HKSAR v. BELTRAN ARIEL AYSON

DCCC 851/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 851 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.

2.  The defendant is a domestic helper contracted as a driver.  He is from the Philippines.  At the time of the offence, the defendant was working for a family living on Fifth Street, Hong Lok Yuen, Tai Po, New Territories.  He had been employed by that family since 2014.

3.  The date of the accident was 4 May 2015, at about 5 pm in the afternoon.  Despite all the houses on Fifth Street in Hong Lok Yuen having garages, many vehicles park on the street, often half on the road, half on the pavement.  This is a common scenario in Hong Lok Yuen. Here, Fifth Street is a horseshoe‑shaped road, which makes such parking practice an inherent danger to other road users and pedestrians.

4.  On that day, outside houses 7 and 9 on Fifth Street, both houses being on the downward slope of the street, there were renovations on the pavement.  There were electrical cable renovations which required the pavement to be dug up.  There are photographs taken by PC9790 which show clearly the works on the pavement and the accident scene.  The works and the pavement had been blocked off by barriers by the workers.  Pedestrians had to walk on the road outside houses 7 and 9.

5.  The deceased, a gentleman aged 43 years old, was a worker at these two small sites on the pavement.  One of his jobs was to move debris pavement from outside house 9 to outside house 7.  The debris from drilling the pavement was stored outside house 7.

6.  Just before the accident occurred on 4 May, the deceased was seen by his colleagues standing by the barriers erected outside house 7.  Those colleagues were working outside house 9. They then heard a bang, and turned to see the deceased lying on the pavement between houses 7 and 9.  His colleagues did not see the defendant’s vehicle hit the deceased.  Just after that, the defendant’s vehicle drove into the barriers of house 7, he said out of shock.

7.  Sadly, the deceased, as a result of the accident, died from a traumatic head injury.

8.  The defendant explained to the police that he had been in his lane going up the horseshoe-shaped road, taking his employer’s children home from school.  He was travelling at about 10 kilometres per hour.  There are many speed bumps on the roads in Hong Lok Yuen.  On the upslope, he explained that there were vehicles parked at the side of the road. He had to steer his vehicle more towards the middle of the road.

9.  He saw the deceased as he drove up before he drove out of his lane to pass the parked vehicles.  The defendant then explained that he had to look ahead, as he was concerned that vehicles could come around the bend, the downward slope, towards his vehicle.  His attention was focused on the road ahead.  He then suddenly heard the sound of a collision.  He realised he had hit a pedestrian, and out of shock, his vehicle moved into the other lane, colliding with the barriers outside house 7 before coming to a stop.  He told the police all of the above details in a record of interview under caution.

10.  The defendant has a clear record in Hong Kong. He has one speeding ticket dating back to 2012.  The defendant has had a Hong Kong driving licence since 2008.

11.  I have been told in mitigation the defendant is 36 years old, married, a father of two children, a 14‑year‑old and a 6‑year‑old, both students, who are in the Philippines with their mother.  His wife works part-time, but financially, his family and his own mother rely on him.

12.  The defendant was earning $11,000 a month as a driver, and lost this job after the accident.  He has been in Hong Kong since the accident, awaiting trial, and pleaded guilty on the first day of trial.

13.  His best mitigation is his plea of guilty.

14.  It is absolutely tragic that the deceased died as a result of his injuries, and that is something the defendant will have to live with for the rest of his life.

15.  Mr Ching has said all he can on behalf of the defendant in mitigation.  Mr Ching has referred me to two authorities, HKSAR v Poon Wing Kei [2007] 1 HKLRD 660.  For the purposes of sentencing, that authority stresses that the culpability of the defendant is a dominant factor where sentencing is concerned.  I am sure the defendant did not intend to cause death, and I am sure his remorse is genuine.

16.  In this case, looking at the facts, it is clear the defendant failed to keep a proper lookout and concentrated on the road ahead without taking stock of a pedestrian near his vehicle.  His manner of driving, though dangerous, was at the lower end of the spectrum of seriousness.  There are no aggravating factors that exist here for me to take into account when considering the appropriate starting point.

17.  Mr Ching has also referred me to the authority of HKSAR v Lam Ying Yu CACC 320/2012.  In that case, the defendant did not stop at a stop sign in Happy Valley, hitting a taxi which had the right of way, which in turn hit three workers on the road, and unfortunately killing one of the three workers and injuring the other two.

18.  In my view, the facts of that case are more serious than the facts in this case, and in that authority, the Court of Appeal allowed the appeal to the extent that they considered an 18‑month starting point appropriate for those facts.

19.  Defendant, please stand up.  I have considered the manner of driving, the facts of this case, the scenario where the accident took place, the defendant’s explanation, the defendant’s plea of guilty, and mitigation put forward.  I have also taken into account the two authorities cited and the Court of Appeal’s decision in Lam Ying Yu.

20.  Having considered all those factors, I will take a starting point of 15 months’ imprisonment. 

21.  You have pleaded guilty.  You are entitled to a discount of one-third for your plea.

22.  After that discount is applied, for this offence you are sentenced to 10 months’ imprisonment.

COURT: Do you understand?

DEFENDANT: Yes.

23.  You will also be disqualified for a period of 2 years from driving any class of vehicle in Hong Kong.  That period of disqualification starts today.

24.  The defendant, within the last 3 months of the period of disqualification, must attend a driving improvement course in Hong Kong.