SECRETARY FOR JUSTICE v. LEUNG CHIU YU

CACC248/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 248 OF 2011

(ON APPEAL FROM DCCC NO. 1029 OF 2010)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 27 February 2010 there occurred a tragic accident at a pedestrian crossing on Chi Cheong Road, Sheung Shui as a result of which a boy aged four years was killed.  He was knocked down at or near the crossing by an Audi vehicle driven by Leung Chiu Yu.  Leung was charged with dangerous driving causing death but, on 3 June 2011, after trial before Judge Browne in the District Court, was convicted of the alternative offence of careless driving contrary to s 36(10) and 38(1) of the Road Traffic Ordinance, Cap 374.  The sentence imposed was a fine of HK$4,000.

2.  We have before us two applications:

(1)   an application by Leung for leave to appeal that conviction; and

(2)   an application by the Secretary for Justice for review of sentence pursuant to s 81A of the Criminal Procedure Ordinance, Cap 221, for which leave was granted on 24 June 2011.

The evidence

3.  The accident occurred at about 1:40 pm on a Saturday.  The weather was fine and dry.  The road in question runs west to east and Leung was driving in an easterly direction.  In the direction he was driving, the road takes a gentle curve towards the right.  Along the curve is a pedestrian crossing.  Well before the crossing is a sign warning motorists of the pedestrian crossing ahead and there are traffic lights at the crossing, visible to east-bound traffic from about 95 m before the crossing.  There are also “green–man” traffic lights for the benefit of pedestrians.  These lights are stationed on either side of the road as well is at its centre.  At the centre of the road, where the crossing sits, are two bollards between which is an open waiting area, or reservation, for the pedestrians; open in the sense that a pedestrian is able to walk directly across the road at the crossing without any fencing or other impediment at the central reservation.

4.  The evidence about what transpired is in many respects not clear.  The boy, Wei Chung-on, lived in Sheung Shui with his sister aged 8 years and parents.  A Mdm Li had just visited them with her 8 year-old son.  She, her son, as well as Chung-on, his mother and sister all left Chung-on’s home together, walked along Chi Cheong Road and intended to cross from south to north at the pedestrian crossing.  Chung-on’s mother took a slight detour to put something in a refuse bin.  A number of people commenced walking across the crossing, including the three children to whom I have referred, who walked ahead of their respective mothers.  No one was holding Chung-on’s hand.  It would appear that the two elder children as well as a number of adults stopped at the central area of the crossing but that Chung-on did not.  That is when he was struck by Leung’s vehicle.

5.  A couple of pedestrians gave evidence as did the mother and Mdm Li, several police officers who attended the scene after the accident and also Leung and one of the passengers in his car (his sister) and an expert on his behalf.

6.  We have a very detailed account of the evidence in the Reasons for Verdict.  It is necessary for present purposes to refer to only one or two parts of that evidence.

7.  Mdm Li’s evidence was described by the judge as confused and confusing, which in the circumstances was not intended as any criticism of her whatsoever.  The evidence suggests that everything occurred very quickly and no doubt Mdm Li was much traumatized by what happened to the boy.  But there is one aspect of her testimony which accords with what Leung said when he was first spoken to by the police who attended the scene of the accident and which is not contradicted by any of the other evidence.  It is that when the children reached the middle of the crossing and she saw Leung’s vehicle, she told the children not to cross, that there were vehicles coming.  The two elder children stopped but Chung-on did not.  He continued and then, as the judge described her evidence, the boy “changed his route and walked to his right quickly along the double white lines in the centre of the carriageway.  … he took one step away from the double white lines and was hit on his left leg, fell to the ground and ended up with his head pressed under the front wheel of the car and his body underneath the vehicle pointing towards the rear offside wheel.”  After the vehicle was lifted off the boy, it was put down on the road and rolled backwards coming to a halt on the pedestrian crossing.

8.  This, in essence, accords with much of what Leung told the police at the scene of the accident, save that Mdm Li said that Leung was driving fast and Leung said he was not.  What Leung said to the police was as follows:

“At the time I was driving forward at a speed of below 50 km/h. I was very sure the traffic signal was green in colour, I was permitted to drive past. But a group of parents and children, 3 to 4 people, walked from the right side to the left side without complying with the traffic light signal. At this moment I looked to the right and braked my car as I feared that they would cross the road carelessly. Then they stopped inside the safety island. I started moving my car again without acceleration. After my car completely moved past the pedestrian crossing, a shadow came out from left to the right. I just braked my car. I together with my father lifted my car up and moved it backward … .”

9.  It is relevant to note that there were no skid marks on the road.

10.  The judge concluded that there was no reliable evidence as to what happened to Chung-on after he reached the centre of the crossing.  The statements from the prosecution witnesses in this regard were conflicting and it was not possible to determine from the evidence whether the lights were in favour or against Leung when he approached the crossing.  Some of the evidence suggested that they were against him and even his own comments immediately after the accident appeared to be ambivalent in this regard.  Clearly, the judge remarked, everything happened very quickly.  He noted that at the time of or just before the accident, there were other people, apart from the children, gathered at the centre of the crossing so that Leung’s view of anyone on the east side of the road or of the crossing was, because of the presence of those people and the curve in the road, likely to have been obstructed.

11.  Leung’s testimony was that when he was 2 to 3 car lengths from the crossing he noticed that the lights were green in his favour.  He was travelling at only 20 km hour, he said, and slowed down further.

Findings

12.  In all the circumstances, the judge could not be sure that the lights controlling vehicular traffic travelling in an easterly direction were not showing green at the relevant time.  Further, he said – indeed, he said it twice – there was no evidence of excessive speed on the part of Leung.  It is not clear whether by this the judge meant that be the speed limit was not exceeded or that there was no evidence that Leung was driving at speed greater than that which was wise in the circumstances.  Given that there was evidence – whether reliable or not – that he was driving fast and given as well the implication in the findings that he took insufficient care in his driving beyond the pedestrian crossing it seems to us that the judge must have meant that there was no evidence of exceeding the limit. 

13.  It is entirely understandable in the circumstances that the judge felt the evidence inadequate upon which to conclude that Leung drove in a way that fell far below the standard which would be expected of a competent and careful driver, the test for dangerous driving.  But, since we are faced with an application for leave to appeal the conviction for careless driving, the basis upon which that conviction rested now falls for examination.

14.  The judge noted Leung’s evidence that he only looked at the lights for the first time when he was about 80 m from the crossing, even though those lights are visible from 95 m away and it is clear from his concluding remarks that he was critical of Leung’s failure to notice the lights earlier.  He remarked that beyond the crossing, going east, “the road bends slightly to the right at that point [and that] anyone on that side of the crossing would have been obstructed by the persons gathered in the centre of the crossing, the traffic lights and the yellow bollard at each end of the centre of the crossing.

15.  He referred in some detail to the commonsense provisions of the Road User’s Code insofar as they warn drivers about the unpredictability of conduct by the young in or near roads and of the particular care which should be taken in relation to pedestrians and at pedestrian crossings.  He pointed out that the Code reminded drivers that young children have difficulty in concentrating and with appreciating the dangers of the road; that small children are more easily hidden by roadside objects and by other pedestrians; and that children may step out or run onto the road when you do not expect them to.  He added that that Code also requires persons with children, whenever on or near a road or pavement, always to hold their hands and walk between them and the traffic and to hold their hands when crossing roads.

16.  He noted as well that the Code further provides that, at green-man crossings, a motorist may go forward when the green light is in his favour if there are no pedestrians on the crossing and that a prudent motorist should take into account the dangers that obviously present themselves when children are on the crossing.  The judge remarked that it was relevant that there was nothing obstructing Leung’s view of the crossing and that he did not use the horn to warn pedestrians of his approach.  He also said that: “a prudent motorist would take into account that the view of children on the crossing might be obstructed by adults using the crossing and the objects in the middle of the crossing.”

17.  He was satisfied that Leung had failed to exercise the degree of care required of a competent and careful driver.

The appeal against conviction

18.  The grounds of appeal against conviction are that there was no finding of excessive speed or that Leung had driven against a red traffic light signal; that since the movements of Chung-on were not clear from the evidence, the accident may well have been unavoidable: that there was no specific finding as to what exactly Leung had done or failed to do that rendered his driving careless; no finding that he did not slow down sufficiently or pay sufficient attention and, as to the failure to use the horn, this, it is suggested, cuts two ways since the sounding of a horn might itself make children move unpredictably.

19.  Considerable attention was devoted by Mr Ma on behalf of Leung to the suggestion that there was nothing in the Reasons for Verdict to indicate or to indicate sufficiently to what conduct or omission the finding of carelessness was directed.  We agree that it would have been more helpful for the judge to state in terms what it was that Leung failed to do, especially what Leung failed sufficiently to do after he entered and then drove past the pedestrian crossing; particularly whether he found that Leung ought to have then seen the boy but, negligently, did not; and what he made of Leung’s version of events given to the police immediately after the accident.  But we must take care to read Reasons for Verdict realistically and not as if they were intended to be statutory instruments.  Contrary to Mr Ma’s submissions that there were in fact no findings, we think it is sufficiently clear that there were and we are able safely to discern what they were.

20.  What the judge was saying was that Leung failed to take sufficient cognizance of the risks attendant upon the presence of children at the central reservation and of the fact that because of the curve in the road and the presence of adults in the group, his view beyond the pedestrian crossing was obscured so that the care to be taken was acute, whereas the care in fact taken fell below that requirement; that Leung drove beyond the crossing assuming that the danger was over, when he ought not to have made that assumption.

21.  We are not at this stage required to address the question of causation; it is merely to determine whether the judge’s finding that there was a lack of due care and attention in the circumstances which presented this is an impeachable finding.  We do not think that it is.  Whether a person drives with due care and attention is always context and fact specific and we do not think it is too much to demand of a driver who approaches a pedestrian crossing on which there is a child or a group of children mixed amongst other pedestrians in circumstances in which, for whatever reason, the driver’s view beyond the group is obscured, that he must exercise the most particular caution both before and as he passes the group.  No special expertise is required to know that children are often not conscious or sufficiently conscious of the requirements of road safety; that they are prone to be oblivious to the dangers that road traffic presents and, accordingly, a driver who does not approach a pedestrian crossing in such circumstances with the greatest care will readily render himself liable to conviction for careless driving.  This, it is obvious to us, is precisely what the judge found was failing in this driver’s manner of driving.  That is not to say that Leung bears the sole blame for what transpired.  No one suggests that.  It is not even to say that he bears the major blame.  It is merely to say that he failed to exercise the care required of a competent careful driver in the circumstances with which he was faced.

22.  We see no basis upon which to hold that the conviction for careless driving was unsafe or unsatisfactory and, accordingly, the application for leave to appeal against that conviction is dismissed.

The Review

23.  At the time of sentence, the applicant was aged 27 years, a person of good character employed as a second officer for Cathay Pacific Airways.  He obtained his driving licence in Australia in 2006 and his Hong Kong licence in 2008.  Three weeks prior to the incident with which we are concerned, he had committed a speeding offence: driving in excess of a speed limit by more than 15 km/h but not more than 30 km/h; and was fined $450.

24.  The judge was presented with a number of letters from his employer, his parish priest and others, each of whom spoke highly of him and also spoke of the significant degree to which the accident had impacted upon him emotionally.

25.  The Reasons for Sentence are brief.  They simply say that the maximum fine for careless driving is $5,000 and that a fine of $4,000 is imposed.

26.  The maximum penalties for careless driving or a fine of $5,000 and imprisonment for six months.

27.  The application is advanced on the basis that the sentence imposed was manifestly inadequate and/or wrong in principle in that the judge, so it is said:

(1)   failed to give any regard to the consequence of Leung’s careless driving, namely, the death of Chung–on;

(2)   failed to have sufficient regard to the fact that the collision occurred at a place where the utmost care is required and that there were children on the crossing; and

(3)   failed to consider sentencing options other than that of a fine.

28.  It is said that in the circumstances the judge imposed a sentence which was unduly lenient as it fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate, which is the test applied upon applications for review of sentence.

29.  It is argued on behalf of the Secretary that the judge failed to have regard to the principle that although culpability of the manner of driving is the prime consideration in sentencing in cases of this kind, consequences are a relevant consideration, a fact which the judge seems to have ignored.

30.  This was a case which lasted several days and it is difficult to accept that this experienced judge was not alert to the question of consequences.  Again, it would have been helpful had the judge indicated whether or not he took consequences into account.  It is likely, however, that the brevity of the Reasons for Sentence flows from the finding of careless, and not dangerous, driving, the judge assuming that the facts rather spoke for themselves.

31.  Then it is said that the judge has not turned his mind to punishments alternative to that of a fine; for example, a short term of imprisonment, a community service order and/or disqualification.  We are not prepared to assume that this experienced judge did not turn his mind to the question of a period of disqualification or to penalties other than a fine but the fact is that he has not stated why, in light of the circumstances of the offence and its consequence, he did not consider any course tougher than the one he adopted to be appropriate.  It would have helped for us to know, for example, whether he found that Leung must or ought to have seen the boy after he passed the crossing or, as was open for him to say, that he was unable to make a finding one way or the other in that regard.  That being so, we must proceed on an assumption which is favourable to Leung.

32.  It is said by Mr Lee for the Secretary that this case calls for a sentence of imprisonment, either effective or suspended.  We note that the maximum term of imprisonment for a case of careless driving is six months.  Our distillation of the evidence and of the judge’s Reasons for Verdict illustrates that the degree of carelessness found by the judge was at a low rung of the ladder of culpability.  That is not to ignore the tragic outcome of this accident but care must be taken to be fair and accurate about the facts and the nature of Leung’s driving as revealed by the evidence accepted or apparently accepted by the judge; and as revealed by the judge’s findings.  If, as must be assumed, the judge accepted Leung’s account to the police, then it necessarily follows that Leung was indeed careful as he approached the crossing and as he crossed it but not quite careful enough as he departed it.  On that basis, the suggestion of a sentence of imprisonment is not realistic despite the tragic result of the accident.

33.  The fact that the primary consideration in driving offences is the culpability of the impugned course of driving does not derogate from the fact that the consequences of that driving are relevant for sentencing purposes.  There is obvious sense in the remarks made by Blair-Kerr J in Chan Kwai–lai v The Queen [1968] HKLR 31 at 42 that whilst the fact that a driver has killed someone is not an element in the offence of careless driving, nonetheless:

“ … What the fact of death does is to throw into proper perspective the reason behind the enactment of various provisions relating to careless, dangerous and drunken driving, speeding, failing to give preference to pedestrians on road crossings, failing to obey various lawful orders in regard to stopping when approaching major roads and so on. These provisions have one object: to reduce the risk of death and injury on our roads. Yet, how often do we all forget the intensity of the potential danger to persons or property which is created by careless driving.”

34.  In a number of cases in England and Wales the point has been made in relation to careless driving which causes death that whilst culpability remains the primary consideration, the sentencing judge should nonetheless not close his eyes to the fact, where it pertains, that death has resulted : see R v Morling [1998] 1 Cr App (S) 421; R v Simmonds [1999] 2 Cr App R 18; R v King [2002] RTR 1.  In any case of careless driving, a sentencing court will have regard to the potential consequences of the piece of careless driving under consideration – whether, for example, there were other vehicles on the road, or pedestrians about who were put at risk, and so on.  That being so, there is no logic in ignoring for sentencing purposes the actual consequence of an act of careless driving.

35.  What weight is to be given to that consequence depends on the nature of the consequence and all the circumstances of the case. In each of the authorities to which we have been referred, the act of careless driving itself was a particularly serious one of its kind.  In this case, as we have indicated, the active careless driving was not of that magnitude of culpability. Furthermore, and importantly, in each of the authorities to which we have been referred by counsel on behalf of the Secretary, it is noticeable that culpability was all one-way; that is to say, the driver guilty of careless driving was solely at fault.  In this case, that cannot be said.  It is a sad fact that at the particular moment immediately preceding the accident, the child was unattended and, we must assume for present purposes, simply went on beyond the midway point of the crossing onto its second half or into the road itself.  It goes without saying that one does not in any degree blame a child in such circumstances for doing so: children act in that way, but it is merely to say that the applicant can hardly be said to have been solely culpable for the accident.

36.  That said, it is apparent from the findings in the court below that Leung did not drive with the very particular care that was required in the circumstances and it is clear as well that the consequences flowing partly from the fact of careless driving were severe indeed and there is a need to impart a message about the acute care needed at pedestrian crossings, especially when children are about.  We do not think these factors were adequately recognised by the totality of the orders made by the judge, for which reason we are of the view that the penalties imposed are liable to review.  The more difficult question is what that penalty should be.

37.  The nature of the careless driving was far from the bracket of the worst of its kind, of which the authorities to which we have been referred provide examples.  The applicant is a person of exemplary character who, together with his family, has suffered considerably, and will continue to be traumatized, by what happened.  He has before him a promising career in which he has worked hard.  We have concluded that the circumstances as a whole do not call for a sentence of imprisonment.

38.  We recognise that disqualification is primarily forward-looking in that it seeks to protect the public from the risks posed by the offender.  In this particular case, the applicant was speeding only three weeks before this accident and on this particular occasion his neglect, though not high on the scale of carelessness, was carelessness in the vicinity of pedestrians.  We think that in all the circumstances a period of 12 months’ disqualification was called for.

39.  Accordingly the application for review is allowed and in addition to the fine imposed by the court below, we order that Leung be disqualified from driving any class of vehicle for a period of 12 months.