SECRETARY FOR JUSTICE v. POON WING KAY AND ANOTHER

CAAR2/2006 & CACC536/2005

CAAR2/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 2 OF 2006

(ON APPEAL FROM DCCC NO. 422 OF 2005)

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BETWEEN

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CACC536/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 536 OF 2005

(ON APPEAL FROM DCCC NO. 422 OF 2005)

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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) :

CAAR2/2006

1.  On 13 December 2005, the Defendants Poon Wing Kay (the 1st Defendant) and Liu Chun Pong (the 2nd Defendant) were convicted after trial in the District Court of the offences of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap.374 (“the RTO”) and of causing harm to persons by racing vehicles, contrary to section 33 of the Offences against the Person Ordinance, Cap.212 (“the OAPO”).

2.  Sections 36(1), (2), (4), (6) and (7) of the RTO state as follows : -

“36.	Causing death by dangerous driving
	(1)	A person who causes the death of another person by driving a motor vehicle on a road dangerously commits an offence and is liable -
		(a)	on conviction on indictment to a fine at level 5 and to imprisonment for 5 years;
		(b)	on summary conviction to a fine at level 4 and to imprisonment for 2 years.
	(2)	A person convicted of an offence under subsection (1) shall be disqualified -
		(a)	for a period of not less than 2 years in the case of a first conviction; and
		(b)	for a period of not less than 3 years in the case of a second or subsequent conviction,

unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

	(3)	…
	(4)	A person is to be regarded as driving dangerously within the meaning of subsection (1) if -
		(a)	the way he drives falls far below what would be expected of a competent and careful driver; and
		(b)	it would be obvious to a competent and careful driver that driving in that way would be dangerous.
	(5)	…
	(6)	For the purposes of subsections (4) and (5), ‘dangerous’ refers to danger either of injury to any person or of serious damage to property.
	(7)	For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including -
		(a)	the nature, condition and use of the road concerned at the material time;
		(b)	the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and
		(c)	the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.”

3.  Section 33 of the OAPO states : -

“33.   Driver of carriage, etc., injuring person by furious driving

          Any person who, having the charge of any carriage or vehicle, by wanton or furious driving or racing or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years.”

4.  On 22 December 2005, H H Judge Whaley sentenced the 1st Defendant to 2 years’ imprisonment for the dangerous driving charge and 15 months’ imprisonment for the racing charge (both sentences to run concurrently).  He was also disqualified from driving for a period of 2 years under section 36(2) of the RTO.  As for the 2nd Defendant, he was sentenced to concurrent terms of imprisonment of 2½ years for the dangerous charge and 15 months for the racing charge.  Like the 1st Defendant, he was disqualified from driving for a period of 2 years.

5.  The Secretary for Justice applies for a review of these sentences under section 81A of the Criminal Procedure Ordinance, Cap.221 on the basis they are manifestly inadequate and wrong in principle.  The 2nd Defendant has also separately sought leave to appeal against sentence, having earlier abandoned an application for leave to appeal against conviction.

6.  The offences all relate to the events that took place at about 5:46 am on 22 October 2004, at the junction of King’s Road and Healthy Street East in North Point (“the Healthy Street junction”).  There, a red-topped public light bus (GU964) driven by the 1st Defendant (“the 1st Defendant’s vehicle”) collided first with a taxi (KM3673) which had been crossing the junction and then with another red-topped public light bus (JL407) driven by the 2nd Defendant (“the 2nd Defendant’s vehicle”) who was overtaking the 1st Defendant’s vehicle at the time.  The 2nd Defendant’s vehicle overturned.  The 1st Defendant’s vehicle was carrying some 8 or 9 passengers, the 2nd Defendant’s vehicle 14 passengers and the taxi, 3 passengers.  The result of this accident was that 2 passengers in the 2nd Defendant’s vehicle (a man aged 58 and a woman aged 23) suffered multiple injuries from which they died later the same day and 17 other persons were injured (being the driver of the taxi, a passenger in the taxi, 3 passengers in the 1st Defendant’s vehicle and 12 passengers in the 2nd Defendant’s vehicle).  The injuries ranged from bruising to fractures and medical attention was required.

7.  This was by any standard a terrible accident with tragic consequences and one that words cannot adequately describe.  The photographs we have seen depicting the aftermath showed extensive damage to both public light buses and the taxi.  The central divide along King’s Road was ploughed into by the 1st Defendant’s vehicle.  There was rubble everywhere : damaged bollards, bumpers, broken glass, railings etc.

8.  The events leading up to the accident were essentially as follows (we have taken them from the Judge’s Reasons for Verdict and the testimony of the witnesses described in the Reasons; the Judge largely accepted the evidence of the prosecution witnesses) : -

(1)	Both public light buses were travelling in a westerly direction on King’s Road in the early morning of the day in question, both picking up passengers along the way.  At some stage, they began racing against one another in an attempt to compete for passengers.
(2)	One of the passengers in the 1st Defendant’s vehicle (one Mak Wing Kan who was a taxi driver by profession – PW3) told of the 1st Defendant driving very fast along King’s Road, speeding past traffic lights regardless of the colour of them.  He told of at least two sets of traffic lights that were red when the 1st Defendant’s vehicle passed them (this not including the lights at the Healthy Street junction) : those at the junction of King’s Road with Greig Road and with Tong Chong Street.  He described his state of mind when approaching the Healthy Street junction in this way : “the speed of the vehicle was so fast that your brain could not see anything.”  Mr Mak described the 1st Defendant’s manner of driving in this way : he simply did not care and ignored traffic lights.  Mr Mak (like the other 7 or 8 passengers in the 1st Defendant’s vehicle we assume) was very nervous, holding onto the seat in front of him.  Whenever the 1st Defendant picked up passengers, he would sometimes stop in the middle of the road.
(3)	Another passenger in the 1st Defendant’s vehicle (Lau Kwok Leung –PW4) confirmed the aggressive way in which the 1st Defendant drove.  He was in fierce competition for passengers and would attempt to block other vehicles if they were intending to pick any up.  Like Mr Mak, Mr Lau told of the 1st Defendant ignoring red lights and simply rushing past them.
(4)	Mr Chung Kam Fuk (PW5) was a passenger in the 2nd Defendant’s vehicle.  He is a bus driver.  He described how soon after he boarded, the 2nd Defendant was driving at high speed rushing through the red lights at the junction of King’s Road and Tong Chong Street.  After that junction, he noticed how another public light bus (the 1st Defendant’s vehicle) cut into the lane on which the 2nd Defendant’s vehicle was travelling, causing the 2nd Defendant to brake.  The two public light buses then began to race each other.  He described how at the junction where the North Point Primary School was located, both public light buses charged through the red lights at high speed.  Mr Chung said he felt scared, he had the feeling that the situation was very dangerous and that an accident could occur anytime.
(5)	Another passenger (Kwok Ka Lok – PW6) talked about how the 2nd Defendant overtook vehicles at high speed.  He referred to the 1st and 2nd Defendants’ vehicles trying to overtake each other.  After the junction at the primary school, he noticed how the two vehicles were racing close to one another.  His testimony was supported by that of another passengers, Ma Ki Chau (PW8).
(6)	As both vehicles approached the Healthy Street junction, the 2nd Defendant began to overtake the 1st Defendant’s vehicle.  Thus, far from slowing down at this junction, the 2nd Defendant in fact accelerated.  And for his part, the 1st Defendant, again instead of slowing down, also speeded up in an attempt to keep up with the 2nd Defendant’s vehicle.  This junction was controlled by traffic lights and at the time both vehicles went into the junction at the intersection with Healthy Street East, these lights were showing red.  The lights had not just turned red : they had clearly been red for sometime because a pedestrian who was attempting to cross King’s Road at the junction, Mr Tse Yun Choi (PW1), told of the pedestrian lights at the junction flashing green.  Evidently, both public light buses approached the Healthy Street junction in the same way as previous junctions : the intention was simply to ignore the red signal.
(7)	Just as both vehicles went into the intersection with Healthy Street East, a taxi slipped into King’s Road from that street.  The lights regulating the traffic from Healthy Street East were on green.  The driver of the taxi was Wong Wai Hung (PW2).  He had almost reached the second lane of King’s Road (a three-lane highway going west at that point) when he heard loud braking and he saw a public light bus (the 1st Defendant’s vehicle) rushing at him at great speed.  His thought at that time was, as he put it, “I am doomed.”
(8)	The 1st Defendant’s vehicle crashed into the right front of the taxi and then veered right colliding with the 2nd Defendant’s vehicle.  Following this, the 2nd Defendant’s vehicle flipped over to its side.  The 1st Defendant’s vehicle remained upright but ploughed into the central divide.
(9)	The scientific evidence showed that both vehicles were travelling at high speed.  The estimate was that the 1st Defendant was travelling at 51 kph just before he started to brake hard (causing skid marks).  The estimate of the various witnesses of the speed of the two vehicles as they raced along King’s Road ranged between 50 to 70 kph.  The evidence also showed that the traffic lights at the Healthy Street junction were in working order at the time of the accident.

9.  The Judge found both Defendants guilty under section 36(1) of the RTO and section 33 of the OAPO.  In his Reasons for Sentence, he described the driving of both Defendants as “exceptionally dangerous driving” and the act of accelerating into the Healthy Street junction as “absolutely inexcusable”.  These were not, in our view, exaggerations.

10.  In sentencing the Defendants, the Judge adopted a starting point of 2½ years for the dangerous driving charges for both Defendants.  He found, as we have, great assistance in the English case of R v Cooksley [2003] 3 All ER 40.  There, the Court of Appeal laid down sentencing guidelines for the offences of dangerous driving and careless driving causing death when under the influence of drink or drugs.  While admittedly the sentencing guidelines for the offence of dangerous driving causing death in that case 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, a number of general principles found in the judgment of Lord Woolf CJ can be stated as being equally applicable in Hong Kong (we also add some observations of our own) : -

(1)	In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly : - at page 45j (paragraph 11).  This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.
(2)	Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased : - at page 46a (paragraph 11).  The impact on people’s lives ought to be taken into account when sentencing.
(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 page 46c-e (paragraph 11).  A motor vehicle, many may often forget, when not driven to requisite standards, 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.
(4)	While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  In assessing the overall seriousness of a crime, culpability is often the dominant factor : - at page 47b (paragraph 14).  It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence.  Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.  In some cases, the fact that only some aggravating factors exist, but not others (such as in the present case), may still bring the case into a very serious category.
(5)	One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians) or with a degree of recklessness : - at page 46f-d (paragraph 12).

11.  In his Reasons for Sentence, the Judge referred to the headnote in Cooksley which sets out the sentencing guidelines in England for various scenarios involving dangerous driving causing death.  Some 16 aggravating factors are enumerated together with some mitigating factors.  He then listed out the aggravating and mitigating factors in the present case to arrive at a starting point of 2½ years for each Defendant.  The Judge then took some mitigating factors further into account to reduce the starting point by 6 months as far as the 1st Defendant was concerned.  He was therefore sentenced to 2 years’ imprisonment on the dangerous driving charge.  For the 2nd Defendant, the Judge found there were no mitigating factors and accordingly did not reduce the starting point of 2½ years.

12.  For the racing charge, both Defendants were sentenced to 15 months’ imprisonment.  Both were also disqualified from driving for a period of 2 years.

13.  In our judgment, the sentences imposed by the Judge on the Defendants were manifestly inadequate and wrong in principle.  We are of the view that for both Defendants, the maximum term of 5 years’ imprisonment should be imposed for the dangerous driving charges and the maximum term of 2 years be imposed for the racing charge.  We are also of the view that both Defendants should be disqualified for a period of 12 years each.  Our reasons for revising the sentences are as follows : ­

(1)	The conduct of both Defendants as outlined earlier showed an utter and selfish disregard, if not contempt, for the safety and well-being of all who came into contact with their driving : their own passengers, other passengers and other road users.  Driving through red lights as if the lights did not exist and as if they were the only users of the road, racing against one another in an attempt to grab passengers, no attempts made to slow down at junctions (in fact quite the opposite) were all indicative of this.
(2)	The Defendants’ conduct was without doubt reckless and in the words of the Judge “prolonged, persistent and deliberate”.  These were not momentary lapses of judgment.  The evidence indicated that the 1st Defendant went through about 10 sets of traffic lights and the 2nd Defendant, 6 sets (including those at the Healthy Street junction) without stopping or slowing down.
(3)	The consequences of this driving, which both Defendants must have known was dangerous, were tragic.  Two persons lost their lives, many more were injured.  One can only shudder when thinking that the consequences could have been far worse.  The pedestrian, Mr Tse (PW1), was about to cross the westbound lane of King’s Road to catch a tram and had he done so even though the pedestrian lights were in his favour, he would have sustained extremely serious injuries.
(4)	The Defendants were no doubt in a rush but in doing what they did, they deliberately took the risk not just of being prosecuted for breaching traffic laws, but, far worse, of endangering people’s lives.
(5)	The standard of driving of these Defendants was appalling and in our view totally unacceptable and must rightly be condemned.  The safety and well-being of members of the public in Hong Kong are paramount and the public must be adequately protected from the type of driving the two Defendants displayed.  It should not be forgotten just how many of the witnesses testified to the very real fear they felt at the time for their lives.  In a letter from the 2nd Defendant addressed to the court yesterday, he denies “absolutely” that he was risking any lives by racing.  We disagree : he and the 1st Defendant were doing exactly that.
(6)	The traffic offence records of the Defendants are also appalling.  The 1st Defendant has a record since 1996 of having been convicted of 10 traffic offences, one of which was committed after the present offence.  Four were for careless driving.  He has been disqualified twice.  The 2nd Defendant’s record is far worse.  Since November 2002, there have been 27 convictions for traffic offences including 9 for failing to comply with traffic signals.  Two of the convictions for failing to comply with traffic signals were committed after the present accident when he was driving a bus in Lantau.  His record is truly appalling.
(7)	Additionally, it must not be forgotten that the Defendants were each driving vehicles for the carriage of members of the public.  Such professional drivers must be acutely aware of the necessity to be safe and not to risk people’s lives and safety.  This provides yet another aggravating feature in the present case.
(8)	In our view, what the Defendants did come within the worst category of the type of offences under consideration.  In no other case cited to us have the facts been so bad.  The utter disregard for the lives and safety of others may well have attracted manslaughter charges where upon conviction, sentences in excess of 5 years might well have been imposed.  Be that as it may, although we suppose worse facts than the present case can conceivably exist, this does not mean that maximum sentences should not be imposed.  It is to the category or type of seriousness or culpability that the court looks when sentencing.
(9)	In terms of the culpability of both Defendants, they are exactly the same.  The periods of disqualification reflect the seriousness of the offences and their poor previous records.  It is a disturbing fact that persons such as the 2nd Defendant in this case find themselves in a position where they are enabled to drive public transport vehicles despite a simply appalling driving record.  Before this accident this particular driver had accumulated since November 2002 along over 25 driving violations including a large number of failing to have regard to traffic signals, and indeed after this accident, as we have earlier mentioned, was still driving public buses and committing 2 further offences of failing to comply with traffic signs.  The fact that this can occur should be a matter of grave public concern and we are comforted by Mr Leung’s assurance that he will raise in the appropriate quarters what measures exist, if any, to screen those who are permitted to drive public vehicles.

14.  In our view the Judge erred by failing to consider the gravity of the overall circumstances of the offences.  In some parts of his Reasons for Sentence, he seemed to regard as important the fact that only some of the aggravating features mentioned in Cooksley, but not others, existed and this perhaps might explain his low starting points.  However, once account is taken overall of those aggravating features and other circumstances we have earlier identified, it is clear that the present offences are in the most serious category and that maximum sentences ought to be imposed.  The Judge was also wrong to reduce the 1st Defendant’s sentence by 6 months on account of his remorse and good character.  In the circumstances of the present case, these factors are of little or no weight.  Additionally, we have to say that the evidence of remorse is thin.

15.  It follows then that the application for review by the Secretary for Justice is granted and there is to be substituted the following sentences : -

(1)    For the offences of dangerous driving causing death, there should be substituted a sentence of 5 years’ imprisonment for each Defendant.

(2)    For the racing offence, there should be substituted a sentence of 2 years for each Defendant.

(3)    Both sentences are to run concurrently.

(4)    Each Defendant is to be disqualified from driving for a period of 12 years on the dangerous driving charges.

16.  We have considered whether in the light that the present proceedings are by way of review, there should be a discount in the sentences to be imposed.  However, in the circumstances, we do not feel it is appropriate to make any allowance at all.

17.  This case is not only illustrative of a prolonged and wicked course of driving by drivers with a combined number of about 24 passengers on board but is illustrative also of the need to deter those who, in the pursuit of commercial gain, or indeed for any other reason, place at risk the lives of members of the public who entrust their safety to drivers of public transport vehicles.  A remarkable feature of the mitigation advanced in this case on behalf of one of the drivers was that, as it was put : “competing is part and parcel of the job”.  That may be so but the sooner it is realized that such competition cannot be tolerated if it is at the risk of passengers, the better; and we say at once that in any case of dangerous driving the fact that the driver is driving a public transport vehicle is an aggravating feature and that traffic violations in such circumstances will be met with no sympathy whatsoever by the courts.

18.  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.

CACC536/2005

19.  The 2nd Defendant’s application for leave to appeal against sentence, for the reasons just given, is dismissed.