HKSAR v. LEI TIN SENG

[English translation – 英譯本]
CACC 271/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 271 OF 2009

(ON APPEAL FROM DCCC NO. 160 OF 2009)

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J U D G M E N T

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Hon Yeung JA (delivering the judgment of the Court):

Introduction

1.  At around 3:30 p.m. on 1 August 2008, the Applicant Lei Tin Seng was driving a goods vehicle with registration number DS 7296 along San Fung Avenue, Sheung Shui. Upon reaching the junction of San Fung Avenue and Tsun Fu Street and when the Applicant turned left into Tsun Fu Avenue, which was an one-way road, his goods vehicle suddenly turned sideways and rammed onto the pavement on the right of Tsun Fu Street. The goods vehicle driven by the Applicant first hit and damaged the iron railings at the pavement before it hit four pedestrians, namely Yeung Yu Kwong (transliteration), Fan Yuk Mui (transliteration), Chung So Ha (transliteration) and Yung Yee Man (transliteration), on the pavement.

2.  Yeung Yu Kwong was stuck between the front of the light goods vehicle and a shop. Chung So Ha and Yung Yee Man were hit by the offside front of the goods vehicle whereas Fan Yuk Mui was hit by the nearside front of the goods vehicle.

3.  On 3 August 2008, Yeung Yu Kwong died from his injuries. His cause of death was that he had sustained multiple traumatic injuries. The other three casualties also sustained injuries. The injuries of Fan Yuk Mui and Yung Yee Man were relatively minor and they were discharged on the same day. Chung So Ha’s injuries were rather serious and she had to be hospitalized for 7 days. They all had to return for follow-up treatments but none suffered any permanent injuries/disability.

4.  The Applicant was arrested after the accident. Under caution, the Applicant said that when he was turning into Tsun Fu Street, he did try to step on the foot brake to decelerate but was not successful. On the contrary, the goods vehicle rammed onto the right pavement of Tsun Fu Street. Later when the police sought to interview the Applicant again, he indicated that he was afraid that the more he answered, the worse it would get, and so he chose not to answer any more questions. In view of the above incident, the Applicant was charged with an offence of ‘dangerous driving causing death’. The Applicant pleaded not guilty to the charge and came before District Judge Mary Yuen for trial.

5.  On 30 July 2009, Judge Yuen found the Applicant guilty of the charge and sentenced him to 3 years and 6 months’ imprisonment. He was also disqualified for 3 years and had to re-take the driving licence test before he could drive any vehicle. Judge Yuen took 4 years as the starting point and deducted 6 months for his clear record and being hard working, resulting in a sentence of 3 years and 6 months’ imprisonment.

6.  The Applicant felt aggrieved by his conviction and sentence, and sought leave to appeal against the conviction or the sentence. In his application for leave against conviction, the Applicant was not legally represented and acted in person. But he was offered assistance by the Legal Aid Department to instruct Counsel Mr Jasper Kwan to appear for him in his application for leave to appeal against sentence. When the hearing commenced, the Applicant indicated that he would abandon his appeal against conviction. That application was then dismissed. Therefore this Court only needs to deal with his application on sentence.

Grounds of Appeal

7.  Mr Kwan put forward several grounds of appeal to support the application for reduction of sentence. Mr Kwan argued that the trial judge should not have sentenced the Applicant on the basis that the Applicant was reckless as to or had overlooked the safety of other road users. Mr Kwan emphasized that the trial judge’s finding that the Applicant was travelling at a speed of nearly 50 kilometres per hour was not substantiated by sufficient evidence. Mr Kwan said that the Applicant caused the accident merely because he had made a wrong estimate or was careless for a short period of time, or had at most made a wrong judgment out of a moment’s recklessness or driven his goods vehicle in a bad manner for a short period of time.

8.  Mr Kwan stressed that the trial judge’s finding that the Applicant was travelling at a speed much higher that 30 kilometres per hour prior to the accident was incorrect.  Mr Kwan said that although PW1 and PW2 alleged that the speed of the Applicant’s vehicle was very high and was over 50 kilometres per hour, they made their estimates on the Applicant’s speed in a spilt of a second and therefore could be inaccurate. Mr Kwan emphasized that it had been suggested by a witness (witnesses) that the Applicant’s speed was only about 20 to 30 kilometres per hour, which was not far from the reasonable speed of 20 kilometres per hour as provided by one of the witnesses, namely the driving examiner.

9.  Mr Kwan also emphasized that the Applicant was travelling at a speed of 20 to 30 kilometres per hour when he was crossing the white lines before the traffic lights at the junction of San Fung Avenue and Tsun Fu Street. When he changed to the slow lane on San Fung Avenue, he even decelerated. The accident happened merely because the Applicant accelerated too soon and could not control the steering of his goods vehicle.

10.  Mr Kwan submitted that considering the incident on the basis of the matters mentioned above, with respect to the yardsticks laid down in R v Cooksley [2003] 3 All ER 40, the culpability of the Applicant was at most in the middle of the scale. Therefore the starting point of 4 years was manifestly excessive. Mr Kwan emphasized that there was no additional aggravating factors in the present case but the sentence was higher than other cases of its type.

Discussion

11.  The undisputed evidence shows that when the Applicant’s goods vehicle was turning left into Tsun Fu Street, it suddenly moved sideways and rammed onto the right pavement, causing death and injuries to a total of four pedestrians. From the injuries of the casualties and the position of the light goods vehicle after the accident, it can be concluded that the impact was not insignificant.

12.  In accordance with the evidence of the witnesses, the trial judge held that the Applicant began to accelerate when he was driving into the bend, and that he was travelling at a speed much higher than 30 kilometres per hour before the collision.

13.  This Court agrees that the many witnesses who claimed to have eye-witnessed the accident were at different locations, made the observation at different moments, and had different estimates and feelings regarding speeds. So the accuracy of their descriptions of a vehicle’s speed on the spur of the moment was doubtful.

14.  However this Court cannot ignore the fact that the light goods vehicle driven by the Applicant was totally out of control and rammed right onto the pavement at an angle of 45 degrees when it was turning left into Tsun Fu Street. The course of the accident, the resulting casualties and the damage to the anti-bumping railings at the edge of the pavement all showed that the speed of the Applicant’s vehicle was extremely high. The Applicant said that he tried to decelerate when he was conducting the turn but was unsuccessful. It showed that his speed at the material time was definitely too high and that his goods vehicle was not in control. Otherwise he would not have felt that there was the need to decelerate.

15.  This Court disagrees with Mr Kwan’s assertion that the accident happened simply because the Applicant accelerated too early and failed to control his vehicle. Assuming that the Applicant had merely accelerated too soon when he conducted the turn, he would not have lost control of his vehicle.

16.  The Applicant conducted a sharp turn at a high speed at the peak hours at a location that had pedestrian crossings and plenty of pedestrians. As a result, his goods vehicle was out of control and rammed onto the pavement, causing the accident. His manner of driving should be condemned.

17.  This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

18.  The Applicant made a sharp turn at high speed in an extremely busy street, killing/causing injuries to many innocent pedestrians and great pain and distress to the families of the victims.

19.  The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

20.  However the Applicant did not have the intention to drive extremely irresponsibly and dangerously over a long period of time or when the risks of killing/injuring other road users were foreseeable. Those aggravating factors as set out in R v Cooksley are not present in this case. The accident happened because the Applicant made a wrong judgment and conducted the turn at a higher than reasonable speed over that brief moment of time. His criminality is not on the high side, and does not fall within the extremely serious category.

21.  The Respondent was represented by Mr David Leung, Senior Assistant Director of Public Prosecutions, who emphasized that the legislative authorities had increased the maximum penalty of dangerous driving causing death from 5 to 10 years’ imprisonment in order to reflect public abhorrence of the offence. Mr. Leung argued that the overall sentence of that category of offence should be accordingly increased. We agree that the legislature has raised the maximum penalty of the offence to reflect the concern of the general public on the offence. However it does not mean that all offences of dangerous driving causing death should attract heavier sentences. The legislature has increased the maximum penalty of the offence to indicate mainly that the original maximum penalty was inadequate to reflect the criminality in the most serious cases of this type of offence. It has not been suggested that heavy sentences should be imposed in the relative minor cases of the same type. Even though the sentence of this category of cases has been doubled, it does not follow that the overall sentences that were imposed in the past should be raised.

22.  This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment.

23.  It goes without saying that for the sake of protecting the safety of the general public, any deliberate, prolonged acts of extremely dangerous driving that pose definitely foreseeable risks to other road users should be subject to severe sentences if anyone is killed in the accident. Such extremely dangerous acts of driving include drink driving, high-speed car racing on highways, speeding at a speed far above the limit over a prolonged period of time and contravention of traffic signs, jumping red lights at road junctions controlled by traffic lights and certain dangerous acts of cutting lanes at high speeds. The reason is that a normal driver can definitely foresee that it is very likely that such dangerous acts of driving will cause extremely great harm to other road users.

24.  The present case did not involve any of the extremely dangerous acts of driving mentioned above. Taking into account the background of the case and the fact that the Applicant does not have any previous conviction or driving records, this Court is of the view that a sentence of 2 years’ imprisonment is sufficient to reflect his culpability in this incident and is an adequate deterrent against similar acts of dangerous driving.

25.  The Applicant’s application for leave to appeal against sentence is granted, and treating his application as the formal appeal, this Court allows the Applicant’s appeal and reduces his sentence from 3 ½ years’ to 2 years’ imprisonment.