HKSAR v. LIU TAK TAI

DCCC 513/2021

[2022] HKDC 609

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 513 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Causing grievous bodily harm by dangerous driving". He drove his private car into a traffic lane of the opposite direction and crashed into an oncoming motorcycle.

Summary of Facts

2.  To Shek Street in Shatin has 3 lanes with two-way traffic:  one going upslope towards Shui Chuen O Estate; and the other two, downslope towards Siu Lek Yuen.

3.  About 2:30 p.m. on 5 November 2020, the defendant was driving a private car UY7779 ("the Car")  along To Shek Street heading towards Shui Chuen O Estate.  His then 3-year-old daughter was on board.  At that time, the weather was fine; road surface dry; visibility good; and volume of traffic moderate.  The speed limit was 50 km/h.

4.  Upon reaching near Lamppost CE 1042, the defendant was about to make a left turn at an upslope bend, but missed that turn.  The Car kept going forward and crossed the continuous double white lines separating the upslope lane and the downslope lane.  The Car was moving in the downslope lane against the flow of traffic.  Within a few seconds, it rammed into an oncoming motorcycle WP9171 ("the Motorcycle")  driven by Mr. Pong (PW1).  After the collision, the Car continued to move forward and rammed into a stationary taxi KA9666 (the Taxi)  parked at a taxi stand.  The right front part of the Taxi was damaged.

5.  The accident described above was captured by car cameras of the Car, the Motorcycle, the Taxi and another motorcycle SW8589 driven by Mr. Chan (PW3).

6.  As a result of the collision, PW1 sustained the following injuries:  (i)  complex fracture at bilateral maxillary sinuses and right lateral orbital wall; (ii)  traumatic brain injury: acute subdural haemorrhage, subarachnoid haemorrhage cerebral oedema, right frontal and periorbital scalp haematoma; (iii)  left lung base contusion and mild atelectasis; (iv)  gross haemoperitoneum secondary to splenic laceration with vascular injury; (v)  left kidney laceration; and (vi)  left scapular fracture.

7.  PW1 was admitted to the hospital unconscious.  He received urgent brain surgery and was kept intubated in the intensive care unit.  On 8 November 2020, he was transferred to the neurosurgical high dependency unit.  On 20 November 2020, he was transferred to another hospital for rehabilitation.  He was diagnosed to be suffering from cognitive impairment due to traumatic brain injury.  Rehabilitation including physiotherapy, occupational therapy and speech therapy were performed.  PW1 was hospitalized for 128 days from 5 November 2020 to 13 March 2021.

8.  Prior to the accident, PW1 was a deliveryman earning about $30,000 per month.  Owing to his brain injuries, he became almost immobile and his limbs became feeble and numb all the time.  He could not resume his duty as a deliveryman.  He often needs assistance from his wife or a caretaker.  His wife had to quit all her part-time jobs to look after him.  PW1 is classified as Grade 3 disability and is required to attend hospital consultation and treatment for a period in terms of years on a regular basis. He receives physiotherapy for his limbs once a week; seeing an ophthalmologist, a urologist and a pancreas specialist once a month.

9.  Under caution, the defendant claimed that he was distracted by some noises, so he turned his head around to check for about 3 to 4 seconds.  Then the collision happened.

Mitigation & Sentence

10.  The defendant is 34 and has a clear criminal record. He obtained his full driving licence in 2006 and has clear traffic record as well.  Defence counsel Mr. Davies informed me that the defendant is married with 2 daughters (M, aged 9 and S, aged 4).  Unfortunately, his wife has left the family (and her whereabouts are unknown).  The defendant works as an assistant accounting manager earning $16,500 per month.  He and his 2 daughters reside with his parents, who are not in good health.

11.  In mitigation, Mr. Davies submitted that M suffers from Asperger's Syndrome; whereas S, ADHD.  Both girls require special education and much attention from the defendant.  Mr. Davies explained that right before the accident, the defendant heard some noise coming from the rear of his car.  He thought it might be S falling out of her seat and turned around to check.  Mr. Davies stressed that the defendant was not speeding; the occurrence of the accident was completely out of his character.

12.  I have read PW1's statement (dated 16 February 2022)  describing his life after the accident as well as M's Psychological Assessment Report (dated 25 March 2022).

13.  PW1's post-accident life is no doubt tragic and sad. He was basically wheelchair bound at the beginning.  Only until August 2021, he could walk on his own very slowly using a walking stick, but would get tired easily.  He also has trouble keeping his balance.  PW1's memory is severely affected.  He became very forgetful and his short-term memory is weak. PW1's wife looks after him round the clock.  They have a son (aged 11).  They now have zero income and rely on their own savings, welfare allowance and contributions from relatives.

14.  M's case is equally tragic.  Her overall intellectual ability falls within the Low Average range.  Her oral reading accuracy, pseudoword decoding ability and spelling ability are all within the Very Low range.  She is assessed as having Specific Learning Difficulties in reading and writing.  In short, M has various needs on special education and learning strategies.

15.  Mr. Davies informed me that at present, there is no one but the defendant to look after his 2 daughters.  The defendant's parents are not in good health and are unable to assist.  I decided to call for a Welfare Report on the 2 girls.  The Probation Officer confirmed that M suffers from Autism Spectrum Disorder (ASD); whereas S, ASD, ADHD and language delay. Both girls are being treated by both the Hospital Authority and private professionals.  The defendant's family is an active case of the Social Welfare Department; a case worker is assigned to follow up on this family.  The Welfare Report also revealed that the defendant's father (aged 63)  is now in stable health condition, and is able to help taking care of M and S.

16.  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.

17.  I have viewed the footage of the accident captured by each car camera numerous times.  The duration of the accident was a few seconds only.  But in those few seconds, PW1's life was turned completely upside down.  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.

18.  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[1].  I must also consider the hardship caused to PW1 and his family as a result of his injuries as well as their grievances and resentment[2].

19.  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[3] 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…"

20.  In HKSAR v Lei Tin Seng [2011] 1 HKLRD 341, Yeung JA (as he then was)  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."

21.  The accident in this case was probably the result of the defendant's momentary lapse of attention, but I cannot overlook PW1's injuries.  I accept that the defendant has all along been a good person and a loving father.  The offence he committed, however, is a serious one and cannot be treated lightly.  An immediate custodial sentence is inevitable.

22.  The road to recovery for PW1 is obviously a long one.  I dare not say I understand the pain and suffering as well as the inconvenience which PW1 needs to experience, because they are beyond imagination.

23.  It is not an easy task to send the defendant, who is an upstanding citizen with an impeccable driving record, 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 2 daughters.  The court, however, must send a clear message to the general public that drivers must shoulder the responsibility for their acts on the road.

24.  The maximum sentence for the present offence is a fine of $50,000 and imprisonment for 7 years.  Having considered all relevant factors, I adopt a starting point of 18 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 12 months.  As an act of mercy, I grant an additional discount of 1 month to reflect the desperate need of M and S for a father.  Thus, I sentence the defendant to 11 months' imprisonment.

25.  In addition to imprisonment, I make a disqualification order for a period of 2 years[4], which will start to run from the date of sentencing[5]. I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[6].  In my view, it is unnecessary to order him to re-take his driving licence test.