HKSAR v. Lam Shen-hriung, Gilbert

DCCC 978/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 978 OF 2009

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Reasons for Sentence

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Charges and pleas

1.The Defendant pleads guilty to the 2^nd Charge, namely using a defective vehicle, contrary to regulations 28(2) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374. The maximum penalty is a fine of $10,000 and 6 months’ imprisonment.

2.He pleads not guilty to the 1^st Charge, namely causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374. He is convicted after trial. The maximum penalty on indictment is a fine of $50,000 and 10 years’ imprisonment.

Facts as admitted by Defendant on 2^nd Charge

3.The rear windscreen and front and rear door windows of the Defendant’s car, KM 9682, were pasted with glass papers whereby the ability of such parts to transmit light is decreased.

Facts as found by this Court on 1^st Charge

4.At about 8:50 p.m. on 19 February 2009, after having meal with a friend, the Defendant was driving to Admiralty to pick up his girlfriend. It was drizzling and the road surface was wet. The traffic was light and smooth. It was going down-slope. There were 3 lanes. The right third lane soon led to a slip road toward A Kung Ngam. The prescribed speed limit was 70 km/h for that stretch of the west-bound Island Eastern Corridor.

5.Whilst in the right first lane, he abruptly cut into the right second lane. His speed, according to the prosecution expert’s evidence in reconstruction of the case, was not less than 89 km/h. As he was doing so, the nearside front bumper of his car hit the offside rear of a motorcycle, KR 3927. As he had not noticed the presence of the motorcycle before the collision, he did not apply the brake at the time of the collision. He realized that he had hit some object and that the motorcyclist was lying down on the road surface. He pulled up his car to one side of the right first lane.

6.The motorcyclist, Luk Siu-fai, aged 46, was found lying down at about 48 metres from the spot of collision. He soon died from multiple injuries. Examinations revealed that both the motorcyclist and the Defendant had not been taking alcohol or drug before the material time.

7.The police arrested the Defendant for the present offence. Under caution, he remained silent.

8.There were intermittent scratch marks extending 126.8 metres from the spot of collision to where the motorcycle eventually rested. The police made a sketch of the scene and took photos. They found a lot of exhibits, including the motorcyclist’s helmet, two driving gloves, clothes, and broken parts originated from the motorcycle.

9.Forensic examinations by two experts came to the conclusion that the collision point was between the offside rear of the motorcycle and the nearside front of the car. The intermittent scratch marks of 126.8 metres long were caused by the body of the motorcycle scratching on the road surface after it had toppled and skidded on the road surface.

10.The Defendant’s car was a black-coloured 2,994 cc Toyota Harrier. It had an elevated car body. It was free from mechanical defects at the material time. As a result of the collision, its front bumper was damaged.

Defendant’s background and mitigation

11.The Defendant has a clear criminal record. He was a university graduate in U.S.A. He worked in the finance field. He has held a driving licence since 1991. He is single. He lives in Lei King Wan.

12.He has a number of previous traffic records, including 6 previous speeding records as follows:

(1)  23 February 2004 (by more than 15 km/h but not more than 30 km/h);

(2)  30 May 2007 (by 15 km/h or less);

(3)  15 October 2008 (by more than 15 km/h but not more than 30 km/h);

(4)  3 February 2009 (by 15 km/h or less);

(5)  12 February 2009 (by 15 km/h or less);

(6)  12 February 2009 (by 15 km/h or less).

13.I note that the last three records were just within 2 weeks before our present case. Defence counsel submits that this is a minor aggravating factor.

14.Defence counsel submits that the defence has saved a lot of time by admitting a large part of factual evidence. The only challenge is PW2 Siu’s factual evidence and PW6 Dr Wong’s expert evidence.

Sentencing principles

15.There are no sentencing guidelines but terms of imprisonment, often substantial, are regularly imposed. Where the driving manner is blatantly irresponsible and in reckless or selfish disregard of the safety of other road users, the sentence is bound to be heavy (Secretary for Justice v Poon Wing-kay [2007] 1 HKC 289. Where the case involves a momentary error of judgment, the sentence is relatively less severe (Secretary for Justice v Fong Chai-man [2008] 3 HKLRD 493).

Sentencing present Defendant

16.There is no evidence of persistent speeding prior to collision. I can only sentence him on the basis that he was driving at 89 km/h at the moment he changed lane hence collided with the motorcycle. It was a drizzling night and the road surface was wet. Driving at such a high speed under such circumstances, he ought to have been more alert of the increasing danger to other road users had he not checked the traffic clearly and thoroughly before changing lane. This is a serious error of judgment.

17.From the traffic records, it is obvious that the Defendant has been a repeat speeder.

18.I take 1½ years’ imprisonment as the starting point. As to the defence mitigation based on the saving of time, I notice that the conflicts between expert evidence from each side have actually taken up a lot of court’s time. This is not something to hold against the Defendant. The saving of time on factual matters is insignificant in comparison. There are no effective mitigating factors. This is the sentence.

19.There are no special reasons not to disqualify him from driving. I make an order for a period of 2 ½ years. This is the sentence for the 1^st Charge.

20.On the 2^nd Charge, I impose a fine of $1,000. With the consent of the Defendant, it will be deducted from bail money.