HKSAR v. LAU WING SEE

DCCC 704/2017

[2018] HKDC 269

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 704 OF 2017

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REASONS FOR SENTENCE

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1.  A serious traffic accident took place in the morning on 12 November 2016 in Causeway Bay. The defendant, a taxi driver aged 71 at the time, drove his taxi onto the pedestrian pavement outside SOGO Department Store (“SOGO”) and knocked down eight pedestrians. Two of them were seriously injured. The taxi driven by the defendant was later examined and two minor defects were found.

2.  The defendant pleaded guilty to one count of dangerous driving causing grievous bodily harm and two counts of using a defective vehicle, and admitted the facts pertaining to those charges.

3.  The stretch of Hennessy Road at No 555 Hennessy Road, Causeway Bay, where the main entrance of the SOGO is located, is a dual carriageway with six lanes consisting of three lanes eastbound with a tram track, and three lanes westbound with a tram track.  There is a pedestrian crossing outside the main entrance of SOGO, with pedestrian lights and traffic signals.

4.  On 12 November 2016 at around 10:41 am, the road surface of the above stretch of Hennessy Road was dry and the traffic flow was normal.  The weather was fine and the daylight was sufficient.  The speed limit is 50 kilometres per hour. 

5.  At that time the defendant was driving a taxi registration number LU8991 (“the vehicle”) along the first left lane of Hennessy Road.  At about 30 metres before reaching the pedestrian crossing outside SOGO, the vehicle stopped and it moved again until it reached the pedestrian crossing outside SOGO, where the nearside front of the vehicle crashed into the road railing.  The vehicle was then driven onto the pedestrian pavement outside SOGO.  As a result, eight pedestrians were knocked down, while the vehicle and the road railing were damaged at the point of impact.

6.  The course of the accident was captured by:-

(1) the CCTV camera system outside SOGO;

(2) the on-board camera of another taxi (“the taxi”); and

(3) the on-board camera of the vehicle.

7.  The CCTV installed at the main entrance of SOGO overlooking Hennessy Road eastbound captured the vehicle first stopped in the first left lane of Hennessy Road eastbound outside the pavement.  The vehicle then started to move slowly forward.  At about 30 metres before reaching the pedestrian crossing outside the main entrance of SOGO, the vehicle came to a stop.  A few seconds later, the vehicle moved forward again.  

8.  The CCTV installed at the main entrance of SOGO overlooking the pavement outside the entrance captured the nearside front of the vehicle crashed into the road railing outside SOGO and hit the back of a female at around 10:41 am. The vehicle was then driven onto the pedestrian pavement outside the main entrance and rammed firstly into Mr Tang Koon Keung (PW1) and then Mr Poon Chung Yip William (PW2) and then a male and another female.  While the vehicle was being driven onto the pavement, the nearside of the vehicle hit a third female.  PW1 fell on the ground and PW2 fell on the bonnet of the vehicle. While the vehicle continued to move forward on the pavement, the front of the vehicle hit a fourth female and a boy, causing him to bounce away and fall on the ground.  The vehicle then came to a stop.

9.  The on-board camera of the taxi captured the vehicle first stopped on the first left lane of Hennessy Road eastbound, some distance away from the main entrance of SOGO.  Then the vehicle started to move slowly towards the traffic light.  At the time, no pedestrian was crossing the pedestrian crossing. After that, the vehicle was driven onto the pedestrian pavement outside the main entrance of SOGO and finally came to a stop.

10.  The on-board camera of the vehicle captured itself stopping on the first left lane of Hennessy Road eastbound outside the pavement.  A passenger got off the vehicle.  Then the vehicle started to move slowly forward.  A male was coughing inside the vehicle.  After that, the vehicle stopped on the first left lane, some distance away from the main entrance of SOGO.  A few seconds later, the vehicle started to move again.  At that time, no pedestrian was crossing the pedestrian crossing.  The vehicle moved slowly towards the traffic light.

11.  According to PW1, about 10 seconds before the accident, he was waiting outside the main entrance of SOGO before the pedestrian crossing for the pedestrian light to change from red to green.  He was standing next to the road railing.  On his left, there were a few pedestrians waiting to cross the road. While PW1 was looking at the pedestrian crossing with his back facing SOGO, he saw the vehicle moving towards him.  However, before he could react to it, the nearside front of the vehicle hit his right leg, causing him to fall on the ground.

12.  Madam Li Wing Shuen (PW3) was a customer service manager of SOGO.  At the time of the accident, she was serving customers outside the main entrance of SOGO, with her back facing Hennessy Road.  From time to time, she would look around and keep an eye on the traffic flow and pedestrian flow.  On the last check of the pavement before the crossing, she saw pedestrians standing on the pavement before the crossing and no one was crossing the road.  Three to five seconds later, she heard a loud bang.  When she turned around, she saw a male and an elderly female falling on the ground and the vehicle driving onto the pavement.  As the vehicle stopped, she saw a few pedestrians lying on the ground in front of the vehicle and the defendant coming out of the vehicle looking puzzled.

13.  PC 20875 (PW4) attended the scene at around 10:47 am and identified the defendant as the driver of the vehicle.

14.  The forensic scientist of the government laboratory (PW21) examined the relevant footages and materials provided by the police and ascertained that the vehicle was travelling at a speed of about 16 km/h at the time of the accident.

15.  On 18 June 2015, the defendant submitted an application for renewal of full three-year driving licence, together with a body check declaration.  The defendant’s application was approved by the Transport Department.

16.  PW1 was admitted first to Ruttonjee & Tang Shiu Kin Hospital (“Ruttonjee Hospital”) and then Pamela Youde Nethersole Eastern Hospital (“PYNEH”) after the accident.  He was diagnosed with supracondylar fracture of left humerus and fracture of right tibial plateau.  His right knee tibial plateau fracture was treated conservatively with cast, while his left elbow fracture was treated with open reduction and fixation with plating to the left humerus.

17.  On 28 November 2016, PW1 was transferred to Ruttonjee Hospital for occupational therapy and physiotherapy.  He was reported to have good progress in pain control, mobility and left elbow range of movement.  He was discharged on 9 January 2017 with follow-up arranged in PYNEH.

18.  On 10 February 2017, PW1 complained of persistent pain over his left upper limb, which was diffused from elbow to shoulders, and intermittent pain over his right knee.  Upon physical examination, he was found to have limited range of motion in his left shoulder, elbow and right knee. 

19.  On 16 February 2017, he started his mobilisation training programme and on 4 October 2017 he proceeded with work rehabilitation.

20.  As on 8 December 2017, PW1 did not have much complaint of pain in his left upper limb and right knee.  The range of motion in his left shoulder and left elbow had improved and that in his right knee had become full.  He would walk independently with mild limping gait, but would use a walking stick for standby support when going out.  He was reported to have steady improvement with his work performance.

21.  PW2 was admitted to Ruttonjee Hospital after the accident and was diagnosed with elbow abrasion, right knee with diffuse tenderness, mild effusion and laxity on medial collateral ligament and left buttock bruising. He was admitted to Hong Kong Sanatorium and Hospital (“HKSH”) for observation and MRI examination of right knee. 

22.  On 15 November 2016, he received surgery of repair of torn medial collateral ligament and medial patellar retinaculum under general anaesthesia and received physiotherapy for walking exercise. 

23.  On 1 December 2016, he was discharged from HKSH with follow-up arranged in their outpatient physiotherapy.

24.  PW2 was reported to have gradual improvement with physiotherapy and home exercise.  As at February 2018, there was no pain and PW2 would walk unaided.

25.  Eight days after the accident, on 20 November 2016, the defendant attended A&E of PYNEH and complained of loss of consciousness for a few seconds after severe coughing and was admitted to the medical ward for further investigation and management in respect of cough and syncope.  After a series of examination, no significant medical findings were made.  On 24 November 2016, the defendant was discharged from PYNEH.

26.  The medical history of the defendant shows that:-

(a) he was found to suffer from early cataract in March 2007. It was reported that he received left cataract operation in November 2014 and left lower eyelid electrolysis to remove trichiasis in March 2016;

(b) between January 2015 and December 2016 he attended the diabetic clinic of Ruttonjee Hospital regularly in respect of his glucose control, blood pressure and visual acuity. No significant medical problems were found;

(c) between 1 January 2015 and 16 December 2015 he attended the respiratory outpatient clinic of Ruttonjee Hospital for abnormal chest XR finding with right middle lobe collapse and chronic cough on inhaler. He had lung function done on 23 January 2015 and was prescribed with inhaler medications.

27.  On 12 November 2016, PC 14672 (PW5) arrested the defendant.  In a cautioned interview, the defendant said the following:-

(a) he picked up the vehicle in Quarry Bay on 12 November 2016 at around 8:30 am. He checked the vehicle and found the mechanical parts of the vehicle were in order before starting work;

(b) at around 10:41 am, while he was driving the vehicle, he picked up two passengers, one female and one female, behind the bus stop outside SOGO, whose destination was North Point;

(c) after picking up the two passengers, he drove along the first left lane of Hennessy Road. As he saw the traffic light was flashing green, he continued to drive the vehicle forward. Suddenly, he saw more than one pedestrian dashing out from the area outside SOGO to the pedestrian crossing. He immediately turned the vehicle towards the left and thus hit the people on the pedestrian pavement. At the time of the accident, he was driving at a speed of 10 to 20 km/h.

(d) after the accident, he came out of the vehicle to check on the injured pedestrians and the damages to the vehicle. The two passengers left the vehicle without leaving their names or contact details.

28.  In the video recorded interview conducted on 12 November 2016, the defendant was only willing to confirm under caution that he picked up the vehicle in Quarry Bay at around 8:30 am and had checked the mechanical parts of the vehicle before starting work and that at the time of the accident he was driving at a scene of 10 to 20 km/h.  He refused to answer the questions relating to the accident, but disclosed that he had a history of diabetes mellitus.

29.  In the video recorded interview conducted on 23 December 2106, the defendant said the following under caution:-

(a) he dropped a passenger off behind the bus stop outside SOGO before the accident. At the juncture, a male and female intended to board the vehicle. However, he was not sure if the male and female eventually boarded the vehicle;

(b) he suddenly saw a person dashing from the bus stop to the front of the vehicle. To avoid collision, he turned the vehicle to the left. He was shocked and became unconscious. Then the accident happened;

(c) what he saw at the time was a shadow dashing out from his left, one to two feet away from the vehicle. He could not identify the gender of the person;

(d) he did not tell the police that he had become unconscious because he did not think it might be the case until he knocked out twice at home within one week after the accident. He suspected the unconsciousness caused the accident;

(e) he had been suffering from diabetes mellitus for two to three years and had problems with his lungs. He took the pills prescribed for reducing glucose level in the morning before breakfast, but not the pills for stopping cough. He also had been suffering from cataract and yet his treating doctor had not asked him to stop driving. He had medical proof to support his latest application for renewal of his driving licence.

30.  On 14 November 2016, the Motor Vehicle Examiner of the Transport Department (PW14) examined the vehicle at Quarry Bay Vehicle Detention Pound and found two minors defects, namely:-

(a) the taximeter gearbox connection sealing was missing; and

(b) the normal retractable function of the driver’s seat belt was impaired (it was stuck at a position fitted with an additional clip).

31.  In the two cautioned interviews on 23 December 2016, the defendant said:-

(a) he rented the vehicle from the owner of the vehicle at a rental cost of $400 a day;

(b) when he picked up the vehicle on 12 November 2016 the clip was already fitted on the driver’s seat belt. However, he did not know who fitted the clip on the seat belt;

(c) he had checked the general conditions of the vehicle before starting work. He did not know where the taximeter gearbox connection seal was and he did not know it was illegal to have a clip fitted on the driver’s seat belt;

(d) he disagreed that he should be responsible for the mechanical defects of the vehicle.

32.  The defendant was born in Hong Kong in September 1945.  He was 71 at the time of the accident and is now 72.  He had a hitherto clear criminal record. Insofar as his traffic record is concerned, he first obtained his driving licence in 1969.  His only traffic conviction was in 2011.  He was convicted of careless driving and was fined $1,000.

33.  The defendant completed Form 5 education in Hong Kong.  He worked as a part-time taxi driver at the time of the accident.  He is now a cleaning worker.  He has diabetes mellitus.  The defendant is living with his 59-year-old wife.  They have no children.

34.  Mr Oliver Davies submitted three mitigation letters written by:-

(1) friends of the defendant;

(2) the wife of the defendant; and

(3) the defendant.

35.  In the mitigation letters, they asked for a non-custodial sentence to be passed on the defendant.

36.  I understand perfectly the concern of the defendant’s wife and the friends of the defendant.  I am also aware of the age of the defendant, his medical condition and his hitherto clear record. 

37.  In my judgment, the dangerous driving of the defendant had resulted in a serious traffic accident.  Eight pedestrians were hit and two of them were seriously injured.

38.  I have borne in mind the fortunate fact that PW1 and PW2 both recovered satisfactorily from the injuries.

39.  Having said that, one should bear in mind that PW1 was hospitalised between 12 November 2016 and 9 January 2017.  It was not until December 2017 that the pain to his left upper limb and right knee subsided and range of motion in his left shoulder and left elbow had improved and that in his right knee had become full.

40.  PW1 would walk independently with mild limping gait, but he needed to use a walking stick for standby support when going out.  I am aware that PW1 was reported to have steady improvement with his work performance.

41.  As for PW2, he was hospitalised between 12 November 2016 and 1 December 2017.  He had to undergo a total of three surgery operations for the injuries to his knees, which took place in November 2016, January and September 2017 respectively.  He received his physiotherapy for walking exercise after the surgery. 

42.  I am aware that PW2 was reported to have gradual improvement with physiotherapy and home exercise and, as in February 2018, there was no pain and PW2 would walk unaided.

43.  Given the serious consequences brought about by the dangerous driving of the defendant and the driving culpability of the defendant, Charge 1 calls for an immediate custodial sentence.  I would be failing in my duty if I were to impose anything short of immediate custodial sentence.

44.  The defendant was obviously not fit to drive at the time.  He knew he had problems with his lungs.  He was given medications for his diabetes mellitus and his coughing problems, but he only took the pills prescribed for his diabetes mellitus but not the pills for stopping cough.  He was coughing seconds before the accident happened. 

45.  In my judgment, the defendant drove at a time when he knew he was medically unfit to do so.  If taking the pills for stopping cough would result in drowsiness and for that reason the defendant did not take the pills as he had to drive, the defendant should also realise that his coughing problem might affect his driving without the help of proper medication.  If taking the pills for stopping cough would not affect his driving, he had no reason not to take the pills.

46.  The defendant lied to the police when he was interviewed after the accident.  He first lied about the presence of a male and female passenger.  He lied again in the video recorded interviews on 12 November 2016 and 23 December 2016 when he claimed he turned the vehicle to the left to avoid collision with a person or persons who had dashed out to the pedestrian crossing.

47.  In my judgment, the lies told by the defendant were deliberate.  He was not confused.  The video clips and the account of PW1 show clearly that there was no pedestrian crossing the road at the time.

48.  The account given by the defendant on 23 December 2016 (ie that, in order to avoid collision with the person dashing from the bus stop to the front of the vehicle, he turned the vehicle to the left; he was shocked and he became unconscious) must be a deliberate lie. 

49.  So is the account given by the defendant on 12 November 2016 (ie that suddenly he saw more than one pedestrian dashing out from the area outside SOGO to the pedestrian crossing, so he immediately turned the vehicle towards the left and thus hit the people on the pedestrian pavement).

50.  I also reject the explanation given by the defendant that he did not tell the police that he had become unconscious because he did not think it might be the case until he knocked out twice at home within one week after the accident.

51.  Obviously, when the defendant was interviewed on 12 November 2016, he was keen to minimise his responsibility by suggesting that the accident was caused by the sudden dashing out of more than one pedestrian.

52.  I take it as an aggravating factor that the defendant lied to the police in his attempt to mislead the police into accepting that he drove the vehicle onto the pedestrian pavement in order to avoid hitting the pedestrians who dashed out to the pedestrian crossing.

53.  Mr Oliver Davies also submitted some documents which purport to show that the defendant had participated in some voluntary works between December 2017 and February 2018.  The voluntary works provided by the defendant, according to the documents, were all rendered after the accident.

54.  I have considered the materials before me, but I am not prepared to give any additional discount for the voluntary works rendered after the offence.

55.  The maximum penalty for the offence is a fine at level 5 and 7 years’ imprisonment on indictment, and disqualification for a period of not less than 2 years on a first conviction.

56.  Given the fact that the defendant chose to drive when knowingly suffering from a medical condition which significantly impaired his driving skills, that two were seriously injured and six others hit in the accident, and the false claim that there were pedestrians dashing out to the crossing which led to the left turn, I find the culpability of the defendant as intermediate.

57.  A term of immediate imprisonment is called for.  I see no humanitarian grounds or exceptional circumstances which justify the suspension of the sentence.

58.  On Charge 1, a starting point of 15 months’ imprisonment is appropriate.

59.  The defendant is given one-third reduction for his guilty plea and clear record, and it would bring the starting point down to 10 months’ imprisonment.

60.  Given the old age and the health condition of the defendant, I shall give a further reduction of 2 months.

61.  For the reasons given, on Charge 1, I sentence the defendant to 8 months’ imprisonment.

62.  The defendant is disqualified from driving for 3 years.

63.  I also order the defendant to attend and complete a driving improvement course at his own cost under section 72A(1).  The period for which the defendant is to be disqualified is a period of 3 years or until he has attended and completed the course at his own cost, whichever is the later.

64.  On Charge 2 and 3, a financial penalty is appropriate and I impose a fine of $2,000 on each charge.

65.  The total fine is $4,000.

(Discussion with defence counsel)

66.  ...taken from bail.