HKSAR v. TAM KWOK CHOI

HCMA 700/2008

HEADNOTE

1.    By s. 5(1) of the Road Traffic Legislation (Amendment) Ordinance 2008, which subsection came into operation on 4 July 2008, s. 36(1)(a) of the Road Traffic Ordinance, Cap. 374, was amended so as to increase the maximum penalty for dangerous driving causing death upon conviction on indictment from 5 years’ imprisonment to 10 years’ imprisonment.  Even though the maximum penalty for this offence upon summary conviction remains limited to 2 years’ imprisonment and the District Court’s power to imprison is limited to 7 years, this increase should, within these limits, result in considerably higher sentences in all courts for this offence.  But that does not have retrospective effect so as to warrant higher sentences for offences committed prior to the increase.  Statutes by which penalties are increased are not given retrospective effect as a matter of construction.  Indeed even an express provision for retrospective effect would not be effective, because it would offend against art. 12(1) of the Bill of Rights as entrenched by art. 39 of the Basic Law.

2.    As to the future, there is this point to emphasise.  Where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative’s view that the offence is regarded as more serious than it used to be regarded, and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before.  There are many cases to that effect, for example, Attorney General v. Ho Yu Ping [1996] 1 HKC 555, per Yang CJ at p. 560 E-H.  So those who cause death by dangerous driving after the coming into operation of the statutory amendment increasing the maximum penalty for that offence from 5 years’ imprisonment to 10 years’ imprisonment can expect to receive sentences appreciably more severe than those passed for similar conduct before that amendment came into operation.

3.    The general principle upon which the discretion to award appeal costs under s. 8(b) of the Costs in Criminal Cases Ordinance, Cap. 492, is that costs should follow the event unless there is some good reason to the contrary.

HCMA 700/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 700 OF 2008

(ON APPEAL FROM KTCC 3528 OF 2008)

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J U D G M E N T

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1. On 30 June 2008 the Appellant pleaded guilty before Josiah Lam, Esq. in the Magistrate’s Court at Kwun Tong to a charge that he had, on 14 December 2007, caused the death of two persons by driving dangerously, contrary to s. 36(1) of the Road Traffic Ordinance, Cap. 374.  The offence was committed on 14 December 2007.  At that time the maximum term of imprisonment for this offence was 2 years upon summary conviction and 5 years upon conviction on indictment.  Taking a starting point of 2 years’ imprisonment – in other words, the maximum term of imprisonment that can be imposed for this offence upon summary conviction – and discounting it by a third for the Appellant’s guilty plea, the Magistrate sentenced him to 16 months’ imprisonment.  He also disqualified him from driving for a period of 3 years.  The Appellant appeals against the length of his prison sentence.

Grounds of Appeal

2.  His complaint is, in short, that too high a starting point had been taken.  The details of his complaint appear in the Perfected Grounds of Appeal against Sentence filed on his behalf, which read:

“A.  In adopting the maximum sentence of 2 years as the starting point, the learned magistrate:

(1)  erred in failing to reflect and/or make any or any adequate provision in the Appellant’s sentence after confirming that none of the established aggravating features were present in the instant case

See:   Paragraph 16, Reason for sentence [p.15/16 Appeal Bundle]; Secretary for Justice v. Poon Wing Kay [2007] 1 HKLRD 660; R v. Cooksley [2003] 3 All ER 40

(2)  erred in finding, against the weight and nature of the evidence, that the instant case depicted the “worst scenario that can be seen in the magistracy” and/or “the worst dangerous driving causing death case that can be heard in the magistracy”.

See:   Paragraph 16, Reason for Sentence [p.16 Appeal Bundle]; Line G, Transcript [p.28 Appeal Bundle]

B.      In the circumstances, a lower starting point ought to have been adopted by the learned magistrate and, as a consequence, a lower sentence ought to have been imposed against the Appellant.”

Brief Facts

3.  The “Brief Facts of the Case” prepared by the prosecution and admitted by the Appellant in the Magistrate’s Court are these:

“1.     At about 2350 hours on 2007-12-14, PW1 was driving a public bus HN 4867 (Citybus) along the second lane of eastbound Chui Ling Road towards Po Yap Road with the deceaseds, PW2, PW3, PW4, PW5 and other thirteen passengers on board.  When PW1  reached near the junction with Po Shun Road, the defendant was driving a public bus JD 6815 (New World First Bus) along the second lane of southbound Po Shun Road and reaching the junction.  The defendant disregarded the safety of other road user and failed to stop before the ‘stop’ line of the junction.  He moved his vehicle into the junction from the ‘stop’ line of southbound Po Shun Road dangerously and turned right into westbound Chui Ling Road causing a severe collision between the nearside front of PW1’s vehicle and the nearside front of the defendant’s vehicle.  The collision slashed open the front body of PW1’s vehicle causing the deceaseds being thrown out and trapped underneath of PW1’s vehicle.  The deceaseds, PW2, PW3, PW4, PW5 and other eleven passengers of PW1’s vehicle sustained various degrees of injuries and were conveyed to United Christian Hospital, Queen Elizabeth Hospital and Tseung Kwan O Hospital respectively.

2.      PW2-5 witnessed that the defendant did not stop at the ‘stop’ line of southbound Po Shun Road.  PW6 was the first attending scene officer who witnessed the position of both vehicles.  PW7 was the initial investigation officer. He took photos at scene and prepared a sketch of scene.  PW8 took over the investigation.  He later interviewed the defendant and took a record of interview from him

3.      PW9 & PW10 were the medical officers who attended the deceaseds.  PW9 certified the death of Deceased 1 at 0046 hours on 2007-12-15.  PW10 certified the death of Deceased 2 at 0038 hours on 2007-12-15.

4.      PW11 and PW12 conducted autopsy on the deceaseds respectively and confirmed the cause of their death as ‘multiple injuries’.

5.      PW13 was the motor vehicle examiner who examined the defendant’s vehicle and confirmed it free from mechanical defects.

6.      At the time of accident, the weather was clear.  The street lightings were well lit.  The road surface was dry and in good repair with light traffic load.  The prescribed speed limit was 50 km/h.  The accident location was a ‘T-junction’, Po Shun Road at north side, Po Yap Road at east side and Chui Ling Read at west side.  There were ‘stop’ traffic signs, road markings and ‘stop’ line at the junction of southbound Po Shun Road.”

Personal Circumstances

4.  As for the Appellant’s personal circumstances, they are these.  He is aged 30, had been a bus driver and had clear record apart from having paid a fixed penalty for having, on 5 October 2004, crossed a continuous double white line or a white line with a broken white line.  He is a married man.  His wife was pregnant with their child at the time when he was sentenced.

Reasons for Sentence

5.  In passing sentence, the Magistrate said that the present case is “the worst dangerous driving causing death case that can be heard in the Magistracy”.  Then in his Reasons for Sentence prepared later, the Magistrate said this:

“Although none of the aggravating factors mentioned by Defence Counsel exists in the present case, D’s misdeed is still a very serious case of causing death by dangerous driving.  It is the worst scenario that can be seen in the magistracy – both in terms of the degree of the daring risk taken by D and the casualties resulted.  D, as an experienced professional bus driver acting so irresponsibly and dangerously like that and the heavy casualties are both aggravating factors in this case.”

6.  Since the Appellant failed to stop at a stop indication and two persons were killed as a result, there can be no doubt that this is a bad case of dangerous driving causing death.  The question is whether it represents the worst dangerous driving causing death scenario that one finds being dealt with in the Magistrate’s Court.

Cases

7.  In his Reasons for Sentence, the Magistrate mentions two cases, namely R v. Cooksley [2003] 3 All ER 40 and HKSAR v. Sin Kit-sang [2006] 4 HKC 472.  These are two of the five dangerous driving causing death cases cited in Cross & Cheung on Sentencing in Hong Kong, 5^th ed. (2007) at p. 631.  The other three are HKSAR v. Mok King-yin [2002]2 HKLRD 76, HKSAR v. Park Myung Hwa [2004] 3 HKC 563 and Secretary for Justice v. Poon Wing-kay & Anor [2007] 1 HKC 289.  Poon’s case is a decision of our Court of Appeal in an appeal from the District Court while Cooksley’s case is a decision of the English Court of Appeal.  Mok’s case, Park’s case and Sin’s case are decisions of the High Court in appeals from the Magistrate’s Court.

8.  In Mok’s case, in which one person was killed, the aggravating features were high speed, the consumption of alcohol and, as Wong J put it, “showing off”.  Following conviction after trial, Mok was sentenced to 18 months’ imprisonment.  Wong J said that he would have been more than prepared to uphold that sentence if he were not constrained by previous authorities to reduce it.  In the result, he reduced the sentence to one of 9 months’ imprisonment.  He observed (in para. 8) that there was no reason why Hong Kong should not increase the maximum sentence for this offence to 10 years’ imprisonment.

9.  Park’s case is a decision of mine.  Park was convicted after trial.  She had deliberately driven through traffic lights showing red against her and, as a result, killed two persons.  In upholding the sentence of 3 months’ imprisonment passed on her by the Magistrate’s Court, I said as follows in para. 22:

“I have sympathy not only for the victims and their families in their tragedy but also for the appellant and her family in their plight.  But my duty, as I see it, is to recognise that, despite everything urged on the appellant’s behalf, the magistrate was entitled, in the exercise of his duty, to sentence the appellant as he did.  It is true, as R v Rodenhurst [1980] RTR 333 shows, that an immediate custodial sentence is by no means inevitable even where more than one death results from reckless or dangerous driving.  But the present case is one in which the magistrate found, and was entitled to find, that the appellant had deliberately driven through a red light.  That is serious.”

10.  In Sin’s case a sentence of 4 months’ imprisonment was passed, following conviction after trial, on a man who had been driving at a speed of at least 80 km/h in a 50 km/h zone.  Describing Sin’s conduct as “blatantly irresponsible”, Deputy Judge M. Poon upheld that sentence, adding that she would have passed a more severe sentence if she had been the sentencer.  She did not indicate how much more severe a sentence she would have passed.

11.  In Poon’s case the general principles laid down in Cooksley’s case were adopted and added to.  Following conviction after trial in the District Court, Poon was sentenced to 2 years’ imprisonment by way of concurrent terms of 2 years for dangerous driving causing death and 15 months for racing, while his co-accused Liu was sentenced to 2½ years’ imprisonment by way of concurrent terms of 2½ years for dangerous driving causing death and 15 months for racing.  Upon the Secretary for Justice’s application for a review of sentence, the Court of Appeal increased each driver’s sentence to 5 years’ imprisonment by way of concurrent terms of 5 years for dangerous driving causing death and 2 years for racing.

12.  The circumstances of the case were summarised by the Appeal Committee when refusing Poon leave to appeal to the Court of Final Appeal.  The opening paragraph of the Appeal Committee’s determination (delivered by Bokhary PJ) reads:

“This case arises out of the fatal consequences of a race between two public bus drivers competing for passengers.  The applicant was one of those drivers.  His co-accused Mr Liu Chun Pong was the other.  In the course of their race these two men went through 10 sets of red lights.  The race came to its fatal end when the public light bus driven by the applicant crashed into a taxi and then into the public light bus driven by Mr Liu.  Among those injured as a result were two of Mr Liu’s passengers who died from their injuries.”

13.  Noting (in para. 5) that it was contended on Poon’s behalf that it was reasonably arguable that the increases ordered by the Court of Appeal constituted a substantial and grave injustice by way of a departure from accepted norms contrary to his interests, the Appeal Committee rejected that contention, saying this (in para. 6):

“The arguments on the applicants’ behalf have been very thorough, but can be dealt with simply by saying this.  It is always possible to imagine circumstances worse than those of any given case at hand.  But in a shockingly bad case, which this plainly was, there is no accepted norm against the imposition of the maximum penalty, whether at first instance or upon review.  And, as it happens, it might be said that neither the applicant nor Mr Liu really received the maximum penalty, since the terms which each received were made concurrent rather than consecutive.  Consecutive terms would have resulted in each man receiving 7 years’ imprisonment.  And of course the District Court has jurisdiction to sentence up to a maximum of seven years’ imprisonment.”

14.  My attention has been drawn by counsel for the Respondent to two recent decisions of the Court of Appeal, Secretary for Justice v. Fong Tsai-man [2008] 3 HKLRD 494 and Secretary for Justice v. Yam Chun-keung, CAAR 2 of 2008, 25 September 2008 (unreported).

15.  In Fong’s case a starting point of one year was held not to be manifestly inadequate, it being said that the accident was purely due to an error of judgement.  The present case involved more than an error of judgment since it involved failing to stop at a stop indication.  On the other hand, there are other things that could be said against Fong which cannot be said against the Appellant in the present case, including Fong’s very bad record.

16.  As for Yam’s case, its circumstances were unique, as he was deliberately doing the absurdly dangerous thing of teaching a 13-year-old to drive.  A starting point of 2½ years was taken for the dangerous driving causing death offence in that case (which went to the Court of Appeal from the District Court).  The position was also complicated by there being five other offences.  The overall sentences for all six offences was 1 year and 10 months’ imprisonment.

17.  Having regard to the aggravating factor in the present case that more than one person was killed, the starting point adopted by the Magistrate would have been appropriate if the sentencing guidelines laid down by Lord Woolf CJ speaking for English Court of Appeal in Cooksley’s case were applicable in Hong Kong.  But in Poon’s case (in para. 10) Ma CJHC, while considering a number of the general principles laid down in Cooksley’s case to be equally applicable in Hong Kong, said that the Cooksley dangerous driving causing death sentencing guidelines “cannot be used in Hong Kong, not least because the maximum sentence in the United Kingdom for the offence was at the time of that case 10 years (now 14 years) rather than 5”.

Increase of Maximum Penalty

18.  In para. 18 Ma CJHC said this:

“Finally, we were informed by Mr David Leung (for the Secretary for Justice) that consideration is now being given to increasing the maximum sentence for the offence of dangerous driving causing death.  In our view, given the existence of cases such as the present, there must be considerable merit in this course.”

19.  By s. 5(1) of the Road Traffic Legislation (Amendment) Ordinance 2008, which subsection came into operation on 4 July 2008, s. 36(1)(a) of the Road Traffic Ordinance was amended so as to increase the maximum penalty for dangerous driving causing death upon conviction on indictment from 5 years’ imprisonment to 10 years’ imprisonment.  Even though the maximum penalty for this offence upon summary conviction remains limited to 2 years’ imprisonment and the District Court’s power to imprison is limited to 7 years, this increase should, within these limits, result in considerably higher sentences in all courts for this offence.  But that does not have retrospective effect so as to warrant higher sentences for offences committed prior to the increase.  Statutes by which penalties are increased are not given retrospective effect as a matter of construction.  Indeed even an express provision for retrospective effect would not be effective, because it would offend against art. 12(1) of the Bill of Rights as entrenched by art. 39 of the Basic Law.

Appeal Allowed:  Sentence Reduced

20.  In the light of the past cases to date, I do not think that a starting point of 2 years can be supported in the present case.  Giving the matter my best consideration and bearing in mind all the circumstances, I would proceed on the basis that the appropriate starting point for him following conviction after trial was one year’s imprisonment.  The only real mitigation is his plea of guilty, which earns him a one-third discount.  The disqualification imposed by the Magistrate will stand, but the sentence of imprisonment will be reduced to one year discounted by a third, namely to 8 months’ imprisonment.  The appeal is allowed to reduce the sentence to imprisonment for 8 months.

In Future

21.  As to the future, there is this point to emphasise.  Where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative’s view that the offence is regarded as more serious than it used to be regarded, and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before.  There are many cases to that effect, for example, Attorney General v. Ho Yu Ping [1996] 1 HKC 555, per Yang CJ at p. 560 E-H.  So those who cause death by dangerous driving after the coming into operation of the statutory amendment increasing the maximum penalty for that offence from 5 years’ imprisonment to 10 years’ imprisonment can expect to receive sentences appreciably more severe than those passed for similar conduct before that amendment came into operation.

22.  It is to be hoped that the Court of Appeal will be presented with an early opportunity to consider whether to lay down sentencing guidelines for dangerous driving causing death, perhaps by more or less adopting the Cooksley guidelines or perhaps by devising some other set of guidelines.  Meanwhile sentencers will simply have to do their best in appropriately reflecting the new legislative view of the seriousness of dangerous driving causing death.  They will of course do so in a balanced manner, being careful to avoid undue severity but without forgetting that the courts themselves have for some time been encouraging an increase of the maximum penalty for this offence.

[Argument as to costs]

23.  The Appellant applies, under s. 8(b) of the Costs in Criminal Cases Ordinance, Cap. 492, for his costs of this appeal.  His application is opposed by the Respondent.  Section 8 provides that:

“Where a judge –

(a)  allows an appeal to which section 105 or 113 of the Magistrates Ordinance (Cap. 227) applies, in the exercise of his powers under section 120 of that Ordinance; or

(b)  in any appeal against sentence imposed by a magistrate, quashes the sentence and in place of it imposes a less severe punishment than that so imposed,

the judge may order that costs be awarded to the defendant.”

24.  Neither counsel has found any authority on how that discretion is to be exercised.  As it seems to me, the general principle upon which it should be exercised is that costs should follow the event unless there is some good reason to the contrary.  This appeal against sentence has succeeded.  Indeed, it has succeeded to the extent of the sentence being halved.  I see no good reason why costs should not follow the event.  Accordingly, I award the Appellant the costs of this appeal, to be taxed if not agreed.