HKSAR v. LEE WING CHEONG

DCCC157/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 157 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of dangerous driving causing death.

2.  The facts admitted are as follows.

(i) Che Kung Miu Road in Tai Wai was a divided duel carriageway with two lanes on Mei Tin Road direction. The lanes were separated by broken white traffic lane lines. The speed limit was 50 kilometres per hour. There was a pedestrian crossing with traffic lights near Lamppost CE0170 on Che Kung Miu Road;

(ii) At all material times, the weather was fine and the visibility was clear. The road surface was dry and in good repair. Traffic flow was light.

(iii) At all material times, Hung Fuk-hing (the deceased) was a motor cyclist who was driving a motor bicycle with registration number HX4315 (V1). The defendant was the driver of a public light bus with registration number PD8042 (V2);

(iv) At about 11.09 am on 20 August last year, the defendant was driving V2, with a full load of passengers, along the second lane of Northeast bound Che Kung Miu Road towards Mei Tin Road. The deceased was driving V1 along the same lane in the same direction ahead of V2. When V1 and V2 approached Lamppost CE0170, Che Kung Miu Road, the traffic light of the pedestrian crossing turned amber. V1 and V2 were about two cars spaces apart at that time. V1 turned on the brake light and stopped in front of the pedestrian crossing. However, the defendant did not slow down or stop V2. Meanwhile, the traffic light turned red, V2 then rammed into V1 and V1 was pushed forward for a distance. The deceased was bounced onto the carriageway. The nearside front wheel of V2 hit the deceased’s head before V2 stopped;

(v) The matter was reported to the police and the deceased subsequently died from multiple traumatic injuries. The defendant made a full admission under caution and remind caution. In particular, the defendant admitted that he was aware of the existence of V1 and that he was travelling between 65 kilometres per hour at the time of the accident.

The defendant’s background and mitigation

3.  The defendant is aged 54 and has a clear record, both criminal and traffic.  He has been driving as a PLB driver for about six months prior to the accident.  He is married and lives with his wife and two children.  Both children are still at school.  His younger child has autistic features and attends a special school.  The defendant is a responsible father and husband and actively participates in the care of his autistic child.  

4.  Counsel submitted that the defendant is a responsible father and husband.  He has led an honest life.  Counsel submitted that this is not the worst case of its kind and that the accident only happened because of the defendant’s momentary error of judgment.  The defendant is clearly remorseful and he asked the court to be lenient with the defendant.

Reason for sentence

5.  I have considered the facts of the case, defendant’s background and his mitigation very carefully.  I disagree, that this is merely a momentary error of judgment on the part of the defendant. There was no dispute that there was a pedestrian crossing near the scene of the accident.  The defendant was aware of the existence of V1 all along.  The defendant had a full load of passengers on-board his vehicle.  He was speeding at the time.  The lights at the pedestrian crossing had already turned amber. The deceased stepped on his brake before stopping at the traffic lights. 

6.  In order for the deceased to slow down and stop, he must have to applied his brake for some time before he reached the traffic lights.  Despite that, the defendant continued to drive ahead without slowing down or stopping.  The road was a dual carriageway with two lanes.  There was no evidence that the defendant made any attempt to swerve or avoid the deceased. His behaviour was obviously extremely reckless and the result was wholly obvious.  He was clearly putting his passengers and other road users at risk. 

7.  In Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, the Court of Appeal stated that:

“In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly. Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased. The impact on people’s lives ought to be taken into account when sentencing. It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving.”

In mitigation

8.  Counsel concentrated on the good character of the defendant.  In Secretary for Justice v Lam Siu Tong and Wong Ton Fan, application for reviews no.2 and no.4 of 2009.  The Court of Appeal stated that in such case.

“the court must not overlooked the fact of an innocent life has been taken away as a result of an act or omission that could and should have been avoided. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it.

Although, the appropriate discount should be given for a guilty plea, the courts will not show leniency to any driver who has endangered the lives and safety of other road users.”

9.  In HKSAR v Au Yeung Kwok Kin, (unreported) CACC21/2008, a pre-amendment case, the defendant was sentenced to 3 years after trial.  In that case, it was not clear whether the accused actually knew that the lights were on red.  Even though, he testified to the effect that the lights were on amber. 

10.  After careful consideration, I adopt a starting point of 4½ years, the defendant has pleaded guilty.  I given the full discount for his plea.  The sentence is reduced to 3 years’ imprisonment.

11.  Disqualification of no less than 2 years is mandatory for a first offence unless there are special reasons.  No special reasons have been put forward in respect of disqualification.  I order that the defendant be disqualified from driving any classes of vehicles for 4 years.  He has to attend and complete a driver’s improvement course within three months prior to the expiration of the disqualification, before he can retrieve his licence.