CHANG WAI KWAN v. R.

IN THE COURT OF APPEAL

1994, No. 32
(Criminal)

-Headnote-

Criminal law - involuntary manslaughter - whether judge required to use the expression "reckless" to indicate the very high level of negligence required - whether the decision in Seymour [1983]77 Cr.App.R. 215 added anything to the "model direction" in Lawrence [1981]73 Cr.App.R.1 - whether there is any valid distinction between the statutory offence of causing death by reckless driving and the common law crime of motor manslaughter. Appeal against conviction dismissed.

Sentence - In the circumstances of the case Judge had no jurisdiction to impose driving disqualification under s69(1) Road Traffic Ordinance Cap. 374.

Principles in A.G. v. Chung Yim-chow [1986] HKLR 109 not followed by judge. Appeal against sentence allowed.

IN THE COURT OF APPEAL

1994, No. 32
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court:

1. This is an application for leave to appeal against conviction. The applicant was convicted before Wong J. and a July on 29 December 1993 on one charge of manslaughter, namely, that on 31 August 1992 at Sau Mau Ping Road, Kowloon he unlawfully killed Kong Wai-kuen. Upon conviction he was sentenced to two-and-a-half years' imprisonment and disqualified from driving for seven years.

2. The facts before the court were straight-forward. At about 8 am on 31 August 1992 the applicant was the driver of a tractor, that is, the locomotive part of a container lorry. He parked the tractor on the pavement at Sau Mau Ping Road on a slight slope, got out of the cab, removing the ignition key. He did not apply the hand-brake nor engage the gear. The tractor, a heavy vehicle, started rolling and the applicant chased after it but could do nothing about it. It gathered speed and crashed into railings killing the deceased, a female pedestrian, aged 62.

3. In answer to police inquiries the applicant said as follows:

"Q. Why weren't you on board the vehicle?

A. It was because I had come off duty, therefore I got out of the vehicle after parking it.

Q. Why was the vehicle still in motion since it had been parked?

A. It was because I neither applied the hand-brake nor engaged any gear.

Q. Why did you fail to engage the gear or apply the hand-brake after you had parked the vehicle as parking a vehicle on a slope like that is very dangerous?

A. When I saw the vehicle coasting downslope at the moment, I immediately chased after it as well as shouted to alert the passers-by to dodge."

4. At the trial the applicant gave no evidence and called no witnesses. The judge in his summing-up directed the jury as follows:

"The real issue which you have to determine is whether by his act or omission the accused created an obvious and serious risk of causing physical injuries to other users of the road. If he did, did the accused give any thought to the possibility of that risk or while recognizing that the risk existed he took that risk, and that is he was indifferent as to the consequences? This is the real issue and the crux of this case."

Recklessness

5. Mr Macrae, counsel for the applicant, says that in using the expression "obvious and serious risk" the judge did not sufficiently underline the need for a high degree of risk of death or injury; that the judge should have used the expression "reckless" to indicate the very high level of negligence involved in the crime of manslaughter. He referred for this proposition to the case of Andrews (1937)26 Cr. App. R.34. We cannot agree.

6. To convict the jury must first of all be satisfied that the applicant had created an obvious and serious risk. There is no need to substitute other words for that concept. This was done and it was sufficient to indicate to the jury the high degree of negligence necessary to constitute the threshold for the crime of manslaughter.

7. In fact the judge in this case went further. He outlined to the jury the prosecution case to the effect that the offence involved gross negligence and then he went on to say: "that is, parking a heavy vehicle on a slope without applying the hand-brake or engaging the gear". We are not satisfied that there is any substance in Mr Macrae's complaint.

Acts of commission or omission

8. Mr Macrae also referred to the case of R. v. Lowe (1973)57 Cr.App.R. 365 which dealt with a distinction in such cases between acts of commission and acts of omission. He complained that the judge failed to draw that distinction to the jury in this case. We cannot see how such a conceptual distinction would have assisted the jury. In a sense this case involved both acts of commission and omission. The applicant committed the act of parking a heavy vehicle on a slope; he omitted to apply the hand-brake and to engage the gear. Any discussion of the conceptual difference between these two matters would have been academic and confusing to the jury.

The case of R. v. Seymour

9. The direction which the judge gave to the jury followed Lord Diplock's judgment in R. v. Lawrence (1981) 73 Cr.App.R. 1. Mr Macrae on behalf of the applicant submits that this was not enough and referred to the case of Seymour (1983) 77 Cr.App.R. 215 where the court drew a distinction between the statutory offence of causing death by reckless driving contrary to section 50(1) of the Criminal Law Act 1977 and the common law offence of manslaughter. As the charge here is manslaughter Mr Macrae submits that following Seymour it was necessary for the judge to emphasize that to constitute the crime charged the risk of death must be very high. This, he says, the judge failed to do and amounted to a misdirection.

10. We note that Seymour turned upon very peculiar facts. The victim there a Mrs Burrows was the appellant's lover. On the day of the incident there had been a quarrel. The applicant was at the wheel of his 11-ton lorry and met Mrs Burrows driving a car in the opposite direction. There was a slight collision. Mrs Burrows got out of the car and approached the lorry. The appellant intending, so he said, to merely move the victim's car out of the way did so violently, pushing it some 10 to 20 feet away and in the process crushed the victim. One can readily see why in the circumstances of Seymour there might have been a need to add to the classic direction stated in Lord Diplock's judgment in Lawrence the additional statement concerning the risk of death: moving an empty car with an 11-ton lorry would not normally have caused death.

11. We note that in the subsequent case of Kong Cheuk-Kwan (1986)82 Cr.App.R. 18 there is no suggestion that a so-called "Seymour direction" had to be given, to add to what was thought adequate in the case of Lawrence. In Seymour the House of Lords said that such a direction was appropriate, not necessary. We see no reason why in the circumstances of this case any such further direction along the lines of Seymour was either necessary or appropriate. In our judgment there is no substance in this ground of appeal.

Putting the defence case

12. Mr Macrae also complained that the judge failed to put the defence case sufficiently to the jury. The difficulty facing the defence in putting this argument is this. The applicant did not give evidence and there was accordingly nothing before the jury to contradict the evidence adduced by the Crown. However, the judge in his summing-up did remind the jury of what defence counsel had submitted, namely that, in effect, the conduct of the applicant amounted no more than negligence: negligence sufficient to establish civil liability for damages but not enough to constitute the crime of manslaughter. This, in our judgment, was sufficient for the purposes of this case in putting the defence to the jury. This ground of appeal fails as well.

Conclusion

13. The judge had put the issues to the jury succinctly and with clarity. None of the criticisms of the summing-up are in our view justified. The application for leave to appeal must therefore be dismissed.

Sentence

14. The applicant also seeks leave to appeal against sentence as follows: (1) disqualification from driving for a period of seven years and (2) two-and-a- half years' imprisonment.

15. Mr Macrae on behalf of the applicant submits that as regards the order of disqualification this was erroneous in law and must be set aside. As to the sentence of imprisonment of two-and-a-half years his argument is that the sentence is manifestly excessive.

Disqualification

16. After conviction the judge asked counsel (none of whom appears in this court) for assistance regarding his powers of imposing disqualification. Regrettably no real assistance was forthcoming in the court below. The matter was capable of a simple reply. Instead of directing the judge to the statutory provisions empowering a court to order disqualification, counsel referred the judge to cases which were of no relevance to the point which troubled him.

17. Manslaughter is a common law offence. Disqualification from driving is not a sanction punishable by common law; the powers are given by section 69(1) of the Road Traffic Ordinance Cap. 374. None of the paragraphs under that provision covered the circumstances of this case. There could conceivably be circumstances under which a conviction for manslaughter might come within section 69(1)(h) which covers "any offence during the course of which he [the defendant] uses a motor vehicle" but this plainly is inappropriate to this case. In our judgment the judge had no power to impose the disqualification. It must follow therefore that his order must be set aside.

Two-and-a-half-years' imprisonment

18. The judge was referred to a number of old Hong Kong cases: for example, R. v. Sloss (1954) 38 HKLR 161, R. v. Fleming (1960) HKLR 125. In Sloss the defendant was sentenced to two years with hard labour, and in Fleming he was sentenced to three years' imprisonment. Those were cases of driving behaviour of the most reckless kind and were of no assistance to the court in considering the question of sentence in this case. It does not appear from the transcript that much emphasis was placed by counsel upon the principles set out in the case of A.G. v. Chung Yim-chow (1986) HKLR 109, although the facts of that case were referred to by defence counsel in his speech in mitigation.

19. In Chung Yim-chow, the principles set out Lord Lane LCJ'S judgment on behalf of the court in Boswell (1984)6 Cr.App.R. 257 were adopted by this court as being applicable to Hong Kong. Viewing the range of circumstances set out in Lord Lane's judgment at 259-260 it is clear that the circumstances of this case come within the lower end of the spectrum of criminality in crimes of this nature - or, at any rate, not within the higher range of the scale of culpability.

20. We were also referred to the case of R. v. Ko Yuk-ching (1992)1 HKCLR 191 where a train driver who failed to observe signals and failed to apply his emergency brakes appealed against a sentence of 12 months' imprisonment; on appeal that sentence was reduced to nine months. We do not regard that case as wholly comparable with the present case; indeed the question of failure to apply emergency brakes appears to be academic because, having failed to see the signals, plainly the driver would not have applied the emergency brakes.

21. There can be no dispute with the principle that in a case like this the only proper sentence was one of imprisonment and Mr Macrae has not challenged that proposition. However it is his case that having regard to the circumstances of the offence and the personal circumstances of the applicant the sentence of two-and-a-half-years' imprisonment is manifestly excessive. We agree. The applicant was at the time of the offence 28 years of age, having held a driving licence for about 10 years but been a professional container lorry- driver for only a few months. He did show some remorse in that immediately after the tragic event in August 1992 he voluntarily gave up his job as a driver of container lorries and took a job as a clerk.

22. In our judgment the sentence of two-and-a-half years' imprisonment is well outside the proper range for cases of this kind. Accordingly we give leave to the applicant to appeal, set aside the sentence of two-and-a-half years' imprisonment and exercising our best judgment in the light of the circumstances impose a sentence of one year's imprisonment; we so order.