HKSAR v. Lam Ying Yu

DCCC291/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 291 OF 2012

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Reasons for Sentence

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1.Defendant, I convicted you after trial of an offence of dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance, Cap.374.

2.At the outset of this trial you admitted that you were guilty of careless driving but that was not accepted.

3.A video recording showing the collision and the events leading up to the collision was captured on a car camera mounted on a taxi travelling behind your vehicle. 

4.At approximately 9.30 am on 21 September 2011 you were driving a private car, a Mercedes Benz, along Morrison Hill Road southbound towards Queen’s Road East.  PW1 was driving a taxi along Morrison Hill Road eastbound towards Sports Junction (a different taxi than then one with the car camera installed).  The southbound and eastbound roads crossed each other at a junction.  There were no stop or give way signs on PW1’s eastbound road and he had the right of way.  On the southbound lane where you were driving that was governed by stop signs and road markings at and before the crossing mandating you to stop at the double white lines.  You did not stop at the junction.  I found that you accelerated into the junction assuming there were no cars approaching from your right and ignored the stop signs. 

5.As a result of your failure to stop, the front of your Benz collided with the rear nearside of PW1’s taxi within the yellow boxed junction.  PW1’s taxi was as a consequence shunted sideways and was airborne for a short while and then collided with three road repairers working on a safety island nearby.  The force of the impact, as can be seen by the video recording and by the damage to both vehicles, was substantial. 

6.As a result of the taxi colliding with the workers, two were injured and one was killed.  The deceased was at the material time aged 61.  PW1, the taxi driver, was also injured.

7.You are a single lady aged 40.  You were born in China and came to Hong Kong when you were 8 years old.  You had been a very successful businesswoman and your business was as a full-time investor in securities from about 1997 to 2008.  In August 2011 in Hong Kong you were however declared a bankrupt as a result of your investing activities.  I am informed that a broker had misused your account, losing some $28 million.

8.Mr Peter Duncan, SC, leading Mr Wilson Chan, has mitigated fully and thoroughly on your behalf and I have taken into account all that they have had to say when considering what is the most appropriate sentence to be passed upon you.

9.You were principally the main breadwinner of the family, which includes your grandmother, mother, younger brother and sister-in-law. 

10.You are a person of clear criminal record and although have no criminal convictions for any traffic offences, you have some fixed penalty offences.  They are for driving in excess of the speed limit by more than 15 kilometres an hour but no more than 30 in 2007; four for crossing continuous double white lines or a white line with a broken white line of which three were in 2008 and the fourth in 2011 and two offences of using a mobile phone while the vehicle is in motion, both in 2010.

11.The crux of Mr Duncan’s mitigation, whilst referring to the well-known case of R v Cooksley [2003] 3 ALL ER 40, is that the sentence for this case falls within the first bracket of Cooksley, he quite properly accepted that for offences of dangerous driving causing death an immediate custodial sentence is warranted. Mr Duncan has said this case should fall within the short custodial sentence bracket of between 12 to 18 months and submits there are no seriously aggravating factors to the facts of this case and your driving should not be taken out of that lower bracket. 

12.Mr Duncan submits there are compelling personal circumstances.  You have no criminal record and you are a first offender going to prison, which is going to be felt harshly by you.  I accept that this the case.  In a lot of dangerous driving causing death cases the offenders are not criminals and do not intend to cause the death are may be first offenders. 

13.I have also heard that your health condition as a result of your bankruptcy and this offence has deteriorated to such an extent that you are now suffering from major depression to which you are seeing a doctor and being treated for your illness.  As a result of this accident, you have also been to see a chaplain and seek regular counselling.

14.I have heard in evidence your extreme remorse as a result of your driving that you have caused to the deceased and his family and Mr Duncan has informed me just now that at your own expense contributed to the funeral services of the deceased by providing religious monks for the ceremony. 

15.Mr Duncan recognises that this is not a case to which you have pleaded guilty and admitted responsibility but this was a case conducted on that basis, and this was not a case of bold defiance of the prosecution case.

16.The clear principles to which the court sentences is on the manner of your driving.  Very fortunately in this case there was a video recording of your driving.  The video shows clearly that you did not stop at the traffic signals.  I found that you deliberately ignored the traffic signs to stop. 

17.I had mentioned a case to your counsel Mr Duncan in his submissions to me in mitigation.  The name of that case is Secretary for Justice v Wong Wai Hung, CAAR7/2010, to which the Court of Appeal, Tang JA, acting CJHC then gave judgment for the court on 21 December 2010. 

18.This was a case where a deceased, an 87-year-old man, was crossing a zebra crossing with his domestic helper and they were knocked down by a 4-wheel drive land cruiser driven by the respondent and as a result the deceased died.  This was where the deceased was knocked down at a zebra crossing where the drivers were obligated to stop at the zebra crossing to pedestrians who have stepped on to the crossing.  At the time of the accident the weather was fine, the street was dry, the line of vision along the street with the zebra crossings was good and clear with no obstructions.

19.I turn to the factors there of which the Court of Appeal referred.  The Court of Appeal referred to the leading case of Cooksley. Cooksley explained that causing death is invariably a very serious crime and that even where there are no aggravating circumstances a short custodial sentence of perhaps 12 to 18 months should be the starting point, progressing through intermediate culpability, 2 to 3 years, to higher culpability, 4 to 5, and most serious culpability up to a maximum of 10 years, culpability is a determining factor.

20.In Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, the Court of Appeal expressed general agreement with the Cooksley approach, the court emphasised that it is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving.

21.At paragraph 25 of Wong Wai Hung the court said, “With great respect to the learned judge, the litany of absence of particular aggravating factors in paragraph 29 of his reasons is beside the point.  It is obvious that the respondent had disregarded the presence of pedestrians, who had the right of way, on the zebra crossing.  It was no excuse to say that he thought he had room to pass.  The fact he had not.  That was said to be an error of judgment. But it was more than that.  It was a conscious decision on his part not to give presence to the pedestrians who were there.” 

22.The court went on to cite at paragraph 27 the case of Lam Siu Tong where it was said, “That a conscious disregard for traffic lights would likely put the case into the most serious category.”  Tang JA quoted paragraph 24 of Lam Siu Tong,

“Despite all the warning signs, he nevertheless continued to travel into the pedestrian crossing without slowing down, oblivious to the obvious dangers that this caused. It was almost as if the respondent did not care whether or not his bus hit anyone at the pedestrian crossing. He certainly decided to take a huge risk in the way he drove.”

23.I would not put the defendant’s driving manner in this case as high as that, but despite the obvious dangers of not stopping at a junction the defendant continued across.  The defendant should have slowed down long before reaching the crossing and stopped at the crossing.  I have already referred to the Road User’s Code in my verdict.  This was a deliberate failure to abide by the mandatory stop signs. 

24.Although the speed limit was 50 kilometres and there was no evidence of the defendant’s vehicle exceeding that limit, the evidence is clear that the defendant drove into the junction at a high speed of about 45 kilometres an hour.  The speed to which she drove into the junction was at a much faster and greater speed than she should have ever been driving into the junction.  This is as an aggravating factor.  A further aggravating factor is that not only did one person die but three others were injured, although perhaps quite fortunately not seriously. 

25.The defendant’s driving was in my view, a conscious decision by her to disregard the approach to a junction to slow down and to reduce her speed and to ignore the stop sign.  This was not a momentary error of judgment.  In those circumstances, I consider that a sentence in the intermediate culpability is the most appropriate starting point.

26.Taking into account all the above factors and matters, I consider that a starting point of 3 years’ imprisonment is the appropriate term and you are so sentenced.

27.The defendant is to be disqualified from holding or obtaining a driving licence for a period of 5 years and the defendant is to attend and complete a driving improvement course under s.72A of the RTO cap. 374.