SECRETARY FOR JUSTICE v. HUNG LING KWOK

CAAR 7/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 7 OF 2009

(ON APPEAL FROM DCCC NO. 1130 OF 2008)

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BETWEEN

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JUDGMENT

Hon Cheung JA (giving the judgment of the Court):

1.  The respondent pleaded guilty before Deputy District Judge A. Kwok to one charge of Causing Death by Dangerous Driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374, Laws of Hong Kong (“the Ordinance”).  Deputy Judge Kwok took 5 years’ imprisonment as the starting point and, after reducing it by ¹/₃ on account of the guilty plea, sentenced the respondent to imprisonment for 3 years and 4 months.  In addition, Deputy Judge Kwok disqualified the respondent from driving all classes of vehicles for 3 years and, pursuant to section 70, ordered that he cannot be qualified for driving until he has undergone and passed a re-rest.  The Secretary for Justice applies to this Court for the review of the sentence on the ground that the disqualification of the respondent for 3 years is manifestly inadequate.

Agreed facts

2.  According to the agreed facts, on 1 May 2008, the respondent drove a tourist coach with 61 passengers on board from Fung Wong San Tsuen, Tsz Wan Shan to Sai Kung to attend a religious gathering.  The coach moved along Clear Water Bay Road and Hiram’s Highway to its destination.  Starting from the outside of Pik Uk Correctional Institution on Clear Water Bay Road and all the way to the spot where the accident occurred, it was a downward sloping road and there was a sharp bend at the roundabout on Hiram’s Highway near Cheng Chek Chee Secondary School.  When the coach reached the roundabout, it suddenly tilted to the left and skidded; hit a lamp-post and a concrete pillar on the roadside; and then rammed into a noise barrier.  Finally, the coach turned over with its left side resting on the ground.  As a result, 19 passengers on board the coach were killed and 40 odd passengers were injured.  Following the accident, the front of the coach was seriously damaged, the whole of the roof of the coach was detached from the body, all the windows on both sides of the coach and the windscreen at the front were smashed to smithereens.  The seats in the interior were knocked over, lying about everywhere and their backs came off.  The interior of the coach was besmeared with bloodstains.  The noise barrier and the concrete pillar were covered with blood from the dead and the injured.  The whole lamp-post was bent because of the impact.  At the time of the accident, the weather was fine and the road surface dry.

3.  The respondent admitted that when he was driving along the road from Fung Wong San Tsuen to Pik Uk Correctional Institution on Clear Water Bay Road, his speed was already 10 km more than the speed limit prescribed for that stretch of the road.  He also admitted that when he was approaching a set of traffic lights in the urban area, he did not stop when the light signal turned from amber to red, but drove on instead.  Many passengers on board the coach said that the coach was moving in a high speed throughout.  On the way, the respondent frequently cut lanes, both right and left.  When the coach moved downhill along Clear Water Bay Road and turned into Hiram’s Highway, the low air pressure warning device on the coach sounded the warning signal, and the low air pressure indicator light on the dashboard was on, but the respondent took no notice of them and went on driving.  At this moment, from the outside of the coach came the odour of burnt brake shoes and white smoke came out from the tyre/tyres of the rear wheel/wheels; but the respondent was still driving downhill in high speed.  The coach began to sway from side to side.  Many passengers told the respondent to stop the coach but he ignored them.  At last, the coach lost control and turned over.

4.  The respondent suffered only minor injuries in the accident.  He managed to crawl out of the coach on his own.  He told the police officers who arrived at the scene that when he reached Hiram’s Highway, he noticed that the foot brake did not respond at all and that when the coach dashed towards the roundabout, he had to swerve to change lane in order to avoid other vehicles, but finally the coach still went out of control and ran into the noise barrier.  The respondent had no pervious criminal record.  As for traffic offences, he had received some fixed penalty tickets and had 4 traffic convictions, 2 of which were careless driving, one in 1998 and the other in 2002.  The respondent was issued with a driving licence in 1994 but in 1998 he incurred 15 points due to traffic contraventions and was disqualified from holding or obtaining a driving licence.

Cause of the accident

5.  According to the report prepared by the forensic scientist, the cause of the accident was that when the respondent was driving the coach downhill to the roundabout, the speed was excessive and he did not apply significant or even any braking.  When the respondent was driving downhill from Clear Water Bay Road to Hiram’s Highway, he did not use the appropriate gear and failed to control the speed by properly using the throttle and the exhaust brake; rather, he just relied on the foot brake to reduce the speed.  Owing to overuse of the footbrake, the pneumatic braking system became ineffective.  The agreed facts show that the speed of the coach before the accident was about 67 km/h, while the speed limit for the stretch of road in question was 50 km/h.

Deputy Judge Kwok’s findings

6.  Deputy Judge Kwok described this case as one of the worst cases of Causing Death By Dangerous Driving.  He did not accept the submission made by the counsel for the respondent that it was just a momentary error of judgment on the part of the respondent.  Deputy Judge Kwok considered that at the material time the respondent was driving the coach recklessly, in that he was driving the coach, which was loaded to its maximum capacity, in the same manner as if he were driving a private car.  The respondent gave no reasonable explanation at all as to why he drove in such a manner.  Deputy Judge Kwok found that the respondent persistently drove the coach in a reckless manner over a long period of time in complete disregard of the safety of the passengers.

7.  Deputy Judge Kwok remarked that the respondent could offer no explanation as to why he failed to notice that the warning light in the coach was on. He could have stopped the coach in time if he had noticed that. Accordingly, he lost the opportunity to stop the coach at a passing bay on the road. But the respondent continued to drive downhill and thus the momentum kept on building up, with the result that the coach could not be controlled and turned over when it reached the roundabout.  Deputy Judge Kwok also commented that the respondent did not explain why he did not activate the exhaust brake system.

8.  Deputy Judge Kwok said that the respondent had 10 years’ experience in driving tourist coaches, and that before the accident he had been driving a similar kind of vehicles for as long as 4 years.  The respondent was a professional driver but at the material time he controlled the speed of the coach by just using the foot brake, resulting in the failure of the air pressure system and the braking system.  He did not make use of the exhaust brake system either.  Such a driving manner was extremely irresponsible.

Applicable law

9.  The accident happened on 1 May 2008.  The maximum sentence laid down in the Ordinance then was 5 years’ imprisonment, and this maximum sentence of 5 years’ imprisonment was used by Deputy Judge Kwok as the starting point.  The amended Ordinance came into effect on 4 July 2008, in which the maximum sentence was increased by 5 years to 10 years.  Neither the version of the Ordinance applicable to this case nor the amended version says anything about the maximum period of disqualification from driving.  It is only stipulated that a defendant is to be disqualified for not less than 2 years in the case of a first conviction, and not less than 3 years in the case of a second or subsequent conviction, unless the Court does not disqualify the defendant.  According to the Ordinance, the period of disqualification must run concurrently with the term of imprisonment.  We are aware that subsequent to this case the Legislative Council has discussed whether it should legislate that the period of disqualification should run consecutively to the term of imprisonment, but so far no law has been enacted in respect of this issue.

Sentencing principles

10.  In Secretary for Justice v. Poon Wing Kay and Liu Chun Pong [2007] 1 HKLRD 660, the Court of Appeal of Hong Kong, after considering the decision of the English Court of Appeal in R v. Cooksley [2003] All ER 40 about sentencing in a traffic case involving death, laid down certain principles governing sentencing in a case of Causing Death By Dangerous Driving.  We shall not repeat these principles here.

11.  Furthermore, in Secretary for Justice v. Fong Chai Man [2008] 3 HKLRD 493 the Court of Appeal agreed with the opinions expressed in Cooksley about the length of driving disqualification.  The main purpose of disqualification is “forward looking and preventive rather than backward looking and punitive”.  It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads.  The risk represented by the offender is reflected in the level of culpability which attaches to his driving, so that matters relevant to fixing the length of the driving disqualification are more or less the same as those factors relevant to determining the term of imprisonment.

12.  Cooksley gave the following guidelines concerning the length of driving disqualification:

(1)          Disqualification of 2 years is required where the defendant had a good driving record and where the offence resulted from a momentary error of judgement;

(2)          Disqualification between 3 and 5 years is required where the facts of the case and the defendant’s record show that the defendant tends to disregard the rules of the road, or to drive carelessly or inappropriately;

(3)          Disqualification between 5 and 10 years is required where the facts of the case and the defendant’s record show that he represents a real and continuing danger to other road users; and

(4)          Under highly exceptional circumstances, disqualification for life may be appropriate where the danger represented by the defendant is an extreme and indefinite one (see paragraph 42).

13.  At the same time, Cooksley drew the Court’s attention to the possibility that to disqualify the offender from driving for a period longer than the term of imprisonment can be counter-productive, particularly if the defendant is obsessed with cars or if he earns his living by driving, because he may succumb to temptation and drive while disqualified (see paragraph 43).

Our opinions

14.  First of all, we must point out that although matters relating to culpability which need to be considered when determining the term of imprisonment are more or less the same as those which need to be considered when fixing the length of the driving disqualification, according to sentencing principles, a sentence passed by the Court must have actual effect.  Since the period of disqualification and the term of imprisonment are to run concurrently, if the period of disqualification is of the same length as or shorter than the term of imprisonment, then the period of disqualification may be devoid of any real significance. This is because the defendant can resume driving soon after he served his sentence of imprisonment.  This is against the basic principle of sentencing. This principle is illustrated in the following decisions of the Court of Appeal about the terms of imprisonment and the periods of disqualification in traffic cases involving deaths:

(1)          AG v. Chan Chun Yuen CAAR 2/1991: 3 pedestrians were hit; 1 of them died.

Term of imprisonment – 18 months; period of disqualification – 5 years

(2)          HKSAR v. Park Myung Hwa [2004] 3 HKC 564: 2 persons were killed and 1 injured.

Term of imprisonment – 3 months; period of disqualification – 3 years

(3)          Pong Wing Kay and Liu Chun Pong: 2 persons were killed and 17 injured.

Term of imprisonment – 5 years; period of disqualification – 12 years

(4)          HKSAR v. Au Yeung Kwok-Kin CACC 21/2008: 1 person was killed

Term of imprisonment – 3 years; period of disqualification – 5 years

(5)          Fong Chai Man: 2 persons were killed.

Term of imprisonment – 8 months; period of disqualification – 4 years

(6)          HKSAR v. Cheng Ho Chow CACC 111/2009: 1 person in the vehicle was killed.

Term of imprisonment – 1 year; period of disqualification – 4 years

15.  In addition, in two cases of Dangerous Driving, namely Secretary for Justice v. Ko Wai Kit [2001] 3 HKLRD 751 and HKSAR v. Tang Chen Ming [2003] 1 HKC 515, the periods of disqualification were also longer than the terms of imprisonment.

16.  We agree with the opinion expressed in Cooksley that when considering disqualification, the Court should not anticipate that the defendant will be granted remission of sentence due to his good conduct in prison and therefore can have an early release.  The reason is that it is not certain that the defendant will have an early release because of his good conduct.  We believe that the relation between the term of imprisonment and the period of disqualification must be a relevant issue.  In this case, the respondent’s term of imprisonment is 3 years and 4 months, while his period of disqualification is 3 years.  Most of his period of disqualification merges into his term of imprisonment. Therefore it is true that the disqualification period fixed by Deputy Judge Kwok does not have any actual effect.  We are of the view that the period fixed by Deputy Judge Kwok is too short and does not comply with the sentencing principles.

17.  We agree with Deputy Judge Kwok’s finding that the respondent drove the coach in an extremely irresponsible manner and was in complete disregard of the safety of the passengers.  Judging from the respondent’s driving manner, we agree that this case is one of the worst of its kind.  Even though the respondent cannot drive again unless he has passed the re-test and he said in Court that he would not be a professional driver again, we think that the respondent’s reckless driving manner shows that he surely represents a continuing danger to other road users, including the passengers in the vehicle which he is driving.

18.  Serious casualties were caused by this traffic accident.  We deeply sympathize with the victims and their families and relatives.  The fact that a large number of people were killed or injured certainly is a relevant factor in the consideration of the appropriate sentence, and will be reflected in the sentence.  However, as pointed out in Cooksley, a sentence should not be multiplied according to the number of persons who were killed or injured.  In the final analysis, the defendant’s culpability should be the basis of the sentencing exercise and on this basis an appropriate sentence is to be determined.  This is particularly so in cases where there is no evidence which shows that the defendant intended to injure any road users or passengers.  Having considered this case in its entirety and based on the “forward looking and preventive” principle, we hold that the appropriate period of disqualification should be 6 years.  We grant the application for review made by the Secretary for Justice and vary the period from 3 years to 6 years accordingly.