HKSAR v. Chan Yuet Kwong

DCCC 5/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 5 OF 2016

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REASONS FOR SENTENCE

The defendant faces 1 charge of "Causing death by dangerous driving" (Charge 1); 1 charge of "Using a motor vehicle without third party insurance" (Charge 2); and 1 charge of "Using a motor vehicle fitted with a pneumatic tyre that has its portion of the ply or cord structure exposed" (Charge 3). He pleaded guilty to Charges 2 and 3. In respect of Charge 1, the defendant pleaded guilty to "Careless Driving". The prosecution accepted his guilty plea to a lesser charge.

Summary of Facts

2.Choi Hung Road is a 2-way carriageway with 2 lanes for each direction.  Outside Rhythm Garden, there is a pedestrian crossing (controlled by a pedestrian traffic light) for getting across Choi Hung Road ("the Pedestrian Crossing").  The speed limit of the relevant road segment was 50 km/h.  At the time of the accident, the weather was drizzling and the road surface was wet.  The traffic flow was light; lighting was adequate. 

Charge 1

3.About 5:10 a.m. on 23 June 2015, the defendant was driving a private car (RC 5493) along the 2^nd lane of Choi Hung Road westbound.  Madam YIP (aged 59, "the deceased") was crossing Choi Hung Road at the Pedestrian Crossing (from the nearside pavement to the centre island).  She was holding a black umbrella.  At the Pedestrian Crossing, the defendant's car collided with the deceased.  The defendant's car did not stop until it went beyond the location at which the deceased was lying on the ground.

4.A taxi driver travelling in the opposite lane witnessed the accident.  At the time of impact, the traffic light controlling the vehicular traffic of Choi Hung Road westbound was green.  The deceased was crossing Choi Hung Road against a red pedestrian traffic light.  She was the only person crossing the road at that time.  There was no honking or braking sound at the material time.

5.As a result of the accident, the deceased sustained serious injuries.  She was certified dead at 5:33 a.m. on the same day.  Her cause of death was multiple injuries.

6.A Government Forensic Scientist examined the CCTV footage of Rhythm Garden.  The defendant's car was found travelling at an average speed of 66±7 km/h when it knocked down the deceased.

7.The Police conducted a line of vision test.  It was found that a person driving along Choi Hung Road westbound would have a line of vision of 65 metres.

8.The prosecution alleges and the defendant admits that he was speeding at the material time, and had failed to keep a proper lookout of the presence of the deceased.

Charge 2

9.Zurich Insurance confirmed that the third party insurance policy of the defendant's car had expired on 5 March 2015.  The traffic accident took place on 23 June 2015 and is thus not covered.

10.Under caution, the defendant admitted that his girlfriend was the owner of RC 5493, and he was the only person who drove the car.  He was responsible for the maintenance of the car as well.  In February, the defendant had received an email from the insurance company reminding him to renew the policy.  He had prepared the documents for renewal and expected his girlfriend to arrange for payment.  After the accident, he discovered that the policy was not renewed.

Charge 3

11.A Motor Vehicle Examiner examined the defendant's car and found its offside front tyre worn, with the internal cord structure exposed.

Mitigation & Sentence

12.The defendant is 43 years old.  He has 1 conviction record, which is "Drink Driving".  He has been licensed to drive since 1997 (at the age of 24).  For traffic records, he has had 16 fixed penalty tickets (mainly "Speeding"); 1 conviction of "Careless Driving" and 1 conviction of "Failing to stop after accident".

13.Defence counsel Mr. NG informed me that the defendant has been cohabiting with his girlfriend for several years.  His girlfriend has a son from her previous relationship.  The defendant is a Technical Officer of the Drainage Services Department earning $37,000 per month.  He has been serving the Government for 17 years and received positive comments from his superior.

14.In mitigation, Mr. NG submitted that on the day of the accident, the defendant was delivering something to someone on behalf of his girlfriend. Right before the accident, the defendant entered a 50 km/h zone from a 70 km/h zone.  Based on the Forensic Scientist's report, the accident took place within a second.  Mr. NG further submitted that the defendant had a green light; and the deceased was dashing across the Pedestrian Crossing.  The defendant was simply unable to respond. 

15.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.

16.Prosecuting solicitor Ms. CHAN accepted that the accident took place on the spur of the moment.  But within this second or 2, a traffic accident occurred and took the deceased'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.

17.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 in terms of his driving manner.  He had a green light, but he was speeding.  With the benefit of hindsight, the prosecution says he should have slowed down and kept a proper lookout of the presence of the deceased.  It is true.  A driver should always proceed with caution when approaching any type of pedestrian crossings.

18.In SJ v LAM Siu Tong [2009] 5 HKLRD 601, the Court of Appeal held "It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious : it is highly likely that people will be crossing the road there, whatever the time of day or night...[1]  In SJ v WONG Wai Hung [2011] 2 HKC 224, Tang Ag. CJHC commented that "we must drive home the message to drivers that the court takes a very serious view of accidents on pedestrian crossings." [2]

19.On the other hand, it is clear from the Summary of Facts that the deceased disobeyed a pedestrian traffic light.  There is no basis for me to speculate and I should not speculate if the accident could have been avoided had the defendant not been speeding and approached the Pedestrian Crossing with caution.  At present, the law does not require a driver to be able to stop for a pedestrian under any circumstances.

20.In relation to Charge 2, owing to his oversight, the defendant has deprived the deceased's family of adequate financial protection.

21.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[3].  I must also consider the hardship caused to the deceased's family as a result of her death as well as their grievances and resentment[4].

22.The defendant's 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 200 hours of Community Service each for Charges 1 and 2.

23.In addition to a Community Service Order, I make a disqualification order for a period of 12 months for Charge 2.  For Charge 1, I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[5].

24.For Charge 3, there is no evidence before me that the defective front tyre had caused or contributed to the seriousness of the accident.  I impose a fine in the sum of $2,000[6].