HKSAR v. Yau Sing Tak

DCCC 171/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 171 OF 2013

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Reasons for Sentence

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1.In this case, the defendant is convicted of one count of dangerous driving causing death after trial.

2.The facts are simple.  One morning after 5 am, the defendant drove his private car on a rather straight stretch of road in Kowloon.  There was a traffic-light-controlled pedestrian crossing at that section of Po Kong Village Road.  An average driver could see that crossing from within 100 metres.

3.When the defendant’s car was approaching the crossing, he was speeding.  The forensic scientist in this case has found out that the defendant was travelling at an average speed of about 68 kilometres per hour between position 1 and position 8.

4.Position 1 was about 28 metres from the left edge of the crossing while position 8 was merely about 4 metres from that edge. The speed limit there was only 50 kilometres per hour.

5.I find in the trial that a pedestrian (i.e., “the deceased”), a 73-year-old man, ran out onto the road suddenly.  He ran out either from the pavement or from the roadside but quite near the kerb.

6.I also find that the deceased either crossed the road via the striped area of the pedestrian crossing or he was just outside the crossing but still very near the right edge of the crossing.  The striped crossing was about 3 metres wide.

7.I find the defendant, though speeding, had been maintaining a lookout on the road.  He looked to the front and saw the deceased rushing out.

8.I find that the defendant saw the deceased rushing out when the defendant’s car was about 24 metres from the left edge of the crossing.  He took due time to react as an average driver but because of his speed, he only started to brake at position 7, which was merely about 6.7 metres from the left edge of the crossing.

9.The defendant’s car had a high braking efficiency of 98 per cent. But because of the speed of the car, the defendant could not stop the car in time and thus hit the deceased.

10.The hit spot was almost at the middle of the second lane (ie the lane travelled by the defendant).  The hit spot was about 4 metres from the kerb.

11.I find that the deceased was either ignorant of the defendant’s oncoming car or the deceased was merely reckless. 

12.Drugs report reveal that the deceased had taken certain medication, which might induce the side-effects of drowsiness and judgment problems.

13.The fault of the defendant was that he was travelling at too high a speed when he was so close to the pedestrian crossing. 

14.The fatal accident was a combined consequence of the defendant’s dangerous driving and the deceased’s own rushing out act.

15.The defendant is now aged 26.  He has two previous criminal records but they were of a different nature from the present charge.

16.The defendant first got his driving licence in November 2005.  His traffic record is bad.  Three-odd months after he had got his licence in November 2005, he already sped by more than 15 kilometres per hour but not more than 30 kilometres per hour. And since then, he had seven more similar records of speeding. Five more were of the same extent (ie speeding by more than 15 kilometres per hour but not more than 30 kilometres per hour) but two were more serious (ie speeding by more than 30 kilometres per hour but not more than 45 kilometres per hour).

17.Besides those, the defendant also got one fixed penalty for crossing continuous double white lines or white line with a broken white line.  He was also punished once for using a mobile phone while driving.

18.Counsel says the defendant is still single, though he has a long-term girlfriend.  The defendant is living with his parents.

19.The defendant was working as a logistics officer by the time of the offence and he is still in that job.  He earns $15,000 plus commission.

20.Counsel says the defendant often had to work late and on that early morning he was just off duty and he was going home.

21.Counsel rightly concedes that in this case there is not much mitigation to be advanced, but still he is able to say the defendant now had shown some remorse for this incident.  The defendant actually had paid some money to conduct some Taoist rituals for the deceased.

22.While the defendant must be regarded as a rather bad driver because of his traffic record and because of his act in the present incident, he has his benevolent side.  According to counsel, he has been contributing some money to an international charity, Médicins Sans Frontières.

23.Both prosecutor and defence counsel mentioned to me the case of Poon Wing Kay, CAAR 2/2006 and CACC 536/2005.  Defence counsel also mentioned the case of Cooksley, [2003] 3 All ER 40.  And there is also the case of Lam Siu Tong, CAAR 2/2009, which has been mentioned in the trial process.

24.Counsel says this case is not the worst of its type.  At most, it should be placed at the lower end of the intermediate culpability band as defined by the Cooksley case.

25.Defence counsel submits the facts that the accident occurred at a pedestrian crossing and that the defendant was speeding were really part and parcel of his dangerous driving act, so these should not be regarded as aggravating factors.  That means these should not be taken as factors to enhance the sentence.

26.Counsel asks me to be as lenient as possible. 

27.On the matter of disqualification, he reminds the court that the defendant has been ordered by the Magistracy not to drive further since 29 January 2013, when he had been on bail.

28.I agree with defence counsel that this is not the worst type of dangerous driving causing death cases, but all dangerous driving causing death cases are serious.

29.This is not the slightest type of such cases because the defendant was really speeding about 18 kilometres per hour over and above the speed limit of 50 kilometres per hour when he was approaching the pedestrian crossing.

30.It was early morning after 5 am but all drivers should be careful, particularly at or around pedestrian crossings, as the Court of Appeal in the case of Lam Siu Tong points out that pedestrians will be crossing the road there, whatever the time of day or night.

31.While the deceased had to bear his own responsibility for rushing out onto the road so suddenly, the defendant must be punished for his own dangerous act (ie driving at too high a speed when he was that near the pedestrian crossing).

32.As the Court of Appeal often emphasised, for example, in the case of Poon Wing Kay, sentence passed in dangerous driving causing death cases ought to have deterrent effect.

33.It was certainly the first time the defendant sped near a pedestrian crossing and knocked down someone there, but it was not the first time that he sped on the road.  His traffic record is a poor one. There were eight speed offences, six of which were for speeding more than 15 kilometres per hour but not more than 30 kilometres per hour, while two were for speeding for more than 30 kilometres per hour but not more than 45 kilometres per hour.

34.I am quite sure the defendant would be remorseful now, but in the past he was not only a reckless driver; he was dangerous.

35.As counsel rightly concedes, there is really not much mitigation in this case.  The defendant even denies he was speeding in the trial; he is only convicted after trial.

36.In the case of Lam Siu Tong, the appellant was convicted for dangerous driving causing death.  That appellant sped also near or at a pedestrian crossing at a speed of about 74 kilometres per hour. He went through the amber light.

37.That appellant had three previous convictions for careless driving, one for speeding, one for crossing double white lines, one for driving without insurance and one for not displaying a valid licence. That record was not good at all.

38.The Court of Appeal were of the view that the correct starting point for the appellant in that case was 24 months of imprisonment.

39.In the present case, the facts are less serious because I find the light at the material time was green in the defendant’s favour.

40.The defendant’s only fault was that he was speeding at an average speed of about 68 kilometres per hour when he was approaching the pedestrian crossing. 

41.He was looking out and was able to see the deceased coming out.  The defendant also took action to brake but because he was speeding as such, he could not stop his car in time.

42.I agree with defence counsel in that the defendant’s speeding and that the accident occurred at the pedestrian crossing were actually part of the defendant’s dangerous act.  They should not be doubly accounted as aggravating factors for sentence.

43.I also agree with defence counsel that the present case can be placed at the lower end of the intermediate culpability band as defined in the case of Cooksley.

44.The facts of the present case are less serious than those in the case of Lam Siu Tong, but the defendant’s traffic record is poor in the sense that he had been speeding too much and too often.

45.Having considered all the facts pertaining to the case, the defendant’s record and counsel’s mitigation, I adopt 2 years’ imprisonment as the starting point and because there is no mitigating factor for any discount, that is the term I will impose upon the defendant’s conviction.

46.He is sentenced to 2 years’ imprisonment for the present charge.

47.I am aware the defendant has been ordered not to drive since 29 January this year, so he had been ordered not to drive for some months already.

48.However, as said, the defendant at least in the past was a reckless driver and a dangerous driver.  I am of the view that a disqualification period of 5 years, starting from today, is not a day too long for him.

49.Therefore, I make the order that he is to be disqualified for 5 years starting from today and during that period he is not to drive any vehicle.

50.According to the law, the defendant also has to attend a driving improvement course within the last 3 months of that disqualification period.  Unless he attends and passes that course, he cannot drive any more.  Furthermore according to the law, if he fails to do so, he can be further punished and that includes a term of imprisonment.