HKSAR v. TSOI LEUNG CHIT

CACC 88/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 88 OF 2012

(ON APPEAL FROM DCCC NO. 1234 OF 2011)

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JUDGMENT

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1. The Applicant was convicted on his own plea one count of causing death by dangerous driving. He was sentenced to imprisonment for 3 years and disqualified from driving for 10 years by Judge Browne. The learned judge also ordered that the Applicant must at his own expense pass a test of competence after the expiration of the period of disqualification.

Background

2. The accident occurred at about 11.27 pm on the 6^th May 2011, at Castle Peak Road near Tai Lam Castle Peak.  The Applicant was the driver of a public light bus and the deceased was a 23 year old cyclist.   Castle Peak Road is a divided dual carriageway with two lanes in each direction.  The lanes were separated by broken white traffic lane lines and each lane was about 3.6 metres wide.  The speed limit was 70 kilometres per hour.

3. At the time of the accident, the weather was fine and street lighting was good.  The road surface was dry and in good repair and traffic density was light.  The Defendant was driving in the direction of Tuen Mun and the deceased was riding together with 10 friends.  They were all on the inner lane and travelling in the same direction as the Applicant.  The bicycles in the group were all equipped with front and rear lights and they were all switched on at the time.  The deceased was riding in the middle of the pack at a speed of about 50 kilometres per hour.  He was travelling in a straight line and wearing a helmet.

4. This is what the Judge said:

“7. The passengers on the minibus noticed the cyclists when they were some 100 metres ahead of them. The defendant’s vehicle was travelling at a speed of around 96 to 118 kilometres per hour, it did not slow down or sound its horn but continued to move forward. When the defendant’s vehicle came within about 30 metres of the bicycles, one of the passengers on the public light bus shouted out. The defendant then began to brake but still rammed into the rear of the deceased’s cycle. There were skid marks 77 metres long left by the defendant’s vehicle and white smoke was emitted during the braking. …

11. …  the forensic evidence revealeded that the accident could have been avoided had the light bus been travelling at or under the speed limit of 70 kilometres per hour….”

5. Mr Norton Pang, appearing for the Applicant, submitted that in describing the speed as “around 96 to 118 km/h” the learned judge was insufficiently precise.

6. The summary of facts recorded that :

(1)   The passengers on board the public light bus said that the light bus was travelling at a speed of around 96-118 km/h.  This is supported by the skid tests by the forensic examiners;

(2)   The record of the speed display device installed on the public light bus revealed that the bus was travelling at 123 km/h; and

(3)   The Applicant told the police that he was driving at a speed of about 108 km/h.

7. At trial, the Applicant had agreed the summary of facts.  Counsel appearing for him at trial, not Mr Pang, did not take issue with the range of estimates of speed.  Nor did he submit that the Applicant should be sentenced on the basis of the lower speed.  It is common sense that estimates of speed would vary.  One might think that the Applicant’s own admitted speed was unlikely to be higher than the actual speed.  Also, most probably the light bus would not have travelled at an unvarying speed.

8. In his reasons for sentence, the learned judge said:

“15. In my view, this was an appalling piece of driving and it put it into the most serious category…..”

Later in his reasons he said:

“21. In my view, the defendant in this case demonstrated a conscious disregard for the traffic conditions and it is that that puts this offence into the more serious category. An innocent life has been taken away and good character and remorse may count for very little as against that. The main determining factor is culpability.”

9. Mr Pang submitted that this case does not falls in the most serious category.  We agree; had it belonged to the most serious category, the appropriate sentence would be substantially higher.  In Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, on a review of sentence, the then maximum term of 5 years, was imposed in a case which fell within the most serious category. 

10. Here, what we have to consider is whether the starting point of 4 years and 6 months is manifestly excessive.

11. Mr Pang has referred us to various authorities on the point.  Only two of them need to be discussed.

12. The first is HKSAR v Chan Kwok Fai [2010] 2 HKLRD 25 which involved a KMB bus driver whose bus overturned when he took a sharp corner at a roundabout at an excessive speed.  The speed limit was 50 km/h.  All 35 passengers were injured, two of whom died.  The Defendant was 37 years old and had a clear driving record.  He was sentenced to 4 years and 8 months imprisonment.  The trial judge had adopted a starting point of 5 years and gave him 4 months discount for good record and character.  He was also disqualified from driving for 3 years.  His sentence was reduced on appeal by this court to 4 years.  The court was told that the safe speed was 30 km/h, and the Defendant was travelling at about 53 km/h. 

13. The second case is the Secretary for Justice v Lau Sin-ting [2010] 5 HKLRD 318, where a newly licensed 19 years old driver was convicted on her own plea of dangerous driving causing death and was sentenced to 10 months imprisonment and disqualified from driving for 2 years and 6 months.  Two of the passengers were killed.  She herself had sustained multiple broken bones and brain injury resulting in a coma lasting 18 as well as necessitating numerous operations.  She suffered permanent mental and physical injuries with impaired vision, hearing and thought processes.  On a review of sentence, this court held that in the very special circumstances of the case the appropriate starting point would be 2 years and 6 months.

14. Lau Sin-ting depended very much on its own facts and provides no general guidance.

15. Here, the Applicant was not only travelling at an excessive speed, more importantly, he was not paying attention. He did not see the cyclists.  The careless driver in Chan Kwok Fai took a turn at an excessive speed.  It was a less culpable case. Moreover, as well appear, the Applicant’s traffic record cannot be described as good.  In all the circumstances, we cannot agree that a sentence of 3 years, from a starting point of 4 years and 6 months, is manifestly excessive.  So we would not disturb that part of sentence.

16. However, the learned judge also disqualified the Defendant from driving for 10 years.  Mr Pang submitted that this is manifestly excessive.  Mr David Chan, Assistant Director of Public Prosecution accepted that 10 years disqualification seems manifestly excessive.

17. The purposes of disqualification is forward looking and preventive rather than backward looking and punitive.  See the case of Secretary of Justice v Hung Ling-kwok [2010] 4 HKLRD 365.  In that case, this court, following the decision of Court of Appeal in R v Cooksley [2003] 3 All ER 40, provided guidelines for disqualification.

18. Two of the categories indicated in that case are relevant. They are:

(1)  Disqualification between 3 and 5 years is required where the facts of the case and the defendant’s record show that the defendant tends to disregard the rules of the road, or drive carelessly or inappropriately;

(2)  Disqualification between 5 and 10 years is required where the facts of the case and the defendant’s record show that he represents a real and continuing danger to other road users.  

19. The Applicant’s traffic record included two convictions for careless driving, two convictions for failures to comply with traffic signals, one of driving with excessive speed and one of not taking all reasonable precautions to ensure safety of passengers. 

20. In all the circumstances, we believe a disqualification for 5 years to be appropriate, and would order accordingly. To that extent, we give leave to appeal and substitute 5 years of disqualification for 10 years.  We also keep that part of the order, which requires the Applicant to take a test of competence after the expiration of the period of disqualification.