when sentencing in cases involving dangerous driving.  I have reminded myself of the sentencing principles[3] 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…"

15.  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.

---

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.

---

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.

16.  When determining the starting point, I treat the defendant as a law-abiding citizen and having a good driving record.  The accident in this case is an unusual one.  Both the Deceased and the defendant were in compliance with the respective traffic lights.  The accident occurred because the defendant had failed to notice the Deceased's presence at the Crossing right before he started to drive forward. He had a duty to check his fish eye mirror; his failure to do so cost the life of a pedestrian.

17.  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 him and his family.  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.

18.  In the present case, the Deceased bore no responsibility for her physique or physical appearance.  All pedestrians, especially those at a legitimate crossing, are to be noticed by drivers rather than making themselves noticeable.  Even if the defendant did not paid attention to the pedestrians walking across Yen Chow Street whilst he waited for the green light, I believe the accident could have been avoided had he checked his fish eye mirror before driving the Truck forward.  He made a momentary yet fatal mistake.  I consider his mistake falling within the least culpability category on the Cooksley's scale[4].

19.  Having considered all relevant factors, I adopt a starting point of 15 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 10 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 10 months' imprisonment.

20.  In addition to imprisonment, I make a disqualification order for a period of 5 years[5] (the disqualification period will start to run from the date of sentencing[6]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[7].  In my view, it is unnecessary to order him to re-take his driving licence test.