HKSAR v. LAM WAI KIT

 DCCC280/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 280 OF 2009

----------------------

----------------------

-------------------------------

Reasons for Sentence

-------------------------------

1.  The defendant is convicted on his own plea of a charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374.

2.  When the case came before me on 9 November 2009, the charge was one of dangerous driving causing death. No plea was taken and the case was adjourned to 10 November as a result of a successful joint application for adjournment by the prosecution and the defence.

3.  On 10 November, the charge was amended to its present form and the defendant pleaded guilty to it and admitted the following facts. At all material times, Hoi Wang Road (“the Road”) was made up of two lanes of traffic travelling in opposite directions. The Park Avenue was on one side whilst the Hoi Fu Court was on the other side of the Road. There was neither pedestrian crossing controlled by traffic lights nor zebra crossing on the Road.

4.  The only crossing for pedestrians on the Road lied between a pair of safety islands erected near the entrance of the Park Avenue. The crossing was narrow on either side of the crossing. The words “LOOK RIGHT” and “LOOK LEFT” were painted across the crossing, reminding the pedestrians to watch out for the traffic coming from either side of the Road.

5.  At about 9.35 am on 20 October 2008, the defendant was driving a medium goods vehicle with registration number LE 9758 southward towards the direction of Yau Ma Tei. When LE 9758 was heading towards the crossing, all of a sudden, Mr Kong Hon-man, who was aged 71, the victim, walked out hastily from the pavement at the side of Hoi Fu Court with a view to cross the Road when LE 9758 was heading towards the victim. LE 9758 bumped the victim at the left front of the vehicle, causing the victim to bounce for a few metres before he fell onto the ground.

6.  Soon after the collision, Dr Lau Wing-kong, a private medical practitioner, brought his nurse to attend the victim for resuscitation. Dr Lau found the victim unconscious and the victim was delivered to the Queen Elizabeth Hospital forthwith. On treatment and examination, the victim was diagnosed with close fracture of skull, severe head injuries and rib fractures. He was certified dead about 23 hours after he had been admitted to the hospital. The cause of death was subdural haemorrhage, subarachnold haemorrhage and brain contusion.

7.  The collision was observed by a Miss Tai Yan-yi. Miss Tai was standing in the middle of the Road at a distance of 40 metres from the victim. She saw the victim stepping out from the pavement next to the railing and almost immediately after the victim had stepped three to four steps forward, he stepped back slightly. At this moment, LE 9758 collided with the victim at its left front and the victim was bumped forward for a few metres before he fell onto the ground.

8.  The collision was also observed by Mr Chan Ho-yin. Mr Chan was standing behind the victim on the pavement. Mr Chan’s observation was closely similar to that of Miss Tai. He added that the victim was walking slowly out of the pavement when he tried to start crossing the Road.

9.  The weather at the material times was good and the Road was dry.

10.  Mr Chui Chi-kwong, the vehicle examiner of the Transport Department, examined LE 9758 and found that the vehicle had no mechanical defect.

11.  After the collision, the police carried out measurement of LE 9758 and found one pair of skid marks that followed immediately behind the rear wheels of LE 9758. The pair of skid marks was 16.2 metres in length whilst the length of LE 9758 was about 6.8 metres.

12.  Dr Wong Koon-hung, the government chemist, carried out a test to estimate the speed of LE 9758 at the time of the collision in the light of the finding of the pair of skid marks. He estimated that the speed of LE 9758 at the commencement of skidding was 43 kilometres per hour with a tolerance or standard deviation of 10 per cent. In the circumstances, the defendant should have reduced the speed of his vehicle when he approached the crossing.

13.  The defendant had a clear criminal and traffic record. He only had some fixed penalty records recorded against him.

14.  I have the benefit of a written skeleton submission prepared by Miss Cheng and also have the benefit of going through the sketch plan of the scene and the photographs taken by the police after the incident.

15.  Miss Cheng told me in mitigation that the defendant’s nearside view was obstructed by the flowerbed and the plants thereof when he was approaching the spot where the collision took place. The defendant was careless in that he should have further slowed down his vehicle, but he failed to do so. The defendant tried to avoid the collision as soon as he saw the victim. He applied the emergency brake and swerved to the right as we can see from the 16.2 metres skid mark which was towards the offside of the vehicle. Miss Cheng submitted that the degree of carelessness is on the low side and certainly not the worst of its type.

16.  The traffic result of the accident has brought immense stress and worries to the defendant and his family members, and the defendant’s wife has sought help from the Salvation Army’s Sham Shui Po Family Support Networking Team.

17.  I called for a suitability report for community service order before sentence. The probation officer states in the report that the defendant enjoys harmonious relationship with his family members. The defendant’s wife considered the defendant as a family-oriented man having no vice habits and has strong affection towards his son. The defendant’s employer commented that the defendant was diligent and conscientious in work and maintained good relationship with others. The defendant admitted carelessness to the indexed offence as he should have driven at even slower speed. Though he had not been speeding, he was a bit hasty in taking up the other job order.

18.  He is willing to bear responsibility and the consequences. He felt sorry and upset for the accident leading to the loss of a life, and he suffered from sleep problem then. The defendant is willing to make reparation for his wrongdoings and is willing to receive punishment by performing unpaid community service.

19.  The probation officer opines that in view of the defendant’s previous satisfactory work performance and character, remorseful attitude and his crucial role and responsibility for the family, he deserves a chance for a non‑custodial sentence. Given the serious nature of the offence which concerned a fatal accident, the probation officer recommends a community service order of a long duration of 240 hours.

20.  In sentencing the defendant, I have borne in mind the nature of the offence that the defendant was convicted of careless driving as opposed to dangerous driving causing death which the defendant originally faced. I have borne in mind the facts of the case which reveal carelessness on the part of the defendant. He was approaching the safety islands at a time when his nearside view was obstructed. He should have slowed down, but he failed to do so. The accident led to the tragic death of the victim.

21.  The fact that the accident has resulted in the loss of a life is a fact that I have borne in mind, but I should not be overborne by the fact that somebody was killed in the accident. Sentencing is not all about retribution. The sanctity of life cannot be measured in terms of the severity of punishment imposed on those who caused the loss of it.

22.  In sentencing the defendant, I have reminded myself that I am sentencing the defendant for the offence of careless driving and it is the degree of carelessness that matters most in assessing the culpability of the offender. On the facts before me, I am of the view that a community service order of the medium duration, i.e. of 120 hours, together with an order that the defendant shall attend and complete a driving-improvement course within 3 months of the date of the order should adequately reflect the seriousness of the matter. The sentence should be able to bring home the defendant the importance of being a prudent and careful driver at all times when he is driving and make him a better driver.

23.  I am aware that under section 72A(2), when I order the defendant to attend a driving-improvement course in addition to other penalty, i.e. a community service order, the other penalty so imposed may be lighter than it otherwise would be imposed had the order not been made.

24.  For the reasons givens, I sentence the defendant to a community service order for a duration of 120 hours. I also order the defendant to attend and complete a driving-improvement course within 3 months of the date of the order.

25.  Yes, Defendant, you have to do unpaid work in reparation for the crime that you have committed. Yes, Defendant, under the CSO order that I made today, you have to do unpaid work for a total duration of 120 hours in the 12 months to come. Now, if you fail to complete the CSO order in the year to come, you are liable to be brought before me for re‑sentencing. Do you understand?

DEFENDANT: Understand.