HKSAR v. Lam Hon Sun

DCCC 833/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 833 OF 2015

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REASONS FOR SENTENCE

1.The defendant faces a charge of "Causing death by dangerous driving". He pleaded guilty to "Careless driving". The prosecution accepted his guilty plea to a lesser charge.

Summary of Facts

Background

2.Wang Hoi Road is a 2-lane undivided carriageway; one lane being northbound, and the other, southbound.  Wang Yuen Street is also a 2-lane undivided carriageway; one lane for eastbound, and the other, westbound.

3.Wang Hoi Road is connected to Wang Yuen Street in the form of a T-junction.  The southbound traffic of Wang Hoi Road can turn right at the T-junction onto the westbound lane of Wang Yuen Street.  The eastbound traffic of Wang Yuen Street can turn left at the T-junction onto the northbound lane of Wang Hoi Road.  A segment of the T-junction (namely the northbound lane portion of Wang Hoi Road) is covered by yellow grid marking[1].  No traffic lights were planted at the T-junction to control the vehicular traffic.

4.There are gaps in the pavement railings on both sides of Wang Hoi Road (right at the northernmost edge of the yellow grid at the T-junction).  Through those railing gaps, pedestrians could cross Wang Hoi Road near the T-junction.

5.About 11:40 a.m on 12 March 2015, a traffic accident occurred near the T-junction (on the northbound lane of Wang Hoi Road). A female pedestrian ("the Victim") crossing Wang Hoi Road (from west to east) through the railing gaps was knocked down by a lorry KR 2229 (V1) driven by the defendant.  The Victim sustained severe multiple injuries and passed away on 20 March 2015.

6.The accident was captured by the car camera installed in V1.  The accident (from beginning to end) took place in about 7 seconds.  The video clip obtained from V1's car camera pretty much tells the whole story.

The Accident

7.Shortly before the accident, the defendant was driving V1 on the northbound lane of Wang Hoi Road.  At 11:39:45 hours, a lorry partially painted in orange (GX 2823) was approaching the T-junction on the southbound lane of Wang Hoi Road[2]. Its right-turning signal was blinking.  The distance between V1 and GX 2823 was about 51 metres.

8.At 11:39:47 hours, GX 2823 commenced its right turn onto the westbound lane of Wang Yuen Street at the T-junction.  Its offside front corner was just crossing the central dividing line of Wang Hoi Road[3].  The distance between V1 and GX 2823 was about 26 metres; whereas the distance between V1 and the northernmost edge of the yellow grid was about 40 metres.  At the same time, the Victim was seen (in V1's car camera) walking along the north side pavement of Wang Yuen Street eastbound towards the railing gap on the west side pavement of Wang Hoi Road (near the northernmost edge of the yellow rid).

9.At 11:39:49 hours, V1 almost reached the southernmost edge of the yellow grid; whereas GX 2823 was still making its right turn and diagonally occupying the portion of the yellow grid ahead of V1[4].  At the same time, the Victim just reached the railing gap on the west side pavement of Wang Hoi Road. The defendant's view of the Victim was apparently blocked by GX 2823.

10.At 11:39:50 hours, V1 reached the middle of the yellow grid (about 14 metres away from its northernmost edge).  The nearside of GX 2823 was still in front of V1, occupying most of the northbound lane of Wang Hoi Road[5]. Once GX 2823 completed its right turn, the road segment in front of V1 was clear of vehicles.  At the same time, the Victim was stepping off the west side pavement of Wang Hoi Road and began crossing the road in a rather quick pace[6].

11.At 11:39:51 hours, the Victim, looking at her left, was walking in a rather quick pace across Wang Hoi Road reaching almost the middle of the northbound lane[7]. At 11:39:52 hours, the Victim reached the middle of the northbound lane and turned her face towards V1[8]. She then disappeared from the camera and there was a vibration of the camera[9].  The defendant swerved to the right and V1 continued to dash diagonally towards the southbound lane.  It came to a halt after about 3 seconds, stopping in front of a private car on the southbound lane[10].

12.The prosecution alleges and the defendant admits that he was driving V1 carelessly in that he failed to keep a proper distance from the right-turning GX 2823, so after GX 2823 had completed its turn, he did not have sufficient time to pay attention to the road traffic condition, thereby causing V1 to knock down the Victim.

Mitigation & Sentence

13.The defendant is 37 years old.  He has 6 conviction records, which included 3 offences of "Driving whilst disqualified".  He has been licensed to drive since 1998 (at the age of 19).  For traffic records, he has had several fixed penalty tickets and 1 conviction of "Careless Driving".

14.Defence counsel Mr. HO informed me that despite the accident, the defendant is still working for same employer earning $10,000 per month.  The defendant has been separated from his wife for 2 years.  They have a daughter (aged 11) and she resides with the defendant.

15.In mitigation, Mr. HO submitted that upon seeing the Victim, the defendant honked and applied the brakes.  He tried to swerve V1 to the right to avoid hitting the Victim.  Mr. HO also submitted that the accident location was not a proper pedestrian crossing.  Furthermore, when she began crossing the road, the Victim was not looking at her right (i.e. the on-coming traffic).  The defendant's mother (aged 66) suffers from depression and needs to attend regular psychiatric consultations.  He needs to look after his mother.  Mr. HO submitted that neither a disqualification order nor a suspended sentence is required in the present case.

16.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.

17.I have viewed the video footage of the accident captured by V1's car camera more than a few times.  I note that the time gap between the moment when the Victim was clearly captured by the camera and the moment of impact was only 2 seconds.  But in these 2 seconds, a traffic accident occured and took the Victim's life away.  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.

18.It is perhaps easy to say in retrospect what someone should or should not have done in order to avoid the accident.  In my view, despite the tragic consequences of the accident, the defendant in the present case did not make a serious mistake.  He was not speeding nor did he disobey any traffic signs.  With the benefit of hindsight, the prosecution says he should have maintained a proper distance with the right-turning lorry, so that he could have had more time to observe the road condition ahead of him.

19.At the same time, it is clear from the video footage that when crossing Wang Hoi Road, the Victim did not pay attention to the on-coming traffic of the northbound lane (at least she was not looking to her right until the moment of impact).

20.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[11].  I must also consider the hardship caused to the Victim's family as a result of her death as well as their grievances and resentment[12].

21.The defendant's criminal and traffic records are below satisfactory.  But I have reminded myself that he has already been punished for his past misconduct.  His present sentence must commensurate with his wrongful conduct in the present case.  Comments in his Community Service Order Report are favourable.  After careful consideration, I take the view that a Community Service Order is the appropriate punishment in this case.

[Requirements of Community Service Order explained. The defendant understood and is willing to comply.]

I sentence the defendant to 150 hours of Community Service.

22.In addition to a Community Service Order, I make a disqualification order for a period of 6 months[13].  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[14].