SECRETARY FOR JUSTICE v. TSANG HO PONG

CAAR 6/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 6 OF 2009

(ON APPEAL FROM DCCC NO. 2 OF 2000)

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BETWEEN

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J U D G M E N T

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Hon Ma CJHC (giving the Judgment of the Court) :

1.  The present proceedings involve an application by the Secretary for Justice under section 81A of the Criminal Procedure Ordinance, Cap. 221 to review a sentence of 8 months imprisonment and 2 years disqualification in relation to a charge of dangerous driving causing death (contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374). The Respondent was convicted in the District Court after pleading guilty on 5 May 2009 and sentenced the same day by Deputy District Judge A. Wong.

2.  The relevant facts are as follows : ‑

(1)  The incident took place at about 2:50 p.m. on 30 August 2008 at the innermost (left) lane of the 3 lane south-bound West Kowloon Highway (from the direction of the New Territories towards the Western Tunnel).  The location was near the commercial complex known as Olympian City 1 in Mongkok.  The innermost lane led to a slip road towards Yaumati.

(2)  At the time, the Respondent was driving a medium goods vehicle (registration mark HH 6169).

(3)  The incident occurred when the Respondent collided with the back of a motorcycle and then rammed into the back of a container truck.  The motorcyclist was killed at the scene.  He was aged 27 years.

(4)  It was an agreed fact that at the time of the collision, the Respondent’s vehicle was travelling at 64 kph.  The speed limit for the Highway was 100 kph; for medium goods vehicles the limit was 70 kph.

(5)  At some point, the Respondent obviously attempted to apply the brakes on his vehicle.  Witnesses heard heavy screeching and there were skid marks on the road left by the Respondent’s vehicle, measuring 36.7 meters (on the near side) and 10.8 meters (on the off).  A gouge mark of 22.6 meters was left on the road by the motorcycle after the collision.

(6)  The impact on the container truck was significant in that the driver of the truck said he was jerked forward and pushed for some distance.

(7)  All vehicles involved in the accident were found to have been in good working order and not overloaded.  A breathalyser test was given to the Respondent but no alcohol was detected.  The weather conditions and visibility were fine.

(8)  A government forensic scientist calculated on the basis of a speed of 64 kph and a 0.9 second reaction time that the Respondent applied the brakes on the motor goods vehicle only 21 meters behind the motorcycle.  This was insufficient to avoid the collision.

(9)  Apart from the death of the motorcyclist, injuries were sustained by both the Respondent and the driver of the container truck.  According to the judge, the Respondent suffered bruising on his right hand, cruciate ligament tears at the knees and a fracture of the 4th metacarpal bone on his right hand.  It was said that this affected his ability to drive professionally and the judge below was told he was no longer able to earn a living by driving (there was no medical report to this effect however).  The driver of the container truck received slight injuries.

3.  The cause of the collision was the Respondent closing his eyes for 2 seconds while driving the medium goods vehicle. The judge said that the Respondent was not asleep, only that he closed his eyes for 2 seconds. According to the Respondent, he felt sleepy and therefore closed his eyes. Whether or not he was actually sleeping or had closed his eyes through being sleepy, is not a point of much distinction. He informed the police that he had gone to bed the night before at about midnight and returned to work on the day in question at 8 a.m. He claims that before he closed his eyes he had not noticed the motorcycle, only seeing this for the first time when he opened his eyes.

4.  The previous convictions of the Respondent numbered about 15: driving while disqualified, driving a motor vehicle without insurance, failing to comply with traffic signals or signs, speeding, careless driving, driving without using a seat belt, using a mobile phone while driving and failing to display a valid licence. It is an extremely poor driving record and one that includes all those driving offences that demonstrate the worst aspects of poor driving in Hong Kong. The range of sentences passed on the Respondent stretched from fines to disqualification, and also the imposition of 200 hours community service. Obviously, none of these sentences has really proved much of a deterrent to the Respondent, who can be said to be a person who simply does not respect traffic laws nor has he really appreciated the potentially dangerous practices he has hitherto been adopting. The offences stretch from about the time he obtained his driving licence (in 2000) to now.

5.  In our judgment, the judge was correct to be satisfied that the conduct of the Respondent was sufficient to establish the offence of causing death by dangerous driving (even though the Respondent had pleaded guilty). In sentencing the Respondent, the judge took into account the following matters : ‑

(1)  The appropriate principles of sentencing contained in the decisions of this court, among them Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.

(2)  That the maximum sentence for the offence (if on indictment) is now 10 years imprisonment (the increase from 5 to 10 years was made by amendment on 4 July 2008).  This is an indication of the seriousness with which this offence is to be regarded and the courts must fully take this into account.

(3)  The facts of the present case merited the imposition of a custodial sentence.  As Poon Wing Kay emphasized, regard must be had to the suffering caused to a victim’s family and the impact on people’s lives (see page 667J–668A at paragraph 10(2)); also to the need for an effective deterrence (see 668A–C at paragraph 10(3)).

(4)  Here, notwithstanding the fact that the Respondent closed his eyes for 2 seconds through drowsiness, the judge was of the view that the present case did not constitute the worst of its kind.

6.  Accordingly, the judge adopted a starting point of 15 months, reducing this by one third to take into account the plea of guilty. He made a further reduction of 2 months to take into account the Respondent’s injuries and the remorse shown by him. As we have said a disqualification order of 2 years was also imposed.

7.  In our judgment, the starting point adopted by the judge of 15 months was manifestly inadequate, and a more appropriate starting point ought to have been 24 months : ‑

(1)  We agree with the judge that account had to be taken of the very fact that the standard of driving displayed by the Respondent was dangerous, and that a death occurred.  It goes without saying that a death in these circumstances is always one that could and should have been avoided.

(2)  It was acknowledged by the judge that account had to be taken of the fact that the Respondent closed his eyes for 2 seconds.  This was as a result of his feeling tired.  Mr TL Kwan (who represents the Respondent) emphasized the point that the judge accepted that the Respondent did not “fall asleep” and was not “in a state of automatism” (although we have difficulty in understanding what this meant precisely).  What we think the judge meant was that the Respondent could not be said to have been sleeping for a lengthy period but the fact remains he had closed his eyes for 2 seconds as a result of drowsiness.  It can be taken he was not concentrating on the road for at least that period and almost certainly for a longer period before that.  We say ‘at least’ because it can be assumed if he was so tired as to close his eyes for 2 seconds that he must have been very tired up to that point for a period of time.  We know that the judge was not convinced that there was a sudden onset of tiredness, as the Respondent had initially claimed.  This is an aggravating factor given the obvious dangers caused by motor vehicles on the road.  Quite simply: if a driver is feeling so tired that he is no longer concentrating, he must stop driving.  To continue to do so is obviously very dangerous.  We noted that in the present case there was a shoulder which would have enabled the Respondent to stop.  In the present case, it resulted in a tragedy.  It is the sheer danger caused by being effectively unconscious that makes this an aggravating factor.  Some may say that this was just a momentary lapse of attention.  It is much worse than that in the present case.  As we have said, up to the point of losing consciousness (albeit for 2 seconds), there must have been quite a sustained period of drowsiness during which the driver was not doing what motorists are expected at all times to do: to pay attention, be alert and to concentrate on driving.  This factor is regarded as an aggravating one in other jurisdictions (see, for example, R v Cooksley [2003] 3 All ER 40, at 48J (paragraph 17)) and in our view, rightly so.  Whether this arises through lack of sleep or otherwise, does not really matter.

(3)  While the judge did allude to the Respondent’s previous convictions, the conclusion reached was merely that he did “not have a good record of driving”.  We think his record is much worse than is suggested by this somewhat benign statement.  As stated earlier, this record can be described as an extremely poor one and one is drawn inevitably to the conclusion that the Respondent (from almost the time he first obtained his driving licence) simply has no respect for traffic laws which have there to ensure that all who come into contact with motor vehicles are safe.

8.  In arriving at our decision, we have also taken into account the following considerations : ‑

(1)  The increase in penalty for the offence of dangerous driving causing death (from 5 to 10 years imprisonment).

(2)  The overall culpability of the Respondent.  While we agree with Mr Kwan that the facts of the present case fall within the lower categories of seriousness of this offence, it was nevertheless still dangerous driving.  We do not accept the submission that the standard of driving displayed only “marginally” fell below the requisite standard and that it was only “marginally” caught by the definition of the offence.  Closing one’s eyes through drowsiness or sleeping (there really is no difference) poses an extreme danger when driving a motor vehicle, even to the point of being reckless.  That said, we do not agree with the way Mr David Leung (who represents the Applicant) classified the incident, namely, as one involving a “selfish disregard for the safety of other road users”.

(3)  The deterrence element in sentencing for an offence such as the present.  In Poon Wing Kay, the court said this at 668A–C (paragraph 10(3))  : ‑

“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving: at p.46C‑E (para.11).  A motor vehicle, many may often forget, when not driven to requisite standard, can kill or maim.  The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

9.  The learned judge was careful in his analysis of the sentencing exercise and he did take into account the right factors, but we feel he has underestimated the seriousness of the dangerous driving involved and has not given due weight to the Respondent’s very poor record of previous convictions for traffic-related offences. In his case, more so than a first time offender, the need for a deterrent sentence becomes evident. In the circumstances, the sentence of 8 months was manifestly inadequate.

10.  With a starting point of 24 months, the Respondent is entitled to a third reduction on account of the plea of guilty. This is a reflection of the genuine remorse he feels but he is not, as the judge held, entitled to a further discount on account of this factor. Nor do we feel that the extent of his injuries is such that he is entitled to a discount in this respect either.

11.  The appropriate sentence should therefore have been 16 months. Given however that the present case is a review of sentence in relation to an offence where there have been very few authorities to offer guidance since the increase in maximum penalty and also that the estimated time (we are given to understand) for the Respondent’s discharge from prison (if the original sentence were maintained) is sometime next month, we are of the view that a sentence of 12 months is appropriate in the present case.

12.  For these reasons, the application for review by the Secretary for Justice is granted, and we order that there should be substituted a sentence of 12 months in place of the original sentence of 8 months. The 2 year period of disqualification should also be increased to 3 years. We do so for the reasons already given, in particular the previous record of the Respondent and the disregard for traffic laws hitherto shown (he has been disqualified twice before). Section 36(2A)(a) of the Road Traffic Ordinance states in relation to disqualification that in a case of a first conviction, the period of disqualification should be not less than 2 years. This would therefore be applicable to a first time offender. The Respondent is not a first time offender as far as traffic offences are concerned.