THE QUEEN v. CHAU TAI

1989, No. 960

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H E A D N O T E

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Careless driving - death of victim irrelevant factor in sentence - prison sentence only appropriate in cases of gross negligence or deliberate risk-taking.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 960 OF 1989

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J U D G M E N T

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1. The appellant was convicted on his own plea of careless driving by Mr Wright in South Kowloon Magistrates Court. He was sentenced to two months imprisonment, fined $4,000 and disqualified for 18 months.

2. On 10th December, 1988, at 3.40 a.m., the appellant was driving a private car westwards on the Gascoigne Road flyover. At a left-hand bend the car mounted the centre island, hit a bollard and crossed into the opposite carriageway, where it collided with an oncoming taxi. A passenger in the appellant's car was killed and the six occupants of the taxi were injured, some seriously. The appellant himself was in hospital for 56 days.

3. At the time of the accident the weather was fine and the road surface dry. The bend in question is a slight one and certainly not a hazard in those conditions and at that time of night. There is no suggestion that the appellant had been drinking.

4. Nor, on the admitted facts, can the accident be attributed to speed. The only evidence of the appellant's speed was contained in his statements to the police, in which he admitted driving at 60 k.p.h. That is only 10 k.p.h. in excess of the speed limit.

5. Unfortunately, due to a typographical error, the speed was stated in the "brief facts of the case" as 60 m.p.h. It was also stated that "he lost control over his is vehicle apparently due to fast speed". He had no previous convictions. The appellant was unrepresented at the time of his plea and, perhaps not paying attention, he agreed that the facts were correct.

6. On those facts the magistrate sentenced the appellant to three months imprisonment. A week later he was asked to review the sentence by counsel for the appellant, who drew the typographical error to his attention, and also informed him that she appellant had received four fixed penalty tickets, including two for speeding, in the four and a half years in which he had held a licence.

7. The magistrate said that had he known this at the earlier hearing, he would have sentenced the appellant to four months, but in view of the lesser speed he would reduce the prison term from three months to two.

8. There are two important matters to be considered. First, the magistrate took the fact of death into consideration in accessing sentence. In doing so, he was following Chan Kwai-lai v. R. [1968] H.K.L.R. 31. In that case the appellant drove a vehicle at about 55 m.p.h. at 2.30 p.m. in Leighton Road and killed a pedestrian on a street crossing. He pleaded guilty to careless driving and was sentenced (inter-alia) to three months imprisonment. In dealing with the question whether it was proper to take into account the consequences of the appellant's driving, Blair-Kerr J. said at p.42:-

"But, judging by the sentences passed by certain courts in respect of this offence, I am unable to escape the conclusion that these courts sometimes fail to take cognizance of the great potential danger to life which a careless motorist creates. It is the creation of this potential danger which is prohibited by s.14 of the Road Traffic Ordinance; and in very bad cases, the maximum penalty may appropriately be imposed."

His conclusion at p.43 was :-

"It also appears that a court is fully entitled to consider all the circumstances of the case, including the fact (if it be a fact) that the person convicted has caused the death of a person quite irrespective of whether the charge before the court is manslaughter, dangerous driving, careless driving, or drunken driving."

9. This view has not been adopted by the English courts.

10. In R v. Simpson [1981] C.L.R. 649, the appellant was convicted of careless driving on an indictment for causing death by reckless driving. The appellant had been driving a lorry with a tendency to pull to the left when the brakes were applied. In negotiating a double bend he lost control of the vehicle, which slid across the road and killed an approaching motor cyclist.

11. The Court of Appear said that this was not a case of momentary inattention, it was a case of driving a loaded lorry on a wet road with knowledge that the brakes had the tendency stated. Nevertheless it reduced the fine from £200 to £100 and the period of disqualification from 12 months to three.

12. In R v. Krawec [1985] R.T.R. l, the appellant, riding his motor cycle in London, collided with and killed a pedestrian. He admitted that he might have gone through a red light and that he saw the pedestrian too late. He was acquitted of causing death by reckless driving, but was convicted of driving without due care and attention. Reducing the fine from £350 to £250, Lord Lane C.J., giving the judgment of the Court of Appeal, said at p.3:-

"The question therefore arises if (as it appears) the judge did take into account the fact that a death occurred, was he entitled to do so?

In our judgment, the unforeseen and unexpected results of the carelessness are not in themselves relevant to penalty. The primary considerations are the quality of the driving, the extent to which the appellant on the particular occasion fell below the standard of the reasonably competent driver, in other words, the degree of carelessness and culpability. The unforeseen consequences may sometimes be relevant to those considerations.

In the present case, the fact that the appellant failed to see the pedestrian until it was too late and therefore collided with him was plainly a relevant factor. We do not think that the fact that the unfortunate man died was relevant on this charge. Since it seems that the fact of the death influenced the judge to some extent we consider some reduction in the amount of the fine is appropriate."

13. These decisions, in my respectful opinion, accord more with logic than that in Chan Kwai-lai. The consequences of an accident may sometimes have little relevance to the penalty that should be imposed. Sometimes a period of momentary inattention can have tragic results, while a piece of extremely bad or wicked driving can fortunately result in an offender escaping any accident.

14. This approach seems to have been adopted by de Basto J. in R. v. Kwok Kam-wah MA 90/88.

15. The second matter was also referred to by the magistrate in his Statement of Findings in which he cited R. v. Mak Kan [1978] HKLR 39. In that case Briggs C.J. allowed an appeal by a public light bus driver who had run down and killed a pedestrian on a driving crossing. He was convicted of dangerous driving causing death and sentenced to three months imprisonment. Substituting a fine for the prison sentence, the judge agreed with counsel's suggestion "that this offence can be divided into two separate categories. One, where the accident is caused by an error of judgment or foolishness and, two, where the accident is caused by the deliberate taking of risk or driving in an irresponsible manner .... only for an offence coming within the second category should a custodial sentence be imposed".

16. This decision was endorsed by the Court of Appeal in R. v. Cheung Kin-man [1981] HKLR 684, a case of dangerous driving causing death, in which it was held that it was only in cases of gross negligence, or deliberately dangerous driving, that an immediate prison sentence was appropriate. The sentence was reduced from three months to one month and suspended as an act of mercy.

17. Finally, in R. v. Lin Wing-chung MA 811/85, another case in which a fatal traffic accident had resulted in a conviction for careless driving and a sentence of two months imprisonment, I said at p.7:-

"Tragic though the facts of the present case are, 45 m.p.h. on the Tuen Mun highway is a far cry from 55 m.p.h. approaching a pedestrian crossing in Leighton Road. The essence of the careless driving in this case was the appellant's failure to drive in such a manner as to ensure that he could stop in an emergency. This was not deliberate risk-taking.

I am satisfied - and the magistrate concedes as much - that that speed does not merit a sentence of imprisonment. I consider the proper penalty to be a fine of $1,500."

18. The accident in the present case must have been caused by momentary inattention - perhaps he fell asleep - or error of judgment, but, on the admitted facts, the appellant was not deliberately taking a risk or driving in an irresponsible manner.

19. The prison sentence was therefore wrong in principle and is quashed. The period of disqualification is reduced to six months. The fine will stand.

20. The appeal is allowed and the sentence varied accordingly.