HKSAR v. CHUNG HUNG PAN

CAC C 242/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 242 OF 2012

(ON APPEAL FROM DCCC NO. 84 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Barma JA (giving the Reasons for Judgment of the Court):

1.  On 11 May 2012, the Applicant pleaded guilty before Deputy Judge A Kwok (as he then was) in the District Court to one charge of causing death by dangerous driving, contrary to section 36(1)(a) of the Road Traffic Ordinance, Cap 374. The charge alleged that the Applicant, on 17 September 2011, outside Cheung Sha Wan Wholesale Marine Fish Market (“the Market”), caused the death of Madam Leung Suk-yi by driving a light goods vehicle dangerously. He admitted the prosecution summary of facts and was convicted. Having obtained a background report, on 4 June 2012, the Judge sentenced the Applicant to 22 months’ imprisonment, and ordered that he be disqualified from driving for 3 years (commencing on the date of his release from prison) and to attend and complete a driving improvement course at his own expense within the last 3 months of the period of disqualification.

2.  By a notice dated 18 June 2012, the Applicant applied for leave to appeal against his sentence, both in relation to the length of the term of imprisonment, and in relation to the length of the period of disqualification. At the end of the hearing, we dismissed his application.  These are our reasons for doing so.

3.  The circumstances of the offence can be summarised as follows:-

(1)   The Applicant drove his vehicle around the roundabout outside the Market intending to turn into the Market.  At the time, Madam Leung, a road cleaner, was sweeping around the edge of the central island of the roundabout.  She was wearing a reflective vest.  The Applicant’s vehicle hit Madam Leung when he had almost completed driving around the roundabout.

(2)   The Applicant stopped after the impact.  Whilst waiting for the ambulance, the Applicant rendered assistance to Madam Leung by holding her in his arms.  On arrival at the hospital, Madam Leung was found to have serious injuries from which she did not recover, dying 2 days later.

(3)   At the time of the accident, weather conditions and visibility were good, and the Applicant’s vehicle was in good working order.

(4)   The Applicant claimed that several vehicles were parked on the outer part of the roundabout, resulting in his having to drive close to the central island.  He said that he saw Madam Leung sweeping the road near the central island, had reduced his speed from about 40 km per hour to 20 km per hour, and had gone past her when she stepped back suddenly and hit the side of his vehicle.

(5)   Closed circuit television images showed this account to be untrue.  There were no vehicles parked around the outside of the roundabout, and it was not necessary for the Applicant to have driven close to the central island.  Another vehicle negotiated the roundabout shortly before the Applicant did so, driving a safe distance clear of Madam Leung.  By contrast, the Applicant’s vehicle was driven very close to the central island, towards Madam Leung.  It appeared that as the Applicant was driving past Madam Leung, his vehicle in fact moved further inwards, hitting her.  It was just over half a metre from the central island, whereas the road was some 12 metres wide at that point.

4.  The circumstances of the offence are such that it cannot be gainsaid that the Applicant was guilty of seriously dangerous driving.  He had (on his own admission) a clear view of Madam Leung while circumnavigating the roundabout, but notwithstanding this, maintained a course very close to the central island just besides which she was working, when there was no need to do so.  It would seem that he made no real effort to avoid her, when this could easily have been done, in order to save time going around the roundabout.  The Applicant accepted that he never sounded his horn to warn Madam Leung of his approach.

5.  At the hearing before the Judge, it was said in mitigation that the Applicant was the sole breadwinner for his family (a wife and a son aged 11, with a second child on the way), worked hard as a self-employed driver with virtually no rest days.  He had no significant previous driving convictions, and was very upset and remorseful about the accident, and had given up driving. It was submitted that the situation was one of an error of judgment rather than driving irresponsibly.

6.  Before sentencing, the Judge called for a background report on the Applicant and a victim impact report and requested the prosecution to provide details of recent sentences for causing death by dangerous driving.  These materials were duly provided to him.

7.  When passing sentence, the Judge rejected the suggestion that this was a case of momentary inattention or error of judgment, and took the view that it involved a selfish disregard for the safety of other road users, and involved an element of recklessness, although he accepted that it was not as serious as would have been the case had the accident taken place at a pedestrian crossing.  Having regard to the circumstances of the incident referred to above, his conclusion as to the nature of the dangerous driving cannot be faulted.  He concluded that the appropriate starting point would be 36 months’ imprisonment, reduced this by one-third for the guilty plea, and further reduced it by 2 months to give credit for the assistance rendered by the Applicant to Madam Leung after the accident, producing a sentence of 22 months’ imprisonment.

8.  As for disqualification, sections 36(1), (2) and (2A)(a) of the Road Traffic Ordinance require the imposition of a minimum period of disqualification of 2 years in the absence of special reasons to the contrary.  In this case, the Applicant’s driving licence was ordered to be surrendered as a condition of his bail.  It was then apparently sent to the Commissioner of Transport purportedly pursuant to section 71 of the same Ordinance (as appears from the receipt provided to the Applicant).  This happened some 8 months before he was sentenced.

9.  So far as the appeal against the length of the term of imprisonment is concerned, Mr Boyton (who appeared for the Applicant, and had represented him in the court below), acknowledged that the sentence passed could not be said to be manifestly excessive.  He suggested, however, that as the Judge had called for information as to other recent cases of causing death by dangerous driving, it was incumbent on him to have regard to the sentences passed, as to do otherwise would be unfair to the Applicant, who would have been led to think that this would be done.  Mr Boyton pointed out that among the recent sentences were two cases involving pedestrians being knocked down at a pedestrian crossing, both of which had resulted in sentences of 20 months’ imprisonment being passed on a plea of guilty, equating to a starting point of 30 months’ imprisonment.  He suggested therefore, that in this case, a starting point lower than 30 months should have been adopted, as the Judge below had indicated that the case was less serious than one involving an accident at a pedestrian crossing.

10.  We are unable to agree with this approach.  Mr Boyton was correct to acknowledge that the sentence could not be described as manifestly excessive, having regard to the degree of recklessness displayed by the Applicant here.  As Ms Lo, appearing for the Respondent, pointed out, the information as to recent sentences provided to the Judge below was limited in nature, containing little detail as to the circumstances of the incidents in the cases concerned.  It would not, therefore, be possible to compare those cases with the present one in any meaningful way.  The information would be thus of little real assistance to the Judge, who should not, therefore, be criticised for not relying on it.

11.  Nor can we agree with Mr Boyton’s suggestion that the Applicant was led to believe that regard would be had to such information.  All that could be expected would be that the Judge would take note of the extent and quality of the information provided in order to determine what use to make of it.  Given the very limited details provided, the fact that the Judge did not have regard to it is not, to our minds, in any way unfair to the Applicant.

12.  For these reasons, we consider that the sentence passed was an appropriate one in terms of the period of imprisonment ordered.

13.  As for the period of disqualification, Mr Boyton made two points:-

(1)   First, he suggested that credit should be given for the 8 months during which the Applicant could not drive while on bail, on the basis that there was in fact no jurisdiction under section 71 of the Road Traffic Ordinance to send the driving licence of an accused to the Commissioner for Transport prior to conviction and the imposition of a period of disqualification.  To have done so was thus ultra vires, and this should be recognised by offsetting this period against the period of disqualification which the Judge was otherwise minded to order.

(2)   Second, he submitted that in any event, fairness required that credit be given for the period of time prior to the trial during which the Applicant was prevented from driving when setting the period of disqualification.  He sought to derive support for this proposition from the provisions of section 26 of the Road Traffic Offenders Act 1988, applicable in the United Kingdom, under which offenders committed by magistrates to the Crown Court for sentencing may be made the subject of interim disqualification orders, for which credit must be given when a sentence involving a period of disqualification is eventually passed.  He suggested that this was a practice that should be followed in Hong Kong, and that there had been cases in which account had been taken of the time prior to trial when an accused was unable to drive as a result of having surrendered his driving licence to the court as a condition of bail.  In support of this submission, he referred us to Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, where the Court of Appeal noted at paragraph 7 of the judgment that the court below had taken the length of time for which the defendant had been unable to drive prior to sentencing, as a result of having surrendered his driving licence as a condition of bail.

14.  We are unable to agree with either of these submissions.

15.  As to the complaint that the sending of the Applicant’s driving licence to the Commissioner of Transport upon its being surrendered as part of his bail conditions is concerned, we agree with Mr Boyton that the magistrate granting the Applicant bail had no power to do so under section 71, which clearly applies only after conviction and the passing of a sentence involving a period of disqualification.  However, in our view, this error caused no prejudice to the Applicant, as he would not in any event have been able to drive during this period, having been required to surrender his licence as part of his bail conditions.  Although Mr Boyton submitted that there was no power to impose such a condition as a term of bail, we are satisfied that there is power under section 9D(2)(b) of the Criminal Procedure Ordinance, Cap 221, to impose such a condition, which is in fact commonly made a term of bail in cases such as this.  That subsection provides that an order admitting an accused person to bail under section 9D(1) may be subject to such conditions as appear to the court to be necessary to secure that the person admitted to bail will not commit an offence while on bail.  Requiring a person charged with causing death by dangerous driving to surrender his driving licence as a condition of bail seems to us to be clearly aimed at preventing the commission of a similar offence while the accused is on bail.  There can therefore be no complaint in this respect.

16.  As to the second argument, we derive no assistance from the reference to the United Kingdom legislation.  There is no similar legislation in Hong Kong. In any event, it deals with a quite different situation, where a person has already been convicted, and is awaiting a sentence which will almost certainly involve a period of disqualification from driving.  Further, we do not think that the suggestion that fairness demands that credit be given for the period for which the Applicant’s licence had been surrendered is well-founded.  This is because it seems to us that for the Applicant to, in effect, be prevented from driving for a period totalling 44 months cannot, in our view, be said to be excessive having regard to the circumstances of this case.

17.  We therefore consider that the sentence passed was also an appropriate one in terms of the period of disqualification ordered.

18.  For the foregoing reasons, the Applicant’s application for leave to appeal against sentence was dismissed.