HKSAR v. LAM TSZ MAN

DCCC 1062/2023

[2024] HKDC 407

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1062 OF 2023

________________________

________________________

REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Causing death by dangerous driving" (Charge 1); a charge of "Failing to stop" (Charge 2); and a charge of "Failing to report" (Charge 3). He was driving a private car on Chi Cheong Road in Sheung Shui. After turning right from Chi Cheong Road onto Lung Sum Avenue, the defendant's car knocked down a woman who was pushing a trolley on the 2^nd lane of Lung Sum Avenue eastbound.

Summary of Facts

2.  The accident occurred around 11:17 p.m. on 14 November 2022 near the junction between Lung Sum Avenue eastbound and Chi Cheong Road in Sheung Shui.

3.  At the time of the accident, the weather was fine with good visibility and sufficient street lighting.  The road surface was dry and in good repairs.  The traffic was moderate and the speed limit was 50 km/h.

4.  Shortly before the accident, Mr. Wong (PW1)  and Madam Lau (the Deceased)  were each pushing a trolley with large objects along Lung Sum Avenue eastbound.  PW1 was walking at the front with the Deceased following him.  Suddenly, a private car 266HV ("the Car"), which was driven by the defendant, turned right from Chi Cheong Road onto Lung Sum Avenue eastbound, knocking down the Deceased from her behind.

5.  Upon hearing a loud collision sound coming from behind, PW1 turned around.  He saw the Deceased lying on the ground and the Car having stopped behind the Deceased near lamppost No.DD0389 on Lung Sum Avenue ("the Scene").  The defendant alighted from the Car and apologized 3 times that he could not see "it".  When PW1 asked the defendant to call the Police, he refused.  The defendant later drove the Car away.

6.  An ambulance arrived at the Scene around 11:26 that evening.  The Deceased was found breathing with pulse but her degree of consciousness was decreasing.  She was sent to the Prince of Wales Hospital at 11:54 in the same evening.

7.  Upon arrival at the hospital, the Deceased had a Glasgow Coma Scale of 3/15 with both pupils dilated and absent papillary light response.  There was also loss of other brainstem reflexes.  The Deceased was intubated.  Computer tomography of the brain showed right acute subdural haematoma, diffuse subarachnoid haemorrhage and displaced linear fracture in the right frontal and parietal skull.  The Deceased was certified of brain death at 6:26 p.m. on 16 November 2022.  An autopsy was performed.  The direct medical cause of death was traumatic brain injury.

Enquiries with witnesses at the Scene

8.  Madam Ye (PW3)  was working at a vegetable stall nearby.  Upon hearing a loud collision sound, PW3 saw the Car having stopped at the Scene.  She also saw the Deceased lying on the ground.  PW3 asked the defendant if he had reported the case to the Police yet, the defendant said there was no need to report and it would be fine just sending the Deceased to a nearby clinic.  He later drove the Car away.

9.  Prior to the accident, Mr. Fung (PW2)  was sitting in the front passenger seat of a private car driven by his girlfriend ("Car 2").  Car 2 was travelling along the 1^st left lane of Lung Sum Avenue.  When Car 2 was about to go past the Car, PW2 saw the Deceased lying on the ground.  PW2 then alighted from Car 2 to see what happened.  The defendant told PW2 that he could not see the Deceased; he was careless and sorry.

10.  PW2 asked the defendant if he had reported the case to the Police.  He said someone at the back was reporting.  PW2 later reported the case to the Police upon learning that no one at the Scene had made a report yet.  As PW2 was calling the Police, the defendant drove the Car away.  The dash camera of Car 2 captured the incident as described by PW2.

11.  Mr. Yeung (PW4)  was driving his taxi along the 1^st left lane of Lung Sum Avenue.  He arrived at the Scene after the accident.  The dash camera of PW4's taxi captured the Car reversing and leaving the Scene.

12.  There are also footage from locations near the Scene which captured the accident.  The happening of the accident was simple and straightforward.

13.  The defendant surrendered to Sheung Shui Police Station at 4:30 p.m. on 15 November 2022 (some 17 hours after the accident). He was arrested for 3 traffic offences.

14.  According to Dr. Tao, a forensic scientist of the Government Laboratory, the driver of the Car could have had an unobstructed view towards the Deceased when it was approaching the junction before Position T-4 (i.e. 4 seconds before impact), albeit there would be momentarily obstruction caused by the offside front structural column when the front of the Car was about 2 metres from Position T-4.  Dr. Tao estimated that prior to impact, the Car was travelling at an average speed of 20 km/h.  If the driver was able to perceive the presence of the Deceased before reaching Position T-2 (i.e. 2 seconds before impact)  and reacted by applying hard braking, the accident could have been avoided.

Mitigation & Sentence

15.  The defendant is 42 and single.  He has 3 conviction records, which included 6 offences; they were primarily violence-related.  In terms of traffic record, he obtained his full driving licence in 2016 and has 8 fixed penalty tickets (4 of which were "Speeding"); 1 conviction of "Careless driving"; and 3 convictions of other offences.  

16.  Defence counsel Mr. Wong informed me that the defendant resides with his girlfriend and her son (aged 9).  He was as a private chauffeur earning about $17,000 per month.  In mitigation, Mr. Wong submitted that at the time of the accident, the defendant was not speeding and there were no other aggravating factors.  The defendant feels extremely remorseful and is willing to face the consequences of his mistake.  Mr. Wong also stressed that the defendant has performed charity work and participated in volunteer activities.

Charge 1

17.  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.

18.  I have viewed the footage captured by the car camera of taxi YA8053 numerous times.  The duration of the accident was about 3 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.

19.  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].

20.  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[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…"

21.  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."

22.  I accept Mr. Wong's submission that it was a dangerous act (be it lawful or not)  for the Deceased and her colleague to push their trolleys with large objects on a vehicular lane. On the other hand, the accident occurred because the defendant had failed to notice the Deceased's presence.  Had the defendant proceeded through the junction with caution (i.e. paying sufficient attention to the surrounding events and people, especially those directly ahead of him), the accident could have been avoided. 

23.  The defendant has been to prison before, but I still 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.

24.  Although the Deceased might have exposed herself to some degree of danger, her life was as vulnerable as any road-crossing pedestrian 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. 

25.  The Car was a typical 7 or 8-seater.  It was not difficult at all for the defendant to have noticed the Deceased's presence as the Car was completing its right turn onto Lung Sum Avenue.  Any reasonable person who has viewed the footage of the accident would have screamed with rage "How could he have missed her?"  Regrettably, the defendant committed a fatal oversight.  Failing to stop after the accident[4] is also an aggravating factor.  I consider the defendant's driving manner and attitude falling at the low end of the intermediate culpability category on the Cooksley's scale[5].  Hence, I adopt a starting point of 22.5 months' imprisonment.  With the timely guilty plea, the sentence becomes 15 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 15 months' imprisonment for Charge 1.

26.  In addition to imprisonment, I make a disqualification order for a period of 5 years[6] (the disqualification period will start to run from the date of sentencing[7]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[8].  In my view, it is unnecessary to order him to re-take his driving licence test.

Charges 2 and 3

27.  The respective maximum sentences for these 2 charges are a fine of $10,000 and imprisonment for 12 months; and a fine of $25,000 and imprisonment for 6 months.

28.  Both failing to stop and failing to report after a traffic accident (especially one which involved personal injuries)  are irresponsible behaviour.  The defendant was asked more than once by passers-by to call the Police, but he did not do so.  Such behaviour was not only irresponsible but also repugnant.  I adopt a starting point of 3 months' imprisonment for each charge.  With the timely guilty plea, I sentence the defendant to 2 month's imprisonment for each charge.

Overall Sentence

29.  I am aware that Charge 2 was counted as an aggravating factor in Charge 1.  Thus, the defendant should not be punished twice.  Bearing in mind the totality principle, I order the sentences for Charges 2 and 3 to run concurrently; but 1 month consecutive to Charge 1, arriving at a total prison term of 16 months for all 3 charges.