HKSAR v. LI TAI WAI

DCCC 619/2021

[2022] HKDC 947

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 619 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Charges

1.  The defendant pleaded guilty to two charges:

(i)  Causing death by dangerous driving; and

(ii)  Causing grievous bodily harm by dangerous driving.

The Accident

2.  The accident occurred in Chun Yeung Street, which was a one-way road with three lanes.  Two lanes were occupied by stores together with street activities, only leaving the middle lane for traffic.  Speed limit was 50 kilometres per hour.

3.  At the material time, weather was fine and the lighting condition was sufficient, road surface was dry, traffic condition was light.  Foot traffic was crowded with pedestrians.  Some were walking across Chun Yeung Street.

4.  On 24 June 2020 at about 6.21 p.m., the defendant was driving a taxi and dropped off a passenger at a hotel.  The defendant continued driving in the middle of the lane and suddenly accelerated in speed and rammed towards the pedestrians walking on the road.  The taxi then swerved to the left, colliding into a stationary private car.  The collision pushed the car forward for about two car spaces.  More pedestrians were struck before the taxi finally came to a stop.

Death and Injuries

5.  At the material time, Madam Fung, aged 88, the deceased, was on a wheelchair pushed by her domestic helper across the street.  The deceased was hit by the front end of the taxi.  She sustained head and pelvic injury and suffered from haemorrhagic shock after the accident.  She passed away 43 days after the accident.

6.  Apart from the deceased, another five pedestrians were injured as a result of the accident.  In particular, grievous bodily injuries were sustained by PW2 to PW4.

7.  Madam Li, 66, PW2, was a pedestrian walking in the same direction with the traffic and was knocked down by the taxi from behind.  She suffered from around five-centimetre hematoma on her left forehead, tenderness on her chest walls, swelling of left knee with multiple abrasions on four limbs.  X-ray showed a fracture in her left eighth rib and a posterior ligament fracture in her left knee.  She was hospitalised between 24 June 2020 to 15 August 2020.  Upon discharge, she was able to walk with a stick independently.

8.  Madam Yu, PW3, was a pedestrian facing oncoming traffic. She was hit by the front end of the car and rolled underneath the car.  She suffered tenderness over her anterior chest, abrasion over right hip, knees and left elbow.  She has two-centimetre laceration wound on her left elbow.  X-ray showed fractures over the anterior tips of the left sixth to eighth ribs with mild displacement.  Suturing was performed for the elbow laceration.  She was hospitalised for three days.

9.  Madam Yip, aged 41, PW4, was a pedestrian walking in the same direction with the traffic and her left knee was hit by the car, causing her to fall and pushed forward for about one to two metres.  She suffered tenderness over her left knee and right ankle and a four-centimetre hematoma over right thigh.  The range of movement of her left knee was reduced.  X-ray show a fracture of tibial plateau on her left knee. She was hospitalised for about six days.

10.  Madam Chan, aged 52, (PW1), was a pedestrian facing the oncoming traffic.  She was hit by the front of the taxi and suffered tenderness at the lower sacrum on her right lower limb with decreased motor power and diminished pin-prick sensation.  She was hospitalised for two days.

11.  PW5, Mr Silverio, aged 43 was a pedestrian walking in the same direction with traffic.  He was hit by the debris.  He suffered mild tenderness over the left chest wall and bruise over the left knee.  He was also hospitalised for three days.

Investigation and Arrest

12.  The initial inquiry at the scene, the defendant stated:

(i)  the taxi lost control and accelerated forward;

(ii)  the brake of the taxi was not responsive so he swerved to the left to avoid the pedestrians.

13.  The accident caused extensive damage to the front left of the taxi and the right rear end of the car.  No skid mark was found at the accident location.  Based on a vehicle examination conducted on 26 June 2020, the taxi was free from any mechanical defects.

14.  On 30 June 2020, the defendant was arrested for dangerous driving causing grievous bodily harm.  Under caution, the defendant said at the material time he only just started off and travelled for about two to three car length.  His speed was about 10 kilometres per hour.

15.  As the taxi did not appear to have any mechanical defect, he had no idea why the taxi suddenly accelerated in speed and he was unsure whether he responded by placing his foot on the brake pedal.

16.  On 30 September 2020, the defendant was arrested for dangerous driving causing death in relation to the deceased and one count of dangerous driving causing grievous bodily harm.

17.  Under caution, the defendant said that he was a night shift driver from 5 pm to 5 am.  He had 30-odd years’ driving experience and his physical condition on that day was normal.  He was unsure why the taxi suddenly accelerated.  At that time, he looked to the front of the taxi and he applied the horn once or twice, he had applied the break to stop.

Criminal Record

18.  Between 1985 to 2016, the Defendant has 5 previous conviction records, they were all related to gambling offences.

19.  Traffic conviction records :-

(1)  The Defendant obtained his driving licence in 1970.

(2)  He has attended the driving improvement course in 2011 and on two occasions ordered by the Transport Department that he completed in 2012 and 2015.

(3)  He has 3 occasions of speeding record and others of failing to comply with traffic signs and dropping off passengers in restricted zone.

Mitigation

20.  The defendant is 71 years of age.  He was divorced in 2021.  He has two grown up children aged 36, a manager, and aged 34, a hotel staff respectively. They are both in court to support the defendant today.  They also said that the separation from his wife has a big impact on him emotionally.  The church also wrote a letter to this court to plead for leniency on his behalf.

21.  The defendant has been a taxi driver since the age of 28.  In another word, he has been a taxi driver for 46 years.  There is no traffic record of careless driving or dangerous driving.  The present incident has taught him a bitter lesson.  In any event, there was no evidence of speeding, drug driving or drink driving.  It is unlikely that the defendant will reoffend again.

22.  The defendant is very remorseful for committing the present offences. He sincerely apologised to all the victims and their families concerned. 

Sentence

23.  The maximum sentence for ;-

(a)  Dangerous driving death is 10 years’ imprisonment and a fine at level 5;

(b)  Dangerous driving causing grievous bodily harm is 7 years’ imprisonment and a fine at level 5.

24.  As the defence rightly pointed out that the sentencing principle in relation to dangerous driving causing death is also applicable to dangerous driving causing grievous bodily harm  and that is the case of Secretary for Justice v Lee Yau Wing, CACC 282/2012.

25.  In the present case, there was one death and 3 really serious injured pedestrians.

26.  It has been emphasized in many cases that a vehicle can maim or kill.  The consequences of dangerous driving can cause great anxiety and depression to the victims and their families concerned.  Driving a vehicle comes with great responsibility to the road user, including the pedestrians.

27.  As said in the case of the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 610 that :-

“in assessing the overall seriousness of a crime, culpability is often the dominant factor.”

28.  In Cooksley [2004] 1 Cr App R (S), there were four categories of culpability and they were also adopted in Hong Kong :-

a. Where there are no aggravating factors

b. Intermediate culpability

c. Higher culpability

d. The most serious culpability

29.  In Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771, the Court of Appeal summarised the sentencing principles and set out 13 aggravating factors in dangerous driving causing grievous bodily harm.

30.  In Cooksley, it also said that even without the aggravating factors, the starting point is 12 – 18 months.  The sentence will progress as culpability becomes more serious.  A starting point of 2 to 3 years in intermediate culpability.

31.  The defence accepted that it was as a result of the defendant’s driving manner that resulting one death and five casualties. 

32.  From the CCTV footage, I can see that the road condition was busy as two lanes on the road were taken up by the stalls or stationary vehicles and effectively operateed like a street front wet market.  A lot of pedestrians were walking along the road, some from one side to the other side of the road to do their shopping.

33.  The accident occurred in a busy area when the defendant’s taxi hit a stationary heavy duty Benz which was being pushed forward and ploughed into a group of pedestrians.  The road condition simply did not provide any space for the pedestrians to avoid the accident.

34.  Today, the prosecution informed this court that four out of the five casualties have been fully recovered except PW2 who still needs to attend follow-up sessions with the orthopaedic in Eastern Hospital. 

35.  To this end, I consider that the culpability of the defendant falls into the intermediate range as stated in the case of Cooksley. 

36.  The aggravating factors include the defendant is a professional driver, there were one death and five injured pedestrians.  Three out of five were in serious grievous bodily harm conditions, one of them is still receiving orthopaedic treatment. 

37.  The accident occurred in a busy and crowded area where there was effectively one lane for traffic.  Foot traffic was busy.  When I pass sentence on the defendant, I bear in mind that the defendant’s timely plea, no evidence of speeding, absence of previous similar record.

38.  It will be the first time for the defendant to serve a custodial sentence, especially in his old age.  It is not an easy task for this court to impose a custodial sentence on someone like himself.  However, the court has a duty to send a clear message to the public that driving dangerously on a road comes with a heavy sentence.

39.  With all this information in mind, I consider that the appropriate sentence for :-

(i)  Charge 1, the starting point is 33 months reduced to 22 months after one-third discount;

(ii)  Charge 2 is also a starting point of 33 months reduced to 22 months after one-third discount;

(iii)  Both sentences are ordered to run concurrently. That means the defendant is to serve a total sentence of 22 months.

40.  In both charges, I also order the defendant to be disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 5 years and 3 years respectively, 5 years for Charge 1, 3 years for Charge 2.  They are also ordered to run concurrently.

41.  The defendant is also ordered to attend and complete a mandatory driving improvement course at his own expense within 3 months for both charges prior to the end of the disqualification period, failing which the defendant may be subject to a criminal offence.