HKSAR v. LEE SUI WAH

CACC 187/2017

[2018] HKCA 406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 187 OF 2017

(ON APPEAL FROM DCCC NO 1178 OF 2016)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The appellant was granted leave on 4 May 2018 by the Single Judge[1] to appeal against the order of the trial judge that the periods of his disqualification from driving were not to run until the appellant had completed his term of imprisonment. The said disqualification orders were imposed on the appellant following his conviction by Deputy Judge Jason Wan (“the judge”) in the District Court on two charges, namely Causing death by dangerous driving (Charge 1); and Causing grievous bodily harm by dangerous driving (Charge 2). He was sentenced to a total of 3½ years’ imprisonment, was disqualified from holding a driving licence of all classes of vehicle for 5 years and 2 years respectively on Charge 1 and Charge 2, and was ordered to complete a driving improvement course within the last 3 months of the period of disqualification. The said charges were brought under sections 36(1) and 36A of the Road Traffic Ordinance, Cap 374 (“the Ordinance”) respectively.

2.  No separate complaint was made in relation to the sentence of imprisonment.

The trial

3.  The accident happened at about 9:45 pm on 10 June 2016.  The appellant, when driving a public light bus with registration mark LV  7180 (“the Vehicle”), knocked down a couple and their 5‑year‑old daughter at a pedestrian crossing (“the Crossing”) outside Maritime Square in Tsing Yi, New Territories.  As a result, the father, who was PW1 at trial, was seriously injured (Charge 2), while the mother regrettably suffered fatal injuries and was certified dead early the following morning (Charge 1).  Their daughter was also injured.

4.  It was not disputed that:

(i) At the relevant time, the appellant was driving the Vehicle along Tsing King Road with passengers on board.  The speed limit of that section of the road was 50 km per hour and, according to Dr Tam Yiu Yau, a forensic accident investigation and reconstruction expert, the Vehicle was travelling at 50 km per hour before the appellant braked;

(ii) The Vehicle was in sound condition and had no mechanical defects; while the traffic volume was light, the visibility was good, the weather was fine, the road surface was dry and in good condition, and the road adequately lit by street lamps.  The word “SLOW” was marked on the road approximately 80 metres before the Crossing in question;

(iii) The Vehicle collided with PW1, his wife and daughter at the Crossing.  PW1 suffered multiple injuries including a back contusion and multiple fractured ribs, a fractured left clavicle (collarbone), a left medial malleolus and a right radial styloid.  An emergency operation was performed on him, resulting in his hospitalisation for 7 days.  His wife was certified dead at 6:15 am on 11 June 2016, while his daughter remained in hospital for 6 days with her injuries;

(iv) At 10 pm, immediately after the accident upon the arrival of the police, the appellant said to an investigating police officer, “At that time, I was travelling on the second left lane at the speed of about 40 km per hour.  At that time, I saw 3 people cross the road about 25 metres away.  At that time, I did honk the horn and turn to the left, but still knock(ed) them down”.

The prosecution case

5.  PW1 and his wife were both aged 35, and were respectively an engineer and a teacher on the mainland.  At the time, they were visiting Hong Kong as tourists.  Having spent the day at Disneyland, they were returning to their hotel when, upon the suggestion of a local resident, they were using the Crossing to reach the pavement outside Maritime Square in order to hail a taxi.  The Crossing, which was neither a “zebra” crossing nor a crossing controlled by traffic lights, was divided into two sections by an island.  They reached the island and continued to cross the second section, walking at all times at a normal walking pace.  PW1’s wife was a little ahead of him, while his daughter was a little behind at his left side.  After walking some 3 paces into the road, PW1 looked to his left side and saw a public light bus approaching them at high speed.  He then felt he was hit and lost consciousness. When he regained consciousness, all three of them were lying on the ground.

6.  There was some other evidence from eye-witnesses:

(i) A pedestrian, PW2, who at the time was using the Crossing from the opposite direction with his wife, observed that the Vehicle was approaching at a rather high speed, without slowing down.  Therefore, he took his wife’s hand and hurried up to cross the road onto the island, passing PW1 and his family who were walking at normal pace;

(ii) Another pedestrian, PW3, was walking along the road and suddenly heard a braking sound.  He looked up and saw a public light bus collide with some pedestrians and then continue to travel a short distance before it came to a halt;

(iii) PW4, who was in the Vehicle at the time, saw through the front windscreen as it approached the Crossing some pedestrians about 20 metres away.  The Vehicle did not appear to slow down at all and, when they were 5 metres away, PW4 shouted and closed his eyes.  He then heard the sound of a collision and the braking of the Vehicle.

7.  Evidence of the remaining three prosecution witnesses[2], two police officers and a technician who collected the data from the speed display device of the Vehicle, was not disputed.  The technician said he could not be sure of the speed of the Vehicle at the time of the accident.

The defence case

8.  The appellant testified that he obtained his driving licence in 1987 and had worked as a public light bus driver since 1992.  He had been driving the route in question for about 5 years.  At the time of the accident, he was driving carefully, at about 50 km per hour, and paying attention to conditions on the road.  He saw that PW1 and his family were waiting to cross the road on the island.  However, PW1’s daughter suddenly emerged unexpectedly from the island, followed by her mother, who was trying to grab hold of her daughter.  This occurred when the Vehicle was about 7 to 8 metres from the Crossing[3]. The appellant sounded his horn and applied the brakes but was unable to avoid the collision.  As a result, the family were knocked down.

9.  He explained during cross‑examination that, when he told the police officers he “saw PW1 and his family crossing the road when they were 25 metres away”, what he really meant was that he saw them waiting on the island when he was 25 metres away.  He said he did not expect them to walk out of the island; and claimed that he did tell the police officers that PW1’s daughter had suddenly emerged from the island.  He also said that he had slowed the Vehicle down from 50 to 40 km per hour when he saw pedestrians at the Crossing, and to 30 to 35 km per hour when he saw PW2[4].

Reasons for verdict

10.  The judge found PW1 to 4to be honest and reliable witnesses, and accepted their evidence; whilst the evidence of PW5 to 7 was not disputed.  He rejected the appellant’s evidence, in particular because he gave different versions of the Vehicle’s speed, and the timing when he first noticed PW1’s family.  He found the following facts proved[5]:

“(1) The [appellant] was all along driving at the speed of 50 km per hour until he applied the brake. He never slowed down when he was approaching the pedestrian crossing;

(2) PW1 and his family were walking in normal walking pace all along before the accident. His daughter did not suddenly walk out of the island and his wife did not rush out to get hold of the daughter;

(3) The [appellant] said he first saw PW1 and his family crossing the road when they were about 25 metres way. According to PW5, the skid mark started only at about 7 metres from the pedestrian crossing. With reference to the Road Users’ Code, the thinking distance for a driver driving at 50 metres per hour should be 12.5 metres. The [appellant] said he immediately braked after he saw the pedestrians on the road. It means when the [appellant] first saw PW1 and his family, he was only about 20 metres away from them;

(4) The [appellant] only noticed PW1 and his family when they were about 20 metres away and only started to apply the brake when the public light bus was about 7 metres from the pedestrian crossing.  By that time, it was too late to avoid the collision.”

11.  Accordingly, the judge found that the following acts on the appellant’s part fell far below what should be expected of a competent and careful driver:

(i) Failure to keep a proper lookout of the road conditions – the appellant was approaching a pedestrian crossing near an MTR station in the evening and, therefore, should reasonably have expected some pedestrians to be using the Crossing; he had a clear and unobstructed view of the Crossing and should have been able to stop had he really seen them in time;

(ii) Driving at an excessive speed – the appellant had been driving at the maximum permissible speed without paying due regard to the road conditions; he should have slowed down when approaching the Crossing, on which at least 5 pedestrians were crossing at the material time.

12.  The judge attributed the accident not to a momentary lapse of attention, or a momentary error of judgment, but to the appellant’s poor driving attitude.  He described the appellant as reckless and selfish; he was trying to save himself some time, which inevitably put other road users at grave risk.

13.  The judge accordingly convicted the appellant on both charges on the basis that he had failed to keep a proper lookout of the road conditions and drove at an excessive speed in all the circumstances (albeit that he had not exceeded the speed limit).

Mitigation

14.  The appellant was 55 years of age at the time of sentence and married with three children.  He had worked as a public light bus driver for many years, had only one relevant previous driving conviction for careless driving and one relatively minor and unrelated criminal conviction some 40 years ago.  It was stressed on his behalf that the appellant was very remorseful, and that the accident had been occasioned by a momentary misjudgement rather than a deliberate disregard for the safety of pedestrians.

Reasons for sentence

15.  The judge considered the charges to be very serious given that a life had been lost.  He referred to the decision of the Court of Appeal of England and Wales in R v Cooksley and Ors[6], which has been approved by the Court of Appeal in Hong Kong in Secretary for Justice v Poon Wing Kay[7], and identified as an aggravating feature in the present case the “conscious decision and deliberate act to drive past the pedestrian crossing at a high speed and without keeping a proper lookout”[8]. He also referred to two other decisions in Hong Kong[9], which made clear that dangerous driving causing death at a pedestrian crossing is a serious aggravating feature.

16.  He addressed the sentencing scales in Cooksley, and determined that the appellant’s culpability fell between intermediate and higher culpability.  He adopted starting points of 3 years’ imprisonment and 12 months’ imprisonment on Charge 1 and Charge 2 respectively.  He then ordered 6 months’ imprisonment of the sentence on Charge 2 to be served consecutively to the sentence of Charge 1, resulting in a total sentence of 3½ years’ imprisonment.

17.  As for the question of disqualification, the judge ordered the appellant to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 5 years and 2 years in respect of Charge 1 and Charge 2 respectively; and, further, that the disqualification periods were not to run until the appellant had completed serving his sentence of imprisonment.  We shall assume that the disqualification periods were intended to run concurrently with each other, although this was not spelt out in the order.  The appellant was also required to complete a driving improvement course within the last three months of the period of his disqualification.

Grounds of appeal

18.  Mr H Y Wong (with him Mr Dicky Cheung) on behalf of the appellant, takes issue with that part of the judge’s sentence where he ordered that the disqualification periods should not take effect until the appellant has completed his term of imprisonment.  He argues that:

(i) There is no jurisdiction for a judge to order that a disqualification period should not begin to run until the accompanying sentence of imprisonment has been served (Ground 1);

(ii) The judge failed to give reasons for, or to invite counsel to make submissions on, the disqualification orders he imposed (Ground 2); and

(iii) The overall disqualification periods imposed as part of the sentence were wrong in principle and manifestly excessive (Ground 3).

19.  Mr Wong submits that section 69A(2) of the Ordinance does not apply, since the appellant had not previously been convicted of “a relevant scheduled offence”, his previous traffic convictions, namely, careless driving and failing to comply with traffic signals, falling outside the relevant schedule.

20.  He further argues that, since a sentence of 3½ years’ imprisonment is already a severe punishment, a 5‑year disqualification period running from the end of the completion of such a term of imprisonment would be manifestly excessive.  The appellant, at the then age of 64, would be effectively prevented from resuming his professional career as a driver.

Respondent’s submissions

21.  Mr David Chan, on behalf of the respondent, did not oppose the grant of leave to appeal in relation to the imposition of the disqualification order and does not oppose this appeal, limited as it is to the periods of the disqualification orders.  He accepts that section 69A(2) of the Ordinance was not applicable to the appellant’s case and, further, that the judge should have invited submissions before any order of disqualification was made.

Consideration

22.  In our view, Mr Chan’s concession is well made in the light of this Court’s decision in HKSAR v Wong Mun Ming[10], in particular at paragraphs 29 to 41 of the judgment.  At paragraphs 37 and 38, the Court had said:

“37. Before leaving the statutory framework there is another important provision that we should mention and that is s.69A of the Road Traffic Ordinance. This is a provision which only applies to recidivists[11] and the effect of s.69A(2) is to compel the court making the disqualification order to further order that it will not commence to run until after the expiry of any prison sentence imposed on the offender unless the court finds that there exist special reasons for not so ordering. The consequence of this provision is that, absent special reasons, the operation of the disqualification order is deferred until the offender is released from prison. Thus the period spent in prison will not have the effect of reducing the period of disqualification the offender will have to undergo.

38.  Such a provision is lacking from the regimes in ss.36 and 36A. Under those regimes the disqualification order takes effect from the date it is made and so, for example, a person against whom a 5‑year disqualification order is made, if sentenced to 3 years’ imprisonment, will, in reality, have to undergo a period of disqualification of only two years from the date of his release from prison.”

23.  In our judgment, the appellant having not been previously convicted of a relevant scheduled offence, there was no jurisdiction for the judge to order the disqualification periods to run from the date of the completion of his sentence of imprisonment.  Ground 1 is correctly made out.

24.  In considering Ground 2, it may be noted that the Court in Wong Mung Ming had earlier said this of the approach to, and procedure for, dealing with a disqualification order under the Ordinance, at paragraphs 35 and 36:

“35. Of course, the statutory provisions only lay down a minimum period of disqualification and so the judicial officer is entitled to order a period of disqualification greater than 5 years. But whatever order the judicial officer makes he is obliged to provide reasons for it and this is especially important where he makes the disqualification order in excess of the 5‑year stipulated minimum statutory period.

36.  We cannot emphasise enough that defence counsel must be prepared to make submissions on these issues on their client’s behalf. It is an important part of a defence counsel’s duty to his client to seek and obtain clear instructions on these issues in advance of the hearing so that he is in a position at the hearing to protect and advance his client’s interests. The situation should not arise, as happened here, that the first occasion these submissions are made is before the appellate court.”

25.  Whilst the judge is, by this ground of appeal, implicitly criticised for not giving reasons for the disqualification orders he made, it seems extraordinary that no submissions whatsoever were advanced on this issue by defence counsel (not Mr Wong or Mr Cheung) during mitigation in the trial below.  Indeed, the word ‘disqualification’ was never even mentioned by him.  Moreover, prosecuting counsel at trial acting on fiat never saw fit to raise this matter with the court, so that it could be properly addressed and dealt with.  As a result, no mention was ever made of the question of disqualification by anybody until the judge delivered his sentence.  Not surprisingly, therefore, no reasons were given for the disqualification orders the judge made.  Ground 2 is also made out.

26.  In respect of Ground 3, Mr Wong has drawn our attention to the resolution of the appeal in Wong Mun Ming, in particular at paragraphs 52 and 53:

“52. The risk that the appellant poses to others will be the primary concern of the court. But where the defendant is a professional driver who needs his licence to earn a living and to provide for those who are dependent upon him the court cannot ignore the additional hardship that disqualification will cause him. For such a person, and his dependents, any period of disqualification is a hardship, indeed from his point of view, it is an additional punishment.

53.  A sentence of 20 months’ imprisonment in conjunction with a 6‑year disqualification period means the appellant will be disqualified for 4 years 4 months after leaving prison. In our view this is, in all the circumstances, excessive. A 5‑year disqualification order will prevent him from driving for a period of 3 years 4 months after his release from prison. This is far more commensurate with the level of culpability of his driving and the risk he poses to the public. Furthermore, it allows him the prospect of returning to a driving career within a reasonable period of time should he wish to do so.”

27.  The appellant will be 59 years of age by the time he emerges from prison (assuming remission for good behaviour) and, therefore, 64 by the time the disqualification periods come to an end under the judge’s original order.  In our judgment, quite apart from the technical failings attending the imposition of the disqualification orders, we are satisfied that justice would be done if the periods of disqualification considered appropriate by the judge were ordered to run concurrently with each other from the date on which they were made, namely 12 June 2017.

28.  To that extent, this appeal against sentence is allowed.  The disqualification periods of 5 years and 2 years shall take effect concurrently with each other from the date of their imposition and not from the date of the appellant’s release from prison.  The other order to complete a driving improvement course, and the sentence of imprisonment, will remain unchanged.