ATTORNEY GENERAL v. CHUNG YIM CHOW

Headnote

                Causing death by Reckless Driving - Sentence - Principles - Reg. v. Boswell (1984) 3 All E.R. 353 followed.

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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McMullin, V.-P. :

1. On the 28th of May we allowed an application by the Attorney General for review of sentence reserving our reasons for doing so. These we now give.

2. CHUNG Yim-chow was convicted by a magistrate on the 7th March, 1985 of causing the death of an elderly woman Madam WONG Sam by reckless driving. The magistrate imposed a fine of $3,000 and disqualified the respondent from holding a driving licence for all classes of vehicles for 12 months from the date of the trial. Leave to apply for review of sentence was granted on the 28th March, 1985 and the application was filed on the 4th of April. The grounds of the application are that the sentence is manifestly inadequate and also wrong in principle in that a term of imprisonment ought to  have been imposed for such an offence.

3. The accident occurred on the 25th October, 1984 at about 8:30 in the morning. The respondent, who was employed by a fish-vendor as driver of a light goods vehicle, was driving that vehicle loaded with some tubs of fish in a roughly west to east direction along a stretch of the Pokfulam highway between the University of Hong Kong and Queen Mary Hospital. This is a dual carriageway with two lanes of traffic going in each direction. The weather was fine, the road was dry and the respondent was travelling in the outer traffic lane.

4. At a certain point along this highway there is a pedestrian crossing which traverses the entire highway from the southern or ocean side of the highway to the northern or hospital side thereof.

5. As the respondent approached this crossing, Madam Wong, her husband and a small child of 2?years whom she was carrying, had made their way safely across the pedestrian crossing from its southern border to a traffic refuge in the centre of the road.. Two buses which had been travelling ahead of the respondent in the inner lane drew up at the pedestrian crossing, one behind the other, to permit these people to cross over to the pavement on the northern border of the highway. This crossing is marked by three traffic beacons. These are flashing yellow lights, one situated at either border of the crossing and one on the centre refuge. They were in operation at this time and the road approaching the pedestrian crossing is straight. Traffic was light, weather fine and the road dry.

6. When the buses pulled up the three pedestrians moved out upon the crossing and almost immediately thereafter the respondent ran into them and knocked them down. The old lady received injuries from which shortly afterward she died, the child suffered a fracture of one of his legs and the husband of Madam Wong had some slighter injuries.

7. Subsequent police investigation revealed skid marks belonging to the respondent's vehicle which extended for about 18 metres before the crossing to a point a few feet beyond its further border.

8. Immediately before the accident the respondent had been driving at a speed of 36 or 37 miles per hour. There was a speed limit of 30 miles per hour in force in the area.

9. When passing sentence the magistrate said:

"Defendant was a reasonably inexperienced driver having held a licence for only one year. ........... Because the speeding was not deliberate and he had a good record I considered a custodial sentence to be inappropriate. Taking into account the maximum fine which can be imposed of $12,500.00, and that there was no deliberate recklessness other than the modestly excessive speed, I came to the view that a fine of $3,000 coupled with one year's loss of driving rights would be sufficient penalty."

10. It must be said at once that if the magistrate intended by what he said to hold that the inexperience of the driver was a mitigating factor that could not be correct. The want of experience is something that should put a prudent driver rather upon his guard in circumstances where caution is to be observed rather than relieving him of the need for such caution. Further, it was not correct to say that the respondent had a good record if that was intended to refer to his record as a driver. He had held a licence for only 10 months prior to the accident and had been fined $200 for careless driving about l month prior thereto.

11. Mr. McNamara for the Crown begins by pointing out that this case is the first to be taken under Section 36 which came into force only a couple of months prior to this accident. Under the former Road Traffic Ordinance Cap. 220 (now repealed by Cap. 374) a person convicted under Section 11(3) with causing death by dangerous driving was liable on summary conviction to a fine of $2,000 and imprisonment for 12 months. Under the present section causing death by reckless driving attracts upon summary conviction a fine. of $12,500 and imprisonment for 2 years. The mandatory disqualification period for subsequent offences has increased from one year to two years.

12. Mr. McNamara argues that under the law as it formerly stood in Hong Kong, and as it stood in England prior to the introduction of the offence of reckless driving casing death by the Criminal Law Act of 1977, the courts, in both territories, acknowledged that there was a distinction to be made where the offence charged was dangerous driving causing death between cases: "Where the accident is caused by an error of judgment or foolishness and ........ where the accident is caused by the deliberate taking of a risk or driving in an irresponsible manner. (per Briggs, C.J. in Mak Kau ⁽¹⁾. A similar view was expressed by Lawton L.J. in R. v. Guilfoyie ⁽²⁾, a case under the older law, where he said:

"Cases of this kind fall into two broad.. categories; first, those in which the accident has arisen through momentary inattention or misjudgment, and, secondly, those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness."

In Mak Kau, Briggs, C.J. held that custodial sentences would only be appropriate in the case of persons who had caused the accident "by the deliberate taking of a risk or driving in an irresponsible manner" - the second of his two categories. Similarly in Guilfoyle Lawton L.J. would restrict custodial sentences to offenders who fell within the second of his two categories where, a little later on after the passage already quoted, he says:

"For those who have caused a fatal accident through a selfish disregard for the safety of other road users or their passengers or who have driven recklessly, a custodial sentence faith a long period of disqualification may well be appropriate ......"

Mr. McNamara argued that the older offence of dangerous driving embraced a wide spectrum of possibilities ranging from momentary inattention all the way up to recklessness. Since it is conduct of the latter kind which is covered by Section 36 of the Ordinance, that must mean, he says, in the light of the greatly enhanced penalties, that where such a case has been proved against the defendant a custodial sentence must almost be inevitable.

13. He relies principally upon the decision of the Court of Appeal in R. v. Boswell ⁽³⁾ which he regards, in the absence of relevant local authority, as giving authoritative guidance on the question of sentence in relation to this offence.

14. In R. v. Boswell the court was considering a number of appeals including the title appeal Boswell arising from offences of causing death by reckless driving. The learned Lord Chief Justice at page 355 cites a passage from the judgment of Lawton L.J. in R. v. Guilfoyle and he says at page 356:

"Thus it is clear that anyone who is guilty of causing death by reckless driving must fall into the more serious category as set out by Lawton L.J. in his judgment in R. v. Guilfoyle. To be guilty the defendant must have created an obvious and serious risk of injury to the person or damage to property and must either have given no thought to the possibility of that obvious risk, or have seen the risk and nevertheless decided to run it."

A little further on, he says (page 356 letter h):

"Any driver who fails to realise that what he is doing at th wheel is creating a risk when to an ordinary person such risk could be obvious, or, even worse, sees the risk and nevertheless takes a chance on avoiding disaster and so kills, is prima fable deserving of severe punishment. In our view such punishment should in many cases involve immediate loss of liberty."(Emphasis supplied)

Lord Lane then goes on to consider a number of factors which may aggravate the offence and follows that with a consideration on the other side of mitigating factors. None of these - save probably the previous conviction - are of any real relevance to the circumstances of the present case.

15. Lord Lane then concludes in these words:

"The situation where there are not aggravating feature present is that, so far as sentencing is concerned, a non-custodial penalty may well be appropriate, but where aggravating features, or an aggravating feature is present then a 'custodial sentence is generally necessary." (Emphasis supplied)

In other words even within the more serious category of offences there may well be circumstances affecting the case which may justify a non-custodial sentence.

16. Mr. Macrae contended that we should not lean too heavily on the decision in Boswell. He put this on the basis that these offences are "epidemic" in the United Kingdom, while such is not yet the case in Hong Kong. However, we are satisfied that, whatever be the position in the United Kingdom, the feelings of the public in respect of such offences in Hong Kong are accurately reflected in the decision of the legislature so greatly to enhance the penalties for this offence in this territory.

17. We think that the decision. in Boswell establishes a valuable principle which ought equally to be applied in Hong Kong. Where recklessness has been proved in the sense defined by Lawton L.J. in Guilfoyle and adopted by Lord Lane in Boswell, and where the conduct of the defendant cannot be described as a "one off" momentary reckless error of judgment, or momentary inattention in failing to notice the presence of pedestrian (the first two of Lord Lane's points of mitigation), or something of that kind, and where, in addition, there is any feature of aggravation in the conduct of the defendant a custodial sentence will normally be required. The gravity of the aggravating-feature or features will dictate the appropriate length of sentence.

18. While, with the exception of the previous minor offence, none of the aggravating factors referred to by Lord Lane appear in the present case his recital is clearly not intended to be anything in the nature of an exhaustive list.

19. In the present case the circumstances which we regarded as aggravating are the following: firstly, that the respondent was approaching a pedestrian crossing and was therefore fixed ab initio with the duty - attaching to any prudent driver - to exercise care in the lookout which he kept. He must either have seen the buses ahead of him draw to a halt and thus at once have been alerted to the possibility of danger or else have culpably failed to observe that they had done so. The same considerations apply to his disregard for the presence of the pedestrians or his failure to perceive them. Finally there is the fact that he was driving some 6 or 7 miles above the speed limit in the area. While that speed could not be regarded as grossly excessive if the circumstances had been that the road was, to careful scrutiny, quite clear and without any indication of danger, nevertheless, in the circumstances which I have just now described it was excessive and therefore an additional aggravating factor.

20. We considered the points of mitigation put to us by Mr. Macrae including the good character of the defendant, which is not in dispute and the fact that his income has now been sharply reduced as a result of his being no longer able to drive for his employer.

21. Having taken these matters into consideration and having had regard also to the fact that the respondent's conduct was not attended by any of the grosser factors of aggravation referred to by Lord Lane in his list, which included such matters as driving under the influence of drink or racing or the like, we concluded that the appropriate sentence in the present case should have been an immediate custodial sentence of four months' imprisonment. We therefore granted the application and while sustaining the period of disqualification and the fine we imposed a sentence of four months' imprisonment. But allowing for the fact that the case was one taken on review we ordered that the sentence should be suspended for a period of two years.

(1)    (1977) H.K.L.R. 39 at page 40

(2)    (1973) 2 All E.R. 844 at 845

(3)    (1984) 3 All E.R. 353