HKSAR v. LAW KONG YIN

DCCC 680/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 680 OF 2016

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Reasons for Sentence

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1.  The defendant in this case has pleaded guilty to four charges. They are causing death by dangerous driving; after that accident, failing to stop and report that accident, which is two separate charges; and finally, failing to display the standard registration mark. The most serious offence is obviously the first offence that I have referred to.

2.  The defendant has agreed the facts of all these four offences.  In very brief summary, it shows that the accident occurred at a pedestrian crossing, where the victim was killed.  Dealing with that in more detail, the pedestrian crossing is in Lung Yeuk Tau, Fanling, in the New Territories, and it crosses a four-lane two-way carriageway with a concrete divider separating the traffic for the north and south-bound directions.  The pedestrian crossing in question in this case is controlled by traffic lights, with a safety island between the directions.

3.  The accident occurred in the evening.  The weather was fine, traffic volume was moderate, and the area is well lit by street lights.  The offence occurred on 11 April 2016.

4.  The deceased was a 77-year-old male, and he was walking from the left side of the north-bound Sha Tau Kok Road towards the safety island in the middle of the pedestrian crossing.  The facts show the pedestrian lights were flashing green when the deceased stepped onto the pedestrian crossing, and then turned red, and the lights controlling the traffic in the defendant's direction would turn green.  The deceased reached between the first and second north-bound lanes, looked to his right, and increased his walking speed towards the safety island.

5.  At that point, the defendant apparently braked. However, when the deceased reached the middle of the second north-bound lane, the right front of the vehicle driven by the defendant collided with the deceased.  The impact with the victim caused the deceased to be knocked forward towards the concrete divider, where he was subsequently found.  The defendant's vehicle slowed down but did not stop after the accident, and a fragment of the licence plate from the defendant's vehicle was seized at the location.

6.  The accident occurred at 8 o'clock in the evening.  The defendant in fact surrendered himself at around 11 o'clock that evening.  He said he had felt confused and conflicted, and did not stop the vehicle after the collision.  The vehicle in question was his.  The lacerations on his face and neck were caused by a broken windshield which had shattered during the accident.

7.  In a subsequent caution on arrest, the defendant admitted he had been driving the vehicle at the time when it collided with the deceased at the pedestrian crossing.  He had subsequently returned home to take a shower and treat the wounds that he had received in the accident.

8.  Skid marks were found at the location.  Expert opinion was that the vehicle the defendant drove was travelling at 66 kilometres per hour with a difference of plus or minus 7 kilometres variance, allowing for error in calculation.  The speed for the area was 50 kilometres per hour.  Taking the position most favourable to the defendant would mean his vehicle was travelling some 9 kilometres per hour over the speed limit, and police investigation revealed the defendant could have had a clear, unobstructed view of the material pedestrian crossing.

9.  The prosecution case against the defendant on dangerous driving was failure to keep a proper lookout, he took an unnecessary and avoidable risk in his driving, and also that the speed the defendant travelled at would have been too high for the conditions, although I do not believe it could be said it was excessive.

10.  As far as the defendant's personal circumstances are concerned, he is 36 years old.  He has some criminal convictions which have little relevance to this offence.  He has been to drug addiction treatment centre as recently as 2012 for possession of dangerous drugs.

11.  As far as his driving record is concerned, again, no similar convictions and no convictions for offences such as careless driving. There are some convictions for driving at excessive speed.  Again, I do not think this is relevant to sentence in this matter.

12.  I have obtained a report on the defendant's personal background.  He is a married man, with two daughters, aged 14 and 10. I am satisfied from the report that the arrangements for the children while the defendant is incarcerated are satisfactory.

13.  The defendant, in the report, is said to have gained insight into his problems, and is said to be a responsible husband and father at this stage after release from drug addiction treatment centre in 2012.  The family plead for leniency to be shown to the defendant and for an early discharge from custody.

14.  Of course, the first offence which I am primarily concerned with here is a serious offence and has been dealt with by authority in Hong Kong.  A number of factors are relevant for consideration.  I have considered cases such as Poon Wing Kei and Au Yeung Kwong Kin, which set out the factors that the court should consider in determining sentence for these offences.

15.  This offence has one particular serious aggravating feature, and that is the running over of a person at a pedestrian crossing, and that can be described as a serious aggravating factor and was considered in a review case, CAAR 2/2009.

16.  Of course, when sentencing in cases such as this, the culpability of the defendant has been said to be a primary factor the court must consider, and I must consider that in line with the serious aggravating factor of this death occurring at a pedestrian crossing.

17.  My assessment of the defendant's driving is it showed again a lack of proper lookout and too high a speed for the prevailing conditions.  The defendant took an unnecessary and avoidable risk.  I must also consider that on the evidence agreed by the defendant the deceased must be seen to be partly responsible for the accident as well.  That is a mitigating factor.

18.  I note that on what I consider to be a more serious set of circumstances that the Court of Appeal in review 2/2009 took a starting point for sentence of 24 months' imprisonment.  I consider the defendant's culpability in this case partly because of his speed and the part responsibility of the victim of the accident is less than in that review case.

19.  My sentencing will be as follows.  On the 1st charge, I consider the starting point for sentence should be one of 21 months' imprisonment.  The defendant is entitled to a one-third discount from that sentence, so on Charge 1, there will be a sentence of 14 months' imprisonment.  The defendant will be disqualified from driving for 5 years.  That is a compulsory disqualification.  The defendant must also take and complete a driving improvement course within 3 months of the expiry of the period of disqualification.

20.  For the second and third offences, I take into account the defendant's failure to stop and to report that accident.  These are serious offences in their own right.  On each of those offences I will take a starting point of 3 months' imprisonment, and reduce that to 2 months' imprisonment for the defendant's plea of guilty.

21.  Having regard to the overall totality, I shall order that 1 month of those sentences be served consecutively to the existing sentence, and the balance concurrently.

22.  The fourth offence to which the defendant has pleaded guilty is only punishable by a fine.  I shall impose a fine of $500 on the defendant.

(Discussion re payment of fine)

23.  I will order that to be paid forthwith.

(Discussion re clarification of sentence)

24.  The total sentence is one of 15 months' imprisonment; disqualification for 5 years.  My understanding - I do not think it is part of my order - is it will commence today.  The defendant must, of course, take and complete his driving improvement course within 3 months of the expiry of that period; and the fine is payable forthwith.