HKSAR v. TAI HIP LAI

DCCC 795/2023

[2024] HKDC 1275

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 795 OF 2023

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Dangerous driving causing death" (Charge 1)  and a minor offence in relation to the maintenance of his car (Charge 2). He knocked down a pedestrian at a crossing controlled by traffic lights.

Summary of Facts

Charge 1

2.  The accident took place at a pedestrian crossing on Tin Sam Street (westbound), Tai Wai, Shatin.  The relevant road segment was a one-way two-lane carriageway regulated by both vehicular and pedestrian traffic lights.  At the time of the accident, the road surface was dry and in good repairs.  The traffic volume was normal.  The speed limit was 50 km/h.

3.  About 10:45 p.m. on 19 January 2023, the defendant was driving a private car YJ3152 ("the Car")  along the 2^nd left lane of Tin Sam Street with his mother on board.  Upon reaching the 1^st arrow road marking before arriving at the white stop line, the vehicular traffic light changed from green to amber.  Almost at the same time and when the pedestrian traffic light was still red, Madam Guo (the deceased; aged 65)  began to cross Tin Sam Street (westbound)  at the mid-road island slowly from the defendant's right to left near Lamppost No.N7257A.

4.  Instead of decelerating or braking in anticipation of the upcoming red vehicular traffic light, the defendant failed to notice the deceased, who had just set foot on the pedestrian crossing, and accelerated[2].  As a result, the front nearside of the Car hit the deceased.  She was bounced off the Car and fell on the road.

5.  The ambulance crew arrived at the scene around 10:52 in the same evening.  The deceased was not breathing and had no pulse. CPR was performed and she was sent to the hospital.  The deceased was certified dead at 11:13 p.m. on the same day.  According to the autopsy report, the injuries found on the deceased were consistent with having hit by an oncoming vehicle, with bumper impacts (fractures of both leg bones)  and secondary impacts from being thrown onto the bonnet or roof of the car or hitting the ground (severe head injuries, fractures of multiple ribs and comminuted fractures of the pelvis).

6.  At the scene, the defendant told PC 13611 that he was driving along the right lane at 50 km/h and the traffic light turned from green to amber.  The defendant continued to drive and the deceased suddenly crossed the road from right to left in front of the Car.  He swerved to the left but still hit the deceased.

7.  A forensic scientist (Dr. George Wong)  calculated the average speed of the Car prior to the accident.  He found that the speed of the Car increased from 66 ± 7 km/h to 90 ± 9 km/h when the vehicular traffic light changed from green to amber.  Right before impact, the Car was travelling at 84 ± 8 km/h.  Dr. Wong considered that if the defendant was driving within the speed limit of 50 km/h, he could have been able to stop the Car before reaching the path of the deceased; and the accident could have been avoided.

Charge 2

8.  On 30 January 2023, the Car was examined by a motor vehicle examiner.  A total of 12 Iron Man figurines were found being attached to the top of the nearside dashboard.  They obstructed the driver's full view of the road and traffic ahead of the Car.

9.  In his written record of interview dated 17 March 2023, the defendant admitted having placed the Iron Man figurines on the top of the dashboard because he was fond of the character.  He also admitted that he was the person responsible for the maintenance of the Car.

Mitigation & Sentence

10.  The defendant is almost 37 and has a clear record. He obtained his full driving licence in June 2006.  In terms of traffic records, he only has 1 conviction of "Careless driving" (offence dated September 2015).  Defence counsel Ms. Yang informed me that the defendant is married with a son (aged 9).  The defendant is educated up to master's level.  At the time of his arrest, he had been working in the insurance field for about 10 years.  The defendant was laid off by his employer in July this year.  He now relies on his savings and engages in toys sale, earning about $20,000 per month.

11.  In mitigation, Ms. Yang submitted that at the time of the accident, the defendant was not under the influence of alcohol or drugs.  His mother was feeling rather unwell (dizziness and tachycardia); he wanted to drive her to the hospital as fast as he could.  Ms. Yang mentioned that the deceased was crossing the road against a red pedestrian traffic light.

12.  Ms. Yang further submitted that the defendant suffers from

13.  I have viewed the footage of the accident numerous times.  As shown in the footage, once the defendant has completed the right turn onto Tin Sam Street from Hung Mui Kuk Road, he could clearly see a pedestrian jaywalking at the crossing[3], which should have alerted him of the possibility of more pedestrians jaywalking.  The vehicular traffic light turned from green to amber at the 00:11 time marker.  The deceased began to set foot at the crossing (westbound portion)  at the 00:12 time marker.  She appeared to be walking at a slightly slower than normal pace and was clearly visible to the defendant as late as the 00:13 time marker.  I do not understand why he did not notice her.  His mind must have wandered off to somewhere else.

14.  The duration of the accident was a few seconds only.  But in those few seconds, the deceased lost her life.  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. 

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.  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[4].  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[5].

17.  The courts have repeatedly emphasized the importance of deterrence when sentencing in cases related to dangerous driving.  I have reminded myself of the sentencing principles[6] set out by the Court of Appeal

in SJ v Poon Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(4)  "While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor. It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence…"

18.  In HKSAR v Lei Tin Seng [2011] 1 HKLRD 341, Yeung JA held :-

"17. This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

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19. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

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22. This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment."

19.  I accept that the deceased disobeyed a red pedestrian traffic light.  On the other hand, the accident occurred because (i)  the defendant had failed to notice the deceased's presence in a timely fashion; (ii)  the defendant was speeding(travelling at 76 in a 50 zone); and (iii)  the defendant decided to accelerate instead of braking upon seeing the traffic light turning from green to amber, which is always a risky manoeuvre.  Had he proceeded through the crossing with caution (i.e. braking instead of accelerating; and bearing in mind the possibility of pedestrians jaywalking)  and driven at a much lower speed, the accident could have been avoided. 

20.  It is not an easy task to send someone like the defendant, who has never lost his freedom, to prison.  I have considered long and hard what the appropriate length of imprisonment should be.  I understand the traumatic effect of a prison term would have on the defendant and his family.  The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

21.  Although the deceased disobeyed a red pedestrian traffic light, her life was vulnerable if hit by an oncoming vehicle.  It may not seem fair, but it is a fact of life that drivers of motor vehicles are expected to carry a heavier burden in most situations when pedestrians, cyclists or motorcyclists are involved.  The bigger and heavier a vehicle, the more lethal it becomes. 

22.  When determining the starting point, I treat the defendant as a law-abiding citizen and having a good driving record.  I am aware of his current health conditions and have adopted the lowest figures calculated by Dr. Wong.  It was not difficult at all for the defendant to have noticed the deceased's presence when the Car was approaching the crossing.  Regrettably, he had made a few momentary yet fatal mistakes.  I consider his mistakes falling at the intermediate culpability category on the Cooksley's scale[7]. For Charge 1, I adopt a starting point of 27 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 18 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 18 months' imprisonment for this charge.

23.  In addition to imprisonment, I make a disqualification order for a period of 5 years[8] (the disqualification period will start to run from the date of sentencing[9]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[10].  In my view, it is unnecessary to order him to re-take his driving licence test.

24.  Regarding Charge 2, the maximum penalty is a fine at level 3 (i.e. $10,000)  and imprisonment for 6 months.  I have viewed photographs of the Car's dashboard.  The level of obstruction and distraction caused by the display of the figurines is minimal.  I will impose a fine in the sum of $1,000, to be paid within 7 days or deducted from the defendant's bail.