HKSAR v. Lam Shu Tong

DCCC 874/2023

[2024] HKDC 882

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 874 OF 2023

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REASONS FOR SENTENCE

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1.The defendant, Mr Lam, has pleaded guilty to two charges today, firstly, causing death by dangerous driving, contrary to Section 36(1)  of the Road Traffic Ordinance, and secondly, Using a vehicle with a fitting other than in good and serviceable condition, which is a breach of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations.

2.The facts show that the accident occurred around about 6:50 in the morning of 14 February 2023. At the time it was dawn, visibility was good and most vehicles were still driving with their lights on. The defendant himself was driving a taxi up the slope on the Wo Yi Hop Road in the right lane and the Deceased was driving a motorcycle and driving down the downslope in the opposite direction on the opposite carriageway. The accident was very simple. The defendant turned right into Lai Lei Fa Street by cutting across the oncoming traffic, right in front of the oncoming traffic. The Deceased was unable to manouvre out of the way of the defendant’s vehicle and crashed into the defendant’s vehicle as he executed this manouvre, the impact being fatal to the Deceased.

3.The speeds of the vehicles were relatively normal. The taxi was driving between 27 to 39 kilometres per hour and the motorcycle being 28 to 45 kilometres per hour which were well within the speed limit on that particular location.

4.In summary, the defendant admits the following: That he failed to keep a proper lookout, that he failed to maintain a sufficient distance with the motorcycle when he was executing the manouvre and failed to sufficiently slow down before making a right turn and cut across the oncoming traffic. On a later inspection of the vehicles, a defect was found in respect of the defendant’s taxi that made it to be not in a good and serviceable condition, that was a defect in retraction of the driver’s seatbelt which was caused by clipping at the end of the stroke of the seatbelt. That particular condition had no contributory cause towards this accident.

5.As far as the defendant’s background is concerned, he is 67 years old. He has a clear criminal record. He has traffic convictions that appear to be related to his driving of the taxi, two failing to comply with traffic signals and one setting down passengers in a restricted zone. They are not relevant to sentencing today.

6.The defendant’s personal background shows that he has a number of diseases which are relative to his age, such as diabetes, hypertension, heart disease. He is married, unfortunately his wife has already passed away in 2020. He lives alone. He has four children. All his family are present here today.

7.The defendant became semi-retired in 2020 and took up work as a part-time taxi driver and as a result of that driving he has obviously found himself in court today. There are a number of letters in the bundle that speak highly of him, clearly he is a man of good character.

8.I turn to the approach that I should adopt towards sentencing of this case. There are some relevant cases, firstly, R v Cooksley, an English case, [2003] 2 Cr App R 18; another Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660. In summary, these cases show that sentencing must include a strong element of deterrence and it is said that imprisonment is inevitable in most cases. Good character and remorse will not usually be a reason for departing of the need to impose a deterrent sentence or a custodial sentence. The primary consideration is the culpability of the offender’s driving.

9.The level of the defendant’s culpability is of course admitted in the Admitted Facts. They are failure to keep a proper lookout, failed to maintain the sufficient distance when executing a manouvre and failing to slow down before making that right turn. I consider these particular facts as admitted by the defendant and having seen the locus in quo of the video records, the defendant’s driving falls within what are described as the least culpable driving factor as referred to in Cooksley and the normal range for sentencing within that least culpable driving category is a starting point for sentence of between 12 to 18 months in respect of charge 1. I further assess the defendant’s culpability as lying within the middle of that range. That leads me to determine a starting point for sentence for the defendant in respect of charge 1 of 15 months’ imprisonment.

10.The defendant, as we see, is a man of clear record and of good character. That will entitle him to a full one-third discount. I do not believe in the circumstances of this case it entitles him to any further discount from that figure. So my sentence of imprisonment on the 1^st charge be one of 10 months of imprisonment.

11.There is of course a mandatory disqualification from driving of five years, that I consider sufficient disqualification, but also the defendant will be enjoined to take a Driving Improvement Course before the expiry of that period of disqualification. The defendant must take and complete that course, he should be aware of that, it is mandatory.

12.As far as the 2^nd charge is concerned, it did not contribute to the accident. It is an offence which requires the imposition of a financial penalty. I will order a fine of $1,000 to be imposed on the 2^nd charge paid forthwith.