HKSAR v. CHAN CHEUNG OI

[English Translation – 英譯本]

CACC 9/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 9 OF 2015

(ON APPEAL FROM DCCC 392/2014)

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JUDGMENT

Hon D Pang JA (giving the Judgment of the Court):

1.  This is an appeal from the District Court.  The appellant was convicted after trial of one charge of “causing death by dangerous driving”, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374, Laws of Hong Kong.  He was sentenced by the trial judge (HH Judge Yip) to imprisonment for 2 years and 3 months and ordered to be disqualified from driving for 6 years and to complete a mandatory driving improvement course and pass a retake of driving test before his driving licence could be restored.  By leave of a single judge, the appellant formally appealed against the sentence.  After the hearing, we indicated that we would hand down our judgement in writing later.  We now give our judgment.

Charge

2.  It was alleged in the charge that the appellant, on 2 November 2013, inside a construction site of the road widening works project on Tolo Highway, did drive a heavy goods vehicle (called “dump truck” in colloquial term) bearing registration number RM7388 dangerously, thereby causing the death of a female construction site worker surnamed Law (transliteration).

Facts of the case

Scene of the accident

3.  The construction site in question was 4 km long but only 12 m wide. Gammon Company (“Gammon”) was the principal contractor of the whole project.

4.  The scene of the accident was the inner part of the construction site, where works of road paving and building of flyover were respectively carried out by Yat Lam Company (“Yat Lam”) and Hung Wing Company (“Hung Wing”), who were subcontractors of Gammon.

In the course of the incident

5.  At 10 am on the day in question, the appellant was driving the truck in question to deliver building material for Hung Wing.  The location for unloading was about 80 m from the entrance to the construction site.

6.  According to Ms Chong (transliteration), a banksman of Gammon, she, by using walkie-talkie and traffic baton, guided the appellant to reverse to the “bridge connection point” which was 20 to 30 m from the entrance to the construction site, and then directed the appellant to stop with the walkie-talkie and hand gestures.  After the appellant had stopped, Ms Chong returned to the entrance to the construction site to continue to direct traffic.

7.  Ms Chong did so because the scope of her work covered only the stretch of road mentioned above, whilst the part between the bridge connection point and the unloading location should be the responsibility of the banksmen of Yat Lam and/or Hung Wing.  Such narration was consistent with what other prosecution witnesses said.  Ms Chong admitted that she did not tell the appellant that she would leave and did not notice if the appellant started the truck again.

8.  According to the facts found by the trial judge[1], the appellant had continued to reverse on his own without the guidance of any other banksman, and consequently knocked down and ran over the deceased who was in uniform, namely wearing a reflective vest, and paving the road at the “area of the accident”.

9.  According to the description given by another worker Mr Tsang (transliteration) who was near the deceased: at the material time, on hearing the deceased scream, Mr Tsang turned his head to take a look and saw the nearside rear tyre of the truck in question run over the deceased; it was not until he (Mr Tsang) went to the front and shouted at the appellant to stop did the appellant know things had gone wrong; excavators were in operation at the scene of the accident but it was not noisy; and he (Mr Tsang) did not hear any reversing warning sound emitted from the truck in question.

10.  Mr Man (transliteration), a foreman of Yat Lam supplemented as follows: both the deceased and Mr Tsang were workers under his charge doing paving work, and there were also other workers working in the construction site at the material time.

Police investigation

11.  PC 59020 was the first police officer arrived at the scene upon receiving the report.  According to him, the appellant after his enquiry admitted that there was no one “keeping a lookout for what was behind” for him at the time of reversing, and that he stopped only when someone shouted at him.

12.  PC 46702 was another police officer who went to the scene to investigate.  He said that test result showed there was no alcohol inside the appellant’s body.  Moreover, the appellant indicated to him that he had looked at the reverse camera monitor at the time of reverse and had been observing the rear by looking in the offside wing mirror and looking back but did not see there was any person, and hence he continued to move backward, and it was not until someone told him to stop that he realized someone had been hit.

13.  After the incident, PC 54816 tested the offside and nearside wing mirrors and the reverse camera monitor of the truck at the vehicle examination centre.  On the driver’s seat he made observation of seven traffic cones which were placed at different locations at the back of the truck by looking into the nearside and offside wing mirrors and at the reverse camera monitor.  He found that when the vehicle was stationary, there was a blind spot of “0.3 m far x 0.4 m wide” in the driver’s view of the rear of the truck on both the nearside and offside.

14.  Finally, the police found that the reversing alarm of the truck in question was not in order.  The vehicle examination report concerned also proved that the said alarm had mechanical defect(s).

15.  Both the prosecution and the defence agreed the following: the weather was fine on the day in question; the appellant was reversing at a speed similar to that of walking without exceeding the speed limit of 8 kph inside the construction site; the appellant had reversed the vehicle on his own for a distance of about 60 m; and the deceased finally lay dead on the ground in front of the nearside tyre of the second axle counting from the tail of the truck in question.

Verdict after the trial

16.  The trial judge found the appellant guilty for the following reasons.

17.  1. The appellant reversed the vehicle on his own with nobody keeping a lookout for what was behind for him.

18.  2. Regulation [38]1A of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A of Laws of Hong Kong provides: “Every goods vehicle shall also be fitted with an automatic alarm capable of giving audible and sufficient warning when it is reversing and is about to reverse.”  However, the reversing alarm installed on the truck in question had already gone out of order, and this was within the appellant’s knowledge when he started to reverse.

19.  3. According to the Road Traffic Ordinance, Cap 374, the behaviour constituting dangerous driving is determined by the basic definition (section 36(4)), and in addition, it is necessary to take into account the state of the vehicle concerned at the material time (section 36(5)) and the nature and condition of the road where the vehicle concerned was (section 36(7)(a)).

20.  In respect of the condition of the truck in question at the material time, the trial judge said[2]:

“42.  As to ‘driving the motor vehicle concerned in its current state’ stated in section 36(5) of the Ordinance, I find that the defendant was fully aware of the following three crux matters before the accident:

(1)  The reversing audio alarm of the dump truck was already not in order and not able to give warning;

(2)  There was a blind spot of 0.3 m far and 0.4 m wide in the view of both the nearside rear and offside rear, which was just big enough to accommodate one person; and if a small build worker [such as the deceased] walked from the nearside rear or offside rear of the vehicle into the said blind spot when the defendant was reversing the vehicle, he would not be able to see;

(3)  When the defendant was reversing, he had to look over to the traffic condition of the nearside and offside repeatedly, and when he turned his head to check or looked in the offside wing mirror, he could not see the nearside body of the vehicle or the traffic condition directly behind; on the other way round, when he turned his head to check and look in the nearside wing mirror, he could not see the offside body of the vehicle and the traffic condition directly behind it. These are blind zones in addition to those regarding the reverse camera monitor. The said dump truck was 9.3 m long and 2.5 m wide, and its goods compartment was higher than any person.  It was inevitable that this 2.5 wide blind zone directly behind just re-appeared again and again.”

21.  In regard to the nature and condition of the road concerned, the trial [judge] also said[3]:

“41.  As to ‘the nature, condition and use of the road concerned’ stated in s 36(7) of the Ordinance, I find that the defendant was fully aware of the following two important matters before the accident:

(1)  There were some large obstacles at various positions on the 12 m-wide haul road at the scene, for example, there was first a large heap of rubble on the right; and then were two excavators ‘A’ and ‘B’, while A was 6 m long and 2.6 m wide and B 6.8 m long and 3 m long; and lastly there was a roller on the left near the location of the accident, which was 4.8 m long and 2.6 m wide, and there were also some red-and-white traffic cones for demarcating the excavators and the roller;

(2)  This haul road was also the working area of the workers, where some workers were walking or operating mechanical vehicles.”

22.  In summary, the trial judge’s view was[4]:

“43.  Summing up the two limbs, namely ‘the nature, condition and use of the road concerned’ and the defendant was ‘driving the motor vehicle concerned at its current state’, which have been analysed above, I find that the defendant while knowing that there were workers working on the ground nearby, knowing that the reversing alarm was not in order, knowing that it was necessary to look over to the traffic condition on both the nearside and offside so as to avoid the obstacles on the right and left of the haul road, knowing that he had to check more frequently to ascertain if there was enough space on the right side when the dump truck was going through the partly occupied haul road (eg there were two excavators on the right), he would not be able to attend to the possible passing or stay of anybody (such as the deceased or other workers) around the nearside rear or directly behind simultaneously, nevertheless, under such circumstances, he still chose to reverse without anybody assisting him to keep a lookout for what was behind, and he eventually ran over the deceased who was at the back of the truck.”

23.  Basing on the above reasons, the trial judge found that the defendant had been driving in a way that fell far below what would be expected of a competent and careful driver [5].  Although it was not stated explicitly, it was obviously the trial judge’s view that in regard to a competent and careful driver, the defendant’s way of driving was plainly dangerous.

Sentencing by the trial judge

The appellant’s personal background and mitigation

24.  As the trial judge has recounted[6]:

“24.  The defendant is now 51 years old. ... Except having been fined $2,500 in 2008 for driving or being in charge of a motor vehicle which had marked oil in the fuel tank of that motor vehicle, he does not have any other criminal conviction record. He has no conviction record of any traffic offence, except the following four related to fixed fine....

....

“26.  ... His present wife is 37 years old and they have an 11-year-old son who is now in primary six. His mother is old and in poor health. She is now staying in an old aged home in the mainland. Every month he has to pay $2,000 to support her basic living expenses. This case happened on 2 November 2013. Being uncertain of the development of the case, the defendant sold the said dump truck in June 2014 and changed to work as a part-time driver, while his wife has worked as a part-time security guard earning a monthly income of about $7,000. In future, when the defendant serves his sentence, his family’s livelihood will be seriously jeopardized. Their case has been followed up by the Social Welfare Department, but the comprehensive security allowance is less than her income and the family will not be able to make both ends meet.  For the sake of looking after the son, the wife is considering whether she should continue to work.”

The appellant’s personal background and mitigation

25.  The trial judge quoted the case of R v Cooksley [2003] 3 All ER 40, which is an authoritative precedent widely adopted as reference in England and Hong Kong.  He also distinguished the present case from certain precedents cited by the defence. His conclusion was[7]:

“38. The defendant drove in a way that caused the death of a woman. There are three aggravating factors in this case:

(1)  The said dump truck was a large motor vehicle, which was long, wide and heavy. The bottom of the goods compartment at the back was particularly high above the ground, making it easy to trap people underneath;

(2)  The defendant was fully aware in advance that the reverse would take much time (at least one minute[8]);

(3)  The reversing alarm was out of order, which was against the Laws of Hong Kong, and the engine of the dump truck would not produce loud noise because it was not reversing uphill, so it was highly likely that the workers working there did not notice the truck was reversing.”

26.  Regarding the first aggravating factor, the trial judge made the following analysis which was the reason for taking the huge size of the truck in question as an aggravating factor[9]：

“33.  It can be seen in both Pang Kun Wah[10] and Topasna[11]that the aggravating factors set out in Cooksley are not exhaustive. Moreover, Latham LJ has also mentioned in the above paragraph [para 13] in the judgment of Topasna that a driver controlling a large vehicle on a road which was busy with pedestrian traffic required the greatest vigilance. In my view, this reflects that the duty borne by the driver of a large vehicle is greater than that borne by the driver of a small vehicle, and the former’s culpability would be greater when the offence of dangerous driving is involved. This is an aggravating factor.”

27.  As to the second aggravating factor, ie the issue of reversing, he explained[12]:

“34.  Further, according to the part entitled “Reversing” on page 45 of the Road Users’ Code:

‘If you cannot see clearly behind or if driving a large vehicle, get someone to guide you when you reverse. You must not reverse unless it can be done safely and you must not reverse for an unreasonable long distance or time. Never reverse from a side road on to a main road.’

35.  Regardless of the size of the vehicle, if the driver has anticipated that the reverse would take a long time for a long distance, but he is not able to see the situation behind clearly, and there is no one to guide him when backing up, then it is risky to reverse, which is what the aggravating feature is.”

28.  Finally it is the third aggravating factor — the defective reversing alarm[13]:

“36.  I have also made reference to the above case of Fong Chai Man[14]. The defendant drove a goods vehicle and when he was reversing in Po Hing Fong from the end near Pound Lane to the other end, he knocked down and killed a male and a baby in the man’s arms. He pleaded guilty before a magistrates’ court and the maximum sentence then applicable to a summary conviction was imprisonment for a term of 2 years. The magistrate adopted a starting point of 12 months’ imprisonment. The Department of Justice applied for increase of sentence. Eventually, the case was heard before the Court of Appeal of the High Court. The prosecution challenged the magistrate for failing to take the defective reversing alarm as an aggravating factor. Hon Cheung JA had the following views:

“[The prosecutor] emphasised that had the reversing alarm of the vehicle not gone out of order, it would have given warning to the pedestrians and thereby the traffic accident could have been avoided.  We agree with this contention [of the prosecutor].  However, this court has also taken into account that even if a heavy goods vehicle did not give any warning when it was reversing uphill, it would produce fairly loud noise.  Therefore, in our view, it was not a wrong decision that the trial magistrate did not adopt a higher starting point because of the defective alarm in such case. (para 17(3) of the judgment)”

37.  The reversing alarm concerned in this case was not in order, which is contrary to Regulation [38](1A) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A, Laws of Hong Kong. This is an aggravating factor.”

Actual term of sentence

29.  To sum up, the trial judge had the following views[15]:

“39.  While having no urgency to reverse, the defendant just backed up the vehicle on his own right away without trying to seek help from others. This decision was made under no pressure and in no emergency whatsoever and was extremely irresponsible, ignoring the safety of other road users just for the sake of momentary convenience. Ultimately, there was loss of an invaluable life.

40.  The defendant [at that time] could not clearly see what was behind when reversing, he knocked down and killed a person. His low speed may be the only factor that can be considered as not so unfavourable to him. I will adopt a starting point of 12 months for the sentence, which will be raised by adding 9 months, 6 months and 6 months respectively in regard to the above three aggravating factors, meaning a term of 2 years and 9 months. The only matter which may be regarded as a mitigation factor is the serious jeopardy possibly caused to his family when he is imprisoned. For this reason, I will reduce the sentence by 6 months, making it a term of imprisonment of 2 years and 3 months.

41.  I hereby order that the defendant shall be disqualified from driving all classes of vehicles for a period of 6 years from the date of sentence, and he shall complete a mandatory driving improvement course and retake a driving test before his driving licence can be restored. I order him to be retested because he will have no chance to drive during the disqualification period, and his driving skill is expected to retrogress. A retest can ensure his driving skill to be up to standard so as to protect the safety of himself and other road users.”

Grounds of appeal

30.  After reorganization, the appellant’s complaint with leave granted by a single judge may be summarised into the following points:

(1)  The trial judge should not have treated the large size of the truck in question as an aggravating factor.

(2)  The trial judge should not have treated the appellant’s prior knowledge of the long time that would be taken by the reverse as an aggravating factor.

(3)  The trial judge should not have treated the reversing alarm being defective as an aggravating factor.

(4)  In any event, the term of the sentence in the present case was manifestly excessive.

31.  The appellant during the hearing applied to this court to add an additional ground of appeal that the disqualification period was too long. Leave was granted by this court.

Discussion

Driving large vehicle

32.  The trial judge has increased the sentence in this regard in total reliance on a passage in the judgment of Topasna (see para 26 above and para 33 of the Reasons for Sentence), which reads as follows:

“13. The facts that we have related make it plain why this was a particularly difficult sentencing exercise. This does not fall into the category of cases where there has been any significant period of bad or irresponsible driving. It does not have any of the usual aggravating features, such as drink, or, in itself, excessive speed. This is a case where the cause of the incident was an error made by the appellant in identifying the differences between his brake pedal and his accelerator. That, in the circumstances, amounted to dangerous driving in itself. This has to be put in the context of a driver controlling a very large vehicle in an area which was clearly extremely busy with pedestrian traffic. It was a situation, accordingly, which required the greatest vigilance. The way in which the appellant dealt with the crisis with which he was confronted was in itself, as described by the judge, an extreme consequence of pedal confusion. And last, but not least, the consequence have been devastating. This is a case where the court was bound to take into account the substantial loss of life which was occasioned by this tragic error.” (words in italics denotes the part that the trial judge has relied on)

33.  However, one has to look into the facts of the case so as to correctly understand this passage of Latham LJ.  The defendant “T” of the case was driving a double-decker in a Sunday evening and drove to a bus stop outside a funfair to let off passengers and take on board other passengers.  The area was extremely busy as one might imagine because it was a holiday.  There were families walking to and fro, crossing the road and in fact going in front of the bus.  Unfortunately, just at the moment when T was about to pull off the bus stop, ie when T released the handbrake and changed to use the footbrake, he mistakenly put his foot on the accelerator, and even wrongly thought that the brake failed and hence stepped on the pedal repeatedly.  Consequently, the bus dashed forward for 160 m, causing the death of five pedestrians, serious injury to one person and injuries to many others.

34.  Under the factual background concerned, we do not think that Latham LJ’s words could be cited in such a simple way as a support to increase the sentence imposed on the driver of a large vehicle.  Viewing the passage in its entirety, it is apparent that Latham LJ meant: confusion of the two foot pedals in itself undoubtedly amounted to dangerous driving, whilst the level of seriousness depended on the circumstances under which the incident occurred.  That is to say, T, as a driver controlling a very large vehicle in an area which was clearly extremely busy with pedestrian traffic, ought (but failed) to have had the greatest vigilance on his own driving, nevertheless, he not only failed to rectify the error promptly, but even allowed the matter to go beyond control and take away the lives of many.  It was also the reason why although Topasna did not fully have the relevant aggravating features identified in Cooksley, the English Court of Appeal still acknowledged the trial judge’s view, finding that the case should be regarded as falling into the most serious category of dangerous driving in sentencing.

35.  Therefore, the size of the vehicle may have some bearing on the sentence, but the court cannot mechanically jump to the conclusion that the driver of a large vehicle must be more culpable than the driver of a small vehicle because it also depends on the overall facts of individual cases.

Knowledge that the reverse would take long

36.  The appellant has been convicted of dangerous driving primarily for the reason that he had reversed without any assistance from anybody[16]. The length of time taken or the distance reversed wholly depended on the location of unloading (“behind the third ‘crane’”[17]) and could not be the appellant’s personally decision unless he was determined to ignore the instructions given by the recipient party (Hung Wing) and unload the materials at wherever he wished.  

37.  In addition, the trial judge said that “while having no urgency to reverse, the defendant just backed up the vehicle on his own right away without trying to seek help from others.  This decision was made under no pressure and in no emergency whatsoever ....”  (see para 29 above and beginning of para 39 of the Reasons for Sentence).  We also find these words arguable.  Taking it to the highest, the trial judge might only say that the appellant had never mentioned in his testimony that he was running out of time.  Conversely, it is quite normal for professional drivers to wish to finish the work as soon as possible.

38.  We have the above observations because we find it necessary to assess the appellant’s culpability more objectively.  The reason was that if the comment of “taking the risk under no pressure with full knowledge that the reverse would take longer time” was not over-stressed, the appellant’s culpability would be back to “reversing by himself without assistance from anybody” which was his basic culpability.  In such case, the second aggravating factor referred to by the trial judge amounts to double counting of the culpability.

Defective reversing alarm

39.  The defective reversing alarm was one of reasons for which the trial judge found the appellant guilty of dangerous driving (see paras 18, 19 and 20 above).  This is reasonable.  Under the circumstances where there was no one to assist in keeping a lookout for what was behind, the mirrors and monitor had blind spots, and the alarm was defective and unable to alert people at the scene, it was undoubtedly dangerous to reverse.  However, after reaching such conclusion, the trial judge went further to consider the defective reversing alarm as an aggravating factor.  This was obviously a mistake of double counting of culpability.

40.  Certainly, according to the facts found by the trial judge, the defect of the alarm was within the appellant’s knowledge (see para 22 above and para 43 of the Reasons for Verdict), but we do not think this point is of much significance.  As the driver (in fact the owner) of the truck in question, the appellant had the duty to ensure the proper functioning of all parts of the truck.  The appellant had failed in his duty, in allowing the alarm to remain defective, which contributed to part of the cause of this case of dangerous driving, and this has already been covered by the appellant’s primary culpability.  Therefore, it is not appropriate to enhance the sentence for the reason of appellant’s knowledge; it might be a mitigating factor if there was evidence to prove he had no knowledge.

Causes of the mistake

41.  In considering the sentence for the offence of causing death by dangerous driving, the appropriate starting point can generally be achieved by referring to the aggravating/mitigating factors identified in precedents.  For example, in the case of Cooksley, categorization of cases according to various level of culpability, such as intermediate, higher and most serious culpability for the court to apply the corresponding starting point depends on whether an individual case has one or more than one of the aggravating factors of different levels set out in Cooksley.  Certainly, as the English Court of Appeal pointed out in Topasna, it was not an exhaustive statement of factors in Cooksley (see para 34 above) [18]; and the Court of Appeal in Hong Kong has also in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 emphasised that sentencing in this kind of cases should not be done mechanically by ascertaining the existence of any aggravating factor but should instead consider the defendant’s overall culpability with flexibility[19].  Nevertheless, the above approach remains the fundamental approach in sentencing for the offence of causing death by dangerous driving.  The trial judge in the present case has erred for not only departing from the relevant approach but also failing to observe the indications given by this court in Poon Wing Kay.  It is speculated that the trial judge might have misunderstood the case of Cooksley, thinking that the lowest starting point for cases having one death and no aggravating factor (which was then 12 to 18 months in England[20]) should first be adopted as the starting point in the present case, which should then be raised corresponding to the aggravating factors that he found to be in existence one by one, resulting in problems such as double counting of culpability.

Correct sentence

42.  Secretary for Justice v Fong Chai Man [2008] 3 HKLRD 493 is the precedent provided by the two parties, of which the facts are most similar to the present case. The facts of the case are as follows:

“4.  On 1 September 2006, at around 8:50 am, the respondent was driving a good vehicle bearing registration number FH 9971, which was 6 m long, 5.5 tonnes, carrying one crane and two passengers.

5.  The respondent reversed the goods vehicle in Po Hing Fong from the end near Pound Lane to the other end. After reversing for about 40 m, near the pavement at the junction of Po Hing Fong and Upper Station Street, it knocked down a man and an 11-months-old baby girl in the man’s arms, who were both run over by the nearside rear tyre of the goods vehicle. The baby girl died at the scene and the man was also certified dead on arrival at the hospital. The location where the two deceased fell down was about 2 m away from the pavement. The respondent stopped the vehicle at once upon the occurrence of the accident. According to the video recording of the CCTV at the scene, it was estimated that the respondent was reversing at a speed of about 10 kph. The tread depth, reversing alarm and reversing light(s) of the goods vehicle all had defects (namely Charges 2, 3 and 4).”

43.  On the basis of the above facts, the trial magistrate of the case adopted a term of 12 months as the starting point for the offence of causing death by dangerous driving (Charge 1), and for the defendant’s plea of guilty, reduced it to 8 months and made a disqualification order against the defendant for a period of 2 years.  The Department of Justice thought the sentence was unduly lenient and applied to this court (differently constituted) for review of the term of imprisonment and the length of disqualification period.

44.  Eventually, Tang VP, Cheung and Yuen JJA sitting in the Court of Appeal allowed the application of the Department of Justice in respect of the disqualification order (which was extended to 4 years) but dismissed their application regarding the term of imprisonment (the term of 12 months upheld), and the reasons for which can be seen at paras 13 to 19 of the judgment of the case.

45.  From the facts of the present case and Fong Chai Man and the analysis of the Court of Appeal in Fong, it can be seen that there are quite a lot to be compared and contrasted in the two cases:

(1)  Both cases involved large vehicles, whilst this point was not taken as an aggravating feature in Fong.

(2)  The defendant in Fong had reversed for quite a long distance but largely because of the actual needs arising from the situation of the road, which the Court of Appeal found not to be regarded as an aggravating factor.  The appellant in the present case reversed the vehicle on the instructions given in the construction site.

(3)  In Fong, there were passengers who could (but did not) keep a lookout for what was behind for him straight away.  There was no evidence in the present case that the banksman of Yat Lam or Hung Wing had ever gone to take over from Ms Chong at the scene right away.

(4)  Both Fong and the present case did not involve reckless behaviour such as drink driving, speeding or driving against traffic light signal.

(5)  The defendant in Fong knocked down the victims after it had reversed for about 40 m, which was about 20 m shorter than the distance that the appellant has backed up in the present case. The appellant in the present case reversed at less than 8 kph, which was slower than the speed of 10 kph involved in Fong.

(6)  The Fong case involved a vehicle having defective reversing alarm but the Court of Appeal found that since the case happened on a slope, a large vehicle would produce loud noise when reversing and pedestrians should have been alerted.  Hence it was correct that the magistrate had not raised the starting point for this reason.  The reversing alarm in the present case was also defective, which might be considered as an aggravating factor.

(7)  There were few pedestrians and light traffic at the scene in the Fong case. In the present case, somebody must be working at the scene but there was no evidence that it was crowded with workers.  In any event, the appellant did not meet any difficulty in reversing for 60 m.

(8)  Two people died in the Fong case, one of them was even a baby.  Only one died as a result in the present case.

(9)  The defendant in Fong had many criminal convictions and also traffic convictions, and he was even described by the Court of Appeal as a driver persistently contravened traffic regulations.  The appellant in the present case had a clear record of criminal conviction or traffic contravention.  He has had only four fixed penalties over the years.  His record can be described as very good for a professional driver.

46.  This court does not overlook the differences between the background of the Fong case and the present case:

(1)  In the Fong case, it involved a summary conviction, while it was a conviction on indictment in the present case.

(2)  According to the legislation at the time of sentencing in Fong, for the offence of causing death by dangerous driving, the maximum sentence for a summary conviction was a term of 2 years and that for a conviction on indictment was 5 years. 

(3)  At the time of the present case, the legislation has been revised.  For the same offence, the statutory maximum sentence remains 2 years on a summary conviction, but that for conviction on indictment has been changed to 10 years.

(4)  After the revision of the legislation, the disqualification period that the offence calls for has been increased from not less than 2 years to not less than 5 years for first conviction, and raised from not less than 3 years to not less than 10 years for a subsequent conviction.

47.  To conclude, it is really unfortunate to have someone injured or died in the case.  However, having considered all the circumstances and factors relevant to the present case, this court finds that the appellant’s culpability involved only a momentary error of judgment, and the starting point for sentence should not be more than 21 months.  In view of the appellant’s previous good driving record, we exercise our discretion and reduce the term of sentence by 3 months to 18 months, and there is no other reason for any further reduction.  Similarly, the appellant’s disqualification period should not be more than 5 years, and at the end of the disqualification period, he is still required to attend a driving improvement course and pass a retake of driving test before his driving licence can be restored.

Judgment

48.  The appeal is allowed with the original term of sentence and disqualification order set aside and be substituted with a term of imprisonment for 18 months and an order of disqualification for a period of 5 years (having to attend a driving improvement course and pass a retake of driving test at the end of the disqualification period before the driving licence can be restored).

[1] The defence of the appellant at the trial was: Ms Chong had not left and had in fact kept a lookout for what was behind for him; he had not told any police officer that he had reversed on his own without any assistance; at the material time he did not hear any sound of the reversing alarm, which might be due to the noise in the construction site.  However, these were all rejected by the trial judge.

[2] Para 42 ofthe Reasons for Verdict.

[3] Para 41 ofthe Reasons for Verdict.

[4] Para 43 of the Reasons for Verdict.

[5] Para 46 of the Reasons for Verdict.

[6] Paras 24 to 27 of the Reasons for Sentence.

[7] Para 38 of the Reasons for Sentence.

[8] To be precise, it was “one to two minutes” in the appellant’s testimony: page 94K-N of the appeal bundle.

[9] Para 33 of the Reasons for Sentence.

[10] HKSAR v Pang Kun Wah CACC 410/2013.

[11] R v Stephen Geroge Topasna [2007] 1 Cr App R (S) 76.

[12] Paras 34 and 35 of the Reasons for Sentence.

[13] Paras 36 and 37 of the Reasons for Sentence.

[14] Secretary for Justice v Fong Chai Man[2008] 3 HKLRD 493.

[15] Paras 39 to 41 of the Reasons for Sentence.

[16] See para 17 above.

[17] P 83E of the appeal bundle.

[18] This point has in fact been mentioned in the judgment of Cooksley (para 15.)

[19] This point has also been mentioned in the judgment of Cooksley (paras 13 to 14).

[20] At the time of sentence in Cooksley, the maximum sentence for the offence of causing death by dangerous driving was 10 years in England, and was subsequently revised to 14 years.