HKSAR v. LEE YAU WING

CACC 282/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 282 OF 2012

(ON APPEAL FROM DCCC NO. 352 OF 2012)

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant was charged with causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374.

2.  He pleaded guilty before District Judge G Lam on 6 July 2012 and was sentenced on that day to 10 months imprisonment.  In addition, he was disqualified from driving for a period of 2 years and also ordered to complete a driving improvement course at his own expense within the last 3 months of his qualification period.

3.  The applicant is appealing the sentence imposed upon him.  But his appeal is concerned only with the length of the term of imprisonment imposed upon him and not with the other orders that were made.

Background to the Offence

4.  The plea of guilty was based upon an Amended Summary of Facts which set out the circumstances of the accident.

5.  The accident occurred at 11:34 a.m. on 10 October 2011.  The applicant was driving a private motor vehicle registration number LE 1198 and was travelling uphill towards the junction of Hong Ning Road and Chun Wah Road, Sau Mau Ping, Kowloon.  This junction is controlled by traffic lights and has a yellow striped pedestrian crossing marked on the road.

6.  The speed limit for this section of the road is 50 km/hour and at the material time the road service was dry and in good repair.  The weather was fine and the traffic flow was light.  The visibility at the scene was good.  In view of the way in which this appeal has been argued, we believe it is necessary to actually quote the facts which the applicant admitted at his sentencing hearing.  The following paragraphs extracted from the Amended Summary of Facts describe how the accident happened.  The abbreviation “V” refers to the applicant’s motor vehicle:

“4.  Prior to the collision, Yip Fung (aged 75)(“PW1”) wanted to cross Hong Ning Road to go to the park on the opposite side.  She noticed that the green pedestrian light signal governing the yellow-striped pedestrian crossing on the south side of the junction was flashing.  As she thought the remaining time was still sufficient for her to cross the road, she then stepped out to the crossing slowly.  When she reached the second lane of the road, her knee was suddenly hit by V.  She then fell onto the ground.  When being hit by V, PW1 noticed that the green pedestrian light signal was still flashing.

5.  Before the collision, Wong Wai-leung (“PW2”) was driving his mini-bus along the 1^st lane of the uphill bound of Hong Ning Road.  Upon reaching the said junction, he stopped his mini-bus before the stop line as the traffic signal governing his direction was red. He then saw PW1 crossing the road from the nearside pavement slowly via the pedestrian crossing.  At that time, PW1 was at about 2 to 3 feet in front of PW2’s mini-bus.  When PW1 had just walked past his mini-bus for about 3 to 4 feet, V suddenly appeared on the 2^nd lane and its nearside front hit the right side body of PW1 at the pedestrian crossing, PW1 then fell onto the ground.

6.  PW2 immediately conducted a check and found that the traffic light signal governing his direction was still red.

7.  Yip Yuen-man (“PW3”) was a passenger on PW2’s mini-bus.  Before the collision, PW2’s mini-bus stopped at the junction as the traffic signal governing its direction was red.  Having stopped for about 1 to 2 seconds, she heard sounds of horn emitting from behind.  At this juncture, she saw V travelled past PW2’s mini-bus and then heard some sound.  V then stopped.  At the material time, the traffic light signal was still red.  After about 3 to 4 seconds, PW2’s mini-bus set off when the traffic light signal changed to green.  PW3 then found PW1 lying on the ground.”

7.  The victim was sent to the accident and emergency department of United Christian Hospital.  She had injuries to her right leg and knee, and was diagnosed as having suffered a tibial plateau fracture of her right knee.  She was treated by open reduction and internal fixation and then put on non-weight bearing walking after her operation. 

8.  The Amended Summary of Facts also made reference to the applicant’s caution statement, in which he admitted that he was driving his vehicle at about 40 km/hour before the accident.  The applicant complained that the mini-bus obstructed his view, and that as a result he could not observe the victim’s presence on the pedestrian crossing.

Mitigation

9.  The applicant is 49 years of age, and has been married for 23 years. He had been working as a truck driver for a period of 10 years during which time his income averaged $25,000 per month.  He was in fact the sole breadwinner of his family.  He has held a driving licence for close to 30 years, and the significant income he obtained from his driving work contributed to the support of his son of 16 years of age and a daughter of 20 years of age.  Since the accident he has lost his job as a driver and prior to his sentencing was earning only $9,000 per month as a casual worker.  This substantial loss in income has adversely impacted upon his family and forced his wife to obtain employment.

10.  The date on which the accident occurred was in fact the applicant’s son’s birthday and the applicant had taken leave of absence from work in order to celebrate that birthday.  His counsel at trial, who also now appears for him on appeal, portrayed the accident as happening in the following way:

“Now, that the Defendant of course admits wholeheartedly that he was being careless and that he was lost in the enjoyment of his day, specifically his son’s birthday, and with that particular frame of mind, he drove his vehicle forward and injured PW1 as a result.”

11.  Other matters advanced from the bar table, which seemed to have been accepted, are that the speed at which the applicant was driving just immediately prior to the actual collision was only approximately 15 km/hour.  Also accepted was that the force of the impact was so slight that it did not in fact knock the victim over. 

12.  The applicant appears to have been treated as a person with a clear criminal record although he did have a previous conviction for careless driving.  He expressed regret and sincere remorse for the accident.  Finally, the injuries which the victim suffered seem to have healed completely without leaving any residual disability.  Given the victim’s age it is most fortuitous for her, and for the applicant, that she was not more seriously injured. 

13.  Counsel for the applicant referred to the statement that the victim had given to the police which was as follows:

“The impact of the collision was not enough to make me fall down, but I felt very painful in the right knee. I knew I was hit by a white private vehicle. The left side of the vehicle front end hit my right knee while the green pedestrian light was still flashing green. And then after 2-3 seconds, I felt my right leg was weak, so I supported myself on the vehicle and slowly sat on the ground”

14.  An important part of the applicant’s mitigation, and a point which was repeated before us on appeal, was that this was not the worst case of dangerous driving as it lacked some of the more serious aggravating factors such as road racing, evasion of roadblocks, the driver being under the influence of intoxicants and excessive speed.  However, as the District Judge himself reminded counsel for the applicant, what he was faced with was a driver who had run through a red light and that was serious.  In the course of the mitigation the following exchange between bench and bar took place. 

“COURT: But one thing I cannot overlook is the fact that he ran through a red light.

MR SHAH: Indeed. I certainly do understand that. As stated, your Honour, the context, as I said, was a frame of mind of carelessness, distraction, and as stated, it was his son’s birthday and, unfortunately, such a terrible event did occur …..

COURT: Yes.

MR SHAH:   … on such a day for the defendant …”

The Reasons for Sentence

15.  The trial judge accepted that the applicant was truly remorseful and that he accepted responsibility for his actions.  He referred to the paragraph that had been quoted to him from the victim’s witness statement and accepted that the applicant was only travelling at 15 km/hour and that the injuries to the victim were not of the most serious kind.

16.  The judge referred to the decisions of this Court in Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601 and Secretary for Justice v Wong Wai Hung [2011] 2 HKC 224 where the Court had emphasized the importance of bearing in mind the need for deterrent sentences for cases of dangerous driving.  The importance of the Lam Siu Tong case is that in it this Court indicated that an accident taking place because a motorist had disregarded traffic lights when approaching a pedestrian crossing was a matter which would be regarded as a serious aggravating feature and that conduct which showed a conscious disregard for traffic lights would put a case into the most serious category.

17.  In describing the accident the trial judge said:

“The cause of the accident is the defendant’s driving through a red light (albeit at a relatively low speed) at a pedestrian crossing, which is a serious aggravating feature according to the Court of Appeal. Although the defendant has a good background and is a good husband and father, the offence he committed is a serious one and cannot be treated lightly. In my view, an immediate custodial sentence is inevitable.”

18.  Shortly thereafter, clearly bearing in mind the need for deterrent sentences, he made the following comment:

“However, the court must send a proper message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.”

19.  He thereupon adopted a starting point of 15 months imprisonment which he then discounted by one third to allow for the applicant’s guilty plea.  This resulted in a sentence of 10 months imprisonment and that is the sentence he imposed.

The Grounds of Appeal

20.  There is essentially only one ground of appeal and that is that the judge adopted an excessively high starting point in determining his sentence. His starting point was of course 15 months imprisonment and it is said that he erred in adopting such a high starting point because:

(1)  he failed to consider the cases of HKSAR v Tang Chen Ming CACC 227/2002 and HKSAR v Chan Chi Chiu, Louis DCCC 1184/2011 and this contributed to his mis‑characterising the applicant’s driving as coming within the most serious category of cases;

(2)  in relying upon the cases of Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601 and Secretary for Justice v Wong Wai Hung [2011] 2 HKC 224 he failed to distinguish between cases involving dangerous driving causing death and those causing grievous bodily harm;

(3)  in having regard to the comment to the Court of Appeal in Secretary for Justice v Lam Siu Tong that “… the degree of seriousness will of course depend on the precise circumstances.  For example, a conscious disregard for traffic lights will likely put the case into the most serious category”, the judge failed to appreciate the importance of giving consideration to the precise circumstances of the case;

(4)  he wrongly characterised the applicant’s driving conduct as exhibiting a conscious disregard for traffic lights without considering that the degree of seriousness is based on the precise circumstances of the particular case;

(5)  such a starting point was excessive given the consequences to the victim; and

(6)  the judge wrongly made an assessment on the likelihood of there being any permanent effect on the victim.

Discussion

The legislative context

21.  Section 36A was only recently enacted and was presumably intended to fill the obvious gap that existed in the range of offences available to prosecute driving misconduct.  Previously the consequences of a driver’s misconduct were matters taken into account in sentencing for the offence that criminalised that misconduct, whether it was careless driving or dangerous driving.  But the legislature recognized that that was not a sufficient response by society to the problem of serious driving misconduct. Because a motor vehicle has the potential to cause so much harm the legislature has, over the years, reviewed the adequacy of our law and when it felt it necessary to do so has created new offences or increased the penalties for existing offences.

22.  As is well known the range of harm that can be caused by a motor vehicle can be anything from death to severe brain injury or paraplegia or just scratches and bruises.  The less serious harm does not need its own offence for these consequences can readily be addressed by the sentencing judge and accommodated within the maximum punishment set by the legislature.

23.  But where the harm is more serious the legislature has decided that there should be a separate offence to cater for it.  What this separate offence does is to make the causation of this serious harm an element of the offence and provide for this offence a maximum penalty greater than that which is provided for the offence of dangerous driving simpliciter.

24.  Thus within the Road Traffic Ordinance there are now 3 offences of dangerous driving.  They are, in order of ascending gravity, dangerous driving simpliciter (section 37); causing grievous bodily harm by dangerous driving (section 36A) and causing death by dangerous driving (section 36).  The maximum penalties for each of these offences upon conviction on  indictment are as follows:

Dangerous driving – a fine at level 4 and imprisonment for 3 years.

Causing grievous bodily harm by dangerous driving – a fine at level 5 and imprisonment for 7 years.

Causing death by dangerous driving – a fine at level 5 and imprisonment for 10 years.

25.  Clearly the enactment of new offences containing additional elements to reflect the harm caused by the driving, either grievous bodily harm or death, and providing greater maximum penalties for them, reflects an intention of the legislature that these offences should be punished more severely.  That, of course, must be reflected in the sentences of the courts.

The relevant sentencing principles

26.  How a person attracts criminal liability for dangerous driving is determined by application of the provisions of sections 37(4) – (8), 36A(10) – (14) and 36 (4) – (8).  All of these provisions are identical.  The important point to note from these provisions is that they do not require proof of any specific intent to drive dangerously or to cause grievous bodily harm or death.  Whether a driver’s driving was dangerous is a matter to be decided objectively.[1]

27.  It is this lack of an intent that prompted the English Sentencing Panel to conclude that when sentencing for the offence of dangerous driving causing death greater prominence should be given to the culpability of the driving. This approach was discussed by the English Court of Appeal in R v Cooksley [2003] 3 All ER 40.  At pages 46h - 47b Lord Woolf CJ said, under the heading of “Assessing the Seriousness of an Offence”:

“[13] In the advice the panel expresses their view in these terms:

‘13. The key problem for a sentencer dealing with this offence is the tension between the outcome of the offence (which is inevitably the death of at least one victim) and the degree of the offender’s culpability. The Panel’s provisional view, that the offender’s culpability should be the dominant component in the sentencing exercise but that outcome of the offence should have some effect, was strongly endorsed by the majority of respondents to the consultation paper. The Panel understands the view of the minority, that causing death is invariably a very serious crime, but reaffirms its initial view that culpability must be the dominant factor when the offence involves no intention to kill or injure.’

[14]    As we have made clear, in accord with the view of the minority referred to in the advice, we accept that causing death is invariably a very serious crime.  None the less, we do not dissent from the panel’s view that culpability must be the dominant factor when assessing as precisely as possible just where in the level of serious crimes the particular offence comes.”

28.  This approach was endorsed by this Court in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 at 668D and has been applied by this Court in many other decisions since.  This seems to us to be an equally appropriate approach to the offence of causing grievous bodily harm by dangerous driving. For this offence the range of harm is considerable from the situation of the victim in the present case, who only suffered a fractured knee to the victim who may be rendered paraplegic.  Furthermore the harmful consequences of a driving accident may be disproportionate to the level of culpability of the defendant’s driving.  A car accident caused by appalling driving may present as an horrific scene to onlookers but the occupants of the car or cars may walk away with comparatively less serious injuries.  But an accident caused by a low level of culpability may nevertheless result in death or terrible injuries.  There can be an element of randomness in the outcome of an accident and the present case is a prime example.

29.  Here the applicant drove slowly onto a pedestrian crossing against a red light not knowing what he might encounter because his vision was obstructed by a mini-bus which had stopped waiting for the lights to turn green.  What he did encounter, emerging from the front of the mini‑bus, was an elderly person who, quite fortuitously for the applicant, ultimately recovered quite uneventfully from her injuries.  But what if the person crossing in front of the mini-bus had been a woman in an advanced state of pregnancy or a child rushing ahead of its parent or a baby in a stroller – in any of these cases the consequences could have been much more disastrous.

30.  Consequently even though the harm caused by the driving misconduct is an important matter for the sentencing judge to take into account, it is not given the same prominence as the culpability of the driving misconduct.

31.  In determining the culpability of a defendant’s dangerous driving we see no reason to treat the section 36A offence any differently from the other dangerous driving offences in the Road Traffic Ordinance.  A substantial body of case law has developed since this court’s decision in Secretary for Justice v Poon Wing Kay and even though most of it relates to the offence of causing death by dangerous driving there is no reason why it should not apply to causing grievous bodily harm by dangerous driving, after making whatever allowance may be necessary for the fact that in the latter offence no death flows from the dangerous driving.

32.  This focus on the culpability of the driving has been adopted by the courts notwithstanding that it is a sad feature of this offence that the offender is usually not a person of a criminal background but is a law abiding citizen of good character performing an action, namely driving a motor vehicle, that is so common and widespread in our society there is a tendency to take it for granted, no longer recognizing that it is a privilege attendant with responsibilities.  Consequently the person appearing before the courts is usually an otherwise law-abiding citizen who, for only this one occasion in his life, finds himself being prosecuted for having breached the criminal law.  Yet, because of the nature of the offence he has committed, he further finds that he does not receive the usual advantages of being a first offender and a person of good character and that the court is less concerned with imposing upon him a sentence that is rehabilitative in nature but a sentence that seeks to accommodate other sentencing principles.

33.  Consequently, rather than trying to discern from other cases, all of which turn on their own particular facts, what sentence should be imposed on this applicant, we think it is more helpful to identify the sentencing principles that must be accommodated when sentencing for an offence of this nature and level of seriousness.  In our view they are the principles of retribution, deterrence and denunciation.

34.  The first principle, retribution, simply means the punishment of the offender.  In the criminal law context this is not an emotive, vengeful punishment but:

“an objective, reasoned and measured determination of the appropriate punishment which properly reflects the moral culpability of the offender.” (Per Lamer CJC in R v M [1996] 105 C C C (3d) 327 at 368.)

It will be this aspect of the sentence that will address the victims and their relatives and friends’ expectation of justice.

35.  However the dominant sentencing principle for this offence is general deterrence but the severe sentences that are imposed in order to deter also have a secondary purpose of educating the public as to the potential dangers to others involved in driving a motor vehicle and the social responsibility that rests on the shoulders of all drivers to drive safely and with due regard to others. This was made clear by the Court of Appeal in Poon Wing Kay when, in referring to this role of the courts, it said at page 668A ‑ B:

“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.”

36.  This, of course, is where the principle of denunciation plays its role for the courts achieve the goal of educating the public not just through the principle of deterrence and the imposition of severe sentences but also by denouncing the breach of society’s values as reflected in the driving misconduct.  As Lamer CJC said in R v M at page 369b – c, [81]:

“The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct.[2] In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”

37.  In communicating society’s condemnation of a particular offender’s conduct, the sentencing principle of denunciation brings home to the offender, those affected by his conduct and the public generally that the punishment that is meted out to drivers who drive dangerously is because by their conduct they have fallen below the values that society has imposed on them.

38.  It is noteworthy that liability for the offence of dangerous driving is in fact drafted in terms of standards, namely driving that “falls far below what would be expected of a competent and careful driver”.  This standard required by the law exists, as this court made clear in Poon Wing Kay, “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.”[3]

39.  If the judge bears the principles of retribution, deterrence and denunciation in mind when considering the appropriate level of punishment for the offender then the sentence that he imposes should be a balanced, proportionate and just one.  In this way the courts will contribute to the important objective of “maintaining public confidence in the sentencing system.”[4]

Assessing the culpability of the applicant’s driving

40.  There is no doubt that the fact that this accident occurred on a pedestrian crossing controlled by traffic lights and whilst the lights were red for drivers, prima facie raises the level of the culpability of the applicant’s driving.  The very fact that the applicant slowed from 40 km/hour as he approached the crossing to 15 km/hour immediately prior to the point of impact allows of an inference that he must have been aware of the existence of the traffic lights and that they were red.  It seems to us that in the circumstances the only reasonable inference is that he must also have been aware of the stopped mini-bus and of the fact that it was blocking his vision of part of the pedestrian crossing ‑ in fact the part closest to the pavement from which pedestrians were likely to be crossing.  We note that in the Amended Summary of Facts the applicant admitted that a passenger on the mini-bus heard sounds of a horn coming from behind just before the accident.  If this was the applicant, and in the circumstances it is reasonable to infer that it was, then this would suggest that the applicant had time to sound his horn before the collision and confirms that he was aware of what was happening at the time.

41.  It is not surprising that in these circumstances the mitigation of momentary inattention being the cause of the accident was not accepted.  The applicant’s own conduct contradicted such an assertion.  That being so, it is hardly surprising that the judge guided himself by the statements of this court in the Lam Siu Tong case.  He was right to do so.  However after making the point in Lam Siu Tong that the fact that an accident occurred at a pedestrian crossing as a result of a driver driving dangerously is to be regarded as a serious aggravating factor, this Court went on to say:

“The degree of seriousness will of course depend on the precise circumstances. For example, a conscious disregard for traffic lights will likely put the case into the most serious category.”

42.  The applicant seizes upon the first sentence of this quotation and submits that the judge has not had regard to the precise circumstances and has therefore failed to properly assess the seriousness of the applicant’s dangerous driving.  Not every accident at a pedestrian crossing will necessarily be due, it is argued, to the driver exhibiting an attitude of conscious disregard of the crossing or the safety of its possible users.

43.  All the judge said in respect of the culpability of the applicant’s driving was:

“The cause of the accident is the defendant’s driving through a red light (albeit at a relatively low speed) at a pedestrian crossing, which is a serious aggravating feature according to the Court of Appeal.”

44.  Though accurate as a statement of the cause of the accident the judge does not then go on to analyse the seriousness of the applicant’s dangerous driving.  In this respect we have considerable sympathy for him.  The District Judge was faced with a very unusual set of facts as to how this accident occurred and the explanation from the applicant shed no light on it for him. The applicant’s explanation was so obviously exculpatory as to be of no actual help to the judge and all he could do in respect of it was to put it to one side and try and make what he could of the sparse facts before him.

45.  Those sparse facts revealed that the applicant was travelling uphill towards the traffic lights and pedestrian crossing and as he did so he allowed his speed to gradually reduce from 40 km/hour to 15 km/hour.  However speed is notoriously difficult to judge and no-one can be expected to precisely assess a car’s speed.  What is significant here is not the actual speed, whatever it may have been, but that it was so slow that the applicant was able to bring his vehicle instantly to a stop.  This we believe is the only reasonable inference that can be drawn from the fact that his vehicle did not actually knock the victim over.  The applicant’s vehicle must have bumped the victim with sufficient force to cause a fracture to her knee yet must have been travelling so slowly as to then be able to come to an instant stop.  It may be that the applicant was simply allowing his vehicle to glide slowly up to the pedestrian crossing, expecting that by the time he reached it the lights would be green in his favour allowing him to then accelerate away from the crossing.  But this was not put to the District Judge and so we can only speculate on the applicant’s intentions at the time.

46.  What we can be sure of is that, for whatever reason, the applicant, knowing the lights were red and knowing that his vision of the pedestrian crossing was incomplete, did not bring his vehicle to a stop.  This reveals a wilful refusal to stop at the crossing and a deliberate risk‑taking in allowing his vehicle to edge forward onto the crossing.  Such conduct, we have no doubt, exhibits a conscious disregard for the traffic lights and for those pedestrians who might be using the crossing and brings the quality of the applicant’s dangerous driving into the serious category.  But as Lam Siu Tong makes clear there is a range of seriousness to dangerous driving and we are satisfied that in the very unusual circumstances of this case the applicant’s driving misconduct was serious but it was in the middle to the lower end of the range of seriousness.

47.  In terms of the Grounds of Appeal there is nothing in the 1^st, 2^nd, 5^th and 6^th particulars of the Ground of Appeal.  As to the 3^rd and 4^th particulars that the judge in characterising the applicant’s driving as exhibiting a conscious disregard for the traffic lights the judge had no or insufficient regard to the precise circumstances of the case, they are really a complaint that the District Judge did not analyse in detail the culpability of the applicant’s driving.  But it is implicit from his comments in his Reasons for Sentence that he did not regard the driving as being at the higher end of the serious range as he accepted that the victim’s injuries were not of the most serious kind and that the force of the impact did not cause her to fall.  It is also reflected in the starting point which was only 15 months imprisonment.  In other circumstances the conduct of deliberately driving through a red traffic light would attract a much higher starting point.[5]

48.  The maximum penalty for this offence is 7 years imprisonment but that is reserved for far more culpable driving than is present here.  Given the seriousness of this applicant’s dangerous driving and given the need to both deter and denounce such driving a sentence of imprisonment was clearly inevitable for this applicant.  The only issue is the length of that sentence. Relevant to this issue are, of course, the harm caused by the applicant’s driving, his previous driving record and his remorse.  But above all, as we have emphasized, it is the culpability of the applicant’s driving that will be the main determinant of the severity of the sentence.

Conclusion

49.  Here, as we have said, the applicant’s culpability lies in his wilful refusal to stop at a red light, made worse because the red light controls not just a traffic intersection but also a pedestrian crossing, and a deliberate risk‑taking in allowing his motor vehicle to continue travelling forward onto the pedestrian crossing when he could not see if any pedestrian was using the crossing.  For this level of culpability the District Judge was right to adopt a starting point for sentence of 15 months imprisonment.

50.  We are not persuaded that there is any merit in the applicant’s ground of appeal and are satisfied that for the level of this applicant’s culpability the sentence was not manifestly excessive.  The application for leave to appeal sentence is therefore dismissed.