HKSAR v. LAM YU HIN

DCCC 693/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.693 OF 2012

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of dangerous driving causing death[1] and one charge of using a motor vehicle without third party insurance[2].

Facts

2.  The defendant was a garage apprentice of Kong Kei Motor Service Centre in Tokwawan. On the morning of 14th January 2012, the owner of a black Porsche with registration mark AK2223 brought his car to the garage for repair.

3.  The vehicle was left with the garage and the defendant was driving the vehicle in the vicinity of the garage at around 4:32pm. When the vehicle was turning left from Yuk Yat Street into Kwei Chow Street, the defendant suddenly lost control of the vehicle. It spun around and knocked down Mr. Yu who was 80 years old and was crossing the road on the 1st lane of Kwei Chow Street at the time.

4.  The vehicle came to a stop on the first lane of Kwei Chow Street in a diagonal position with its front wheels resting on the pavement at a distance of 17.6 meters away from the point of collision. Mr. Yu was knocked forward and laid unconscious on the first lane of Kwei Chow Street.

5.  Mr. Yu unfortunately passed away as a result of multiple injuries suffered in the collision with the defendant’s vehicle.

6.  There are 2 independent eyewitnesses to the incident. PW1 Mr. Cheung and PW2 Ms. Yim were on the pavement at the junction of Kwei Chow Street and Yuk Yat Street respectively. They saw the defendant’s vehicle travelling along the first lane of Yuk Yat Street at a high speed. When the vehicle turned left into Kwei Chow Street, it did not slow down and continued to travel at a high speed. They then saw the vehicle lost control and spun around after turning into Kwei Chow Street. The front of the vehicle hit the above mentioned Mr. Yu who was crossing the road slowly.

7.  At the material time the weather was cloudy, road surface dry and in good condition and the traffic flow was light.

Previous convictions

8.  The defendant has no previous criminal conviction records, although he was fined on 4 previous occasions for speeding by more than 15 km/h but not more than 30 km/h in January 2009, December 2010, April 2011 and lastly in June 2011.

Mitigation

9.  At the request of defence counsel, a Community Service Order report was ordered to be prepared on the defendant. The defendant had been warned by the court that there is virtually no chance that he would escape an immediate custodial sentence. The court is willing to consider the report only at the strong request of counsel and on the basis that the report will disclose the background of the defendant and thus assist the court in sentencing him. As it transpired, Community Service Order was not recommended by the Probation Officer.

10.  The defendant is 23 years old and comes from a grass root family. The rest of the defendant’s background is set out in details in the Community Service Order report and I shall not repeat it here.

11.  Mr. Mak for the defendant submitted that the defendant had been cooperative with the authorities from the very beginning and had decided to plead guilty as soon as was practicable. The defendant is truly remorseful and wanted to compensate the deceased’s family and even to attend Mr. Yu’s funeral.

12.  Mr. Mak’s instructions are that on the day in question, the defendant’s manager asked him to move the vehicle. Meanwhile, police officers nearby were issuing parking tickets to illegally parked vehicles. As it so happened, the defendant had to make a detour before driving the car back to the garage because of road restrictions. The defendant did not take the car out for a spin for fun, he was doing it as part of his work and he was not showing off in a posh car.

13.  When the defendant tried to make the turn where the accident happened, he over-steered his car. When he tried to steer it back, the car just slid along the road, and unfortunately hit the victim who was crossing the road.

14.  Mr. Mak mentioned that the victim was jaywalking at that time.

15.  After the accident, the defendant came out of the car, talked to the victim and rendered assistance to him by calling 999 for an ambulance.

16.  In relation to the 2^nd charge, Mr. Mak submitted that when the car was driven to his garage, the defendant had simply failed to ask about insurance.

Sentence

Charge 1

17.  2 independent witnesses who were on the pavement at the junction where the collision happened saw the defendant’s vehicle travelling along the first lane of Yuk Yat Street at a high speed. They saw that the vehicle did not reduce its speed when it turned left into Kwei Chow Street. They saw the defendant’s vehicle travelling at a high speed and lost control and spun around after turning into Kwei Chow Street, when the front of the vehicle hit the deceased.

18.  It is the defendant’s own admission in the summary of facts that it was raining slightly and that he was turning a corner when he over-steered and lost control of his vehicle. Couple that with the evidence of the independent witnesses, the defendant was driving dangerously in that a competent and careful driver would have lowered his or her speed before entering the corner, given that it is an obvious possibility that there might be something around the corner that would require him or her to slow down. A jaywalking pedestrian in Tokwawan on a Saturday afternoon at around 4:32pm is by no means something totally out of the ordinary.

19.  Having said that, the defendant’s driving at that time was not the worst of its kind. He was not drink driving, he was not involved in a high-speed car race, he was not speeding at a speed far above the speed limit over any prolonged period of time, he was not jumping red lights or cutting lanes at high speed. It would be fair to say that his choice of rounding the corner at a high speed on that particular day at that particular time was a one off lapse of judgment which was dangerous and resulted in the death of a person.

20.  It is also noted that, from the mitigation letters and the fact that his employer is willing to continue to employ the defendant after he had served his sentence, the defendant has all along been a responsible employee.

21.  In the case of Lei Tin Sang CACC 271/2009, the act of dangerous driving being punished was similar to our case in that the appellant had lost control of his light goods vehicle when turning into a corner resulting in one person being killed and 3 others injured. The Court of Appeal found that, from the course of the accident, the resulting casualties and the damage to the anti-bumping railings at the edge of the pavement all showed that the speed of the appellant’s vehicle was ‘extremely high’. Other than that, the Court found that, just as in our present case, there were no other aggravating factors in relation to the dangerous driving.

22.  The court found that a proper starting point was that of 24 months’ imprisonment.

23.  I find that the defendant’s manner of driving in our present case on the fateful day was slightly less serious than that of the applicant in Lei Tin Sang. I find that considering all the circumstances of the case, a proper starting point for charge 1 is that of 21 month’s imprisonment. I will grant the defendant the full one-third discount in recognition of his guilty plea and sentence him to 14 months’ imprisonment.

Disqualification under charge 1

24.  Both Ms. Chan for the prosecution and Mr. Mak for the defendant very helpfully made submissions on what can amount to special reasons under s.36(2) of the Road Traffic Ordinance, as well as s.4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance when considering the period of disqualification.

25.  I find that the defendant has proved on the balance of probabilities that special reasons do exist in the defendant’s case. I agree with the written submission of Mr. Mak and that considerations set out at paragraph 34-105 of Archbold 2012 should be taken into account. I also think that the application of common sense would lead one to the conclusion that 5 years’ disqualification period in the present case might simply be too long.

26.  The defendant drove the vehicle as part of his job and was following the order of his superior. It was not the case that he was taking the car for a spin for fun. The vehicle was in a proper state at the time and nothing was found to be defective upon subsequent inspection. The distance driven by the defendant before the incident was short and there is no evidence to suggest that he was going to drive the car away for a further distance.

27.  I find that viewed together these matters do amount to special reason to not disqualify the defendant for the full 5 year period. I find that a proper period of disqualification under the circumstances is that of 3 and a half years, and I do so order.

28.  Pursuant to s.72A(1A) of the Road Traffic Ordinance, the defendant is ordered to attend and complete a driving improvement course within the last 3 months of the disqualification period.

Charge 2

29.  The maximum sentence for an offence under s.4(1) is that of a fine of $10,000 and imprisonment for 12 months.

30.  Again, taking into consideration that the defendant did not take out the vehicle for a fun spin around the block but was performing his job duty, I find that given the circumstances of the case, I will order that the defendant be fined $5,000. This fine is to be deducted from the defendant’s bail money.

Disqualification under charge 2

31.  According to s.4(2)(a), a person convicted of a charge under s.4(1) shall be disqualified from driving for a period of not less than 12 months but not more than 3 years, unless there are special reasons.

32.  For the same reasons given in relation to disqualification under charge 1, I find that there is a special reason. I however find that notwithstanding the special reason, the defendant should be disqualified for a period of 1 year, to be served concurrently to the disqualification period imposed earlier for charge 1.

[1] Section 36(1) of the Road Traffic Ordinance, Cap.374

[2] Sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272