SECRETARY FOR JUSTICE v. YAM CHUN KEUNG

[English Translation – 英譯本]
CAAR 2/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 2 OF 2008

(ON APPEAL FROM DCCC NO. 1099 OF 2007)

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J U D G M E N T

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

The six charges

1. The defendant Yam Chun Keung pleaded guilty before Deputy Judge Lam in the District Court to the following six charges:

Charges 1 and 3 were “permitting a motor vehicle to be driven by a person who is not a holder of a driving licence”, contrary to section 42(3) and (4) of the Road Traffic Ordinance (Cap. 374 of the Laws of Hong Kong);

Charges 2 and 4 were “causing another person to use a motor vehicle without having in force a policy of insurance against third party risks”, contrary to section 4(1) and (2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272 of the Laws of Hong Kong);

Charge 5 was “causing death by dangerous driving”, contrary to section 36(1) of the Road Traffic Ordinance (Cap. 374 of the Laws of Hong Kong);

Charge 6 was “doing an act tending and intended to pervert the course of justice”, contrary to common law and punishable under section 101I(1) of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong).

The sentence

2. In respect of each of Charges 1, 2, 3, 4 and 6, Judge Lam, adopting a starting point of 3 months’ imprisonment and reducing it by one-third on account of the guilty plea, imposed a sentence of 2 months’ imprisonment. As for Charge 5, Judge Lam adopted 15 months’ imprisonment as the starting point and, reducing it by one-third on account of the guilty plea, imposed a sentence of 10 months’ imprisonment. The sentences were ordered to run concurrently, making an overall sentence of 10 months’ imprisonment. Furthermore, in respect of Charges 2, 4 and 5, Judge Lam ordered that the defendant be disqualified from driving for a period of 2 years, to run concurrently with the above sentence.

3. The Secretary for Justice applies for a review of the sentence of 10 months’ imprisonment but does not take issue with the 2-year disqualification order.

Facts

4. On 6 May 2007, a seven-year-old child riding a bicycle (hereinafter “the child”) was run over and killed by a 7-seater private car on the road. At the time of the accident, the car was driven by a boy aged 13 (hereinafter “boy A”) and the defendant, seated in the passenger seat beside the driver’s seat, was then teaching and helping the boy to drive the car. In the car there was another boy aged 15 (hereinafter “boy B”).

5. The defendant, boy A and boy B were all boy scouts and the defendant was the group leader of the two boys. On the day in question, the defendant had arranged to meet the two boys to participate in an activity together. The defendant drove the car to pick up the boys and then drove them to Choi Ming Court in Tseung Kwan O. He parked the car in the open area in front of a carpark at Choi Ming Court. Then he alighted and took certain articles to the management office. Upon returning to the car, the defendant proposed to teach the boys to drive. The car, which was for private use, was not equipped with another brake pedal apart from the one that it had. Boy A and boy B both accepted the defendant’s proposal, and boy B got into the driver’s seat first whereas the defendant took the passenger seat next to the driver’s. The defendant explained to the boys how to drive and then asked boy B to start the car. The boy dared not try but, after being repeatedly encouraged by the defendant, agreed to start the car and drove the car from the open area in front of the carpark to the road leading to the entrance of the housing estate. Upon arrival at a roundabout in the housing estate, boy B made a U-turn and drove back to the open area outside the carpark. The car had occasionally gone beyond the traffic lane when boy B was behind the wheel.

6. Thereafter, the defendant asked boy A to take the driver’s seat and start the car. The defendant instructed him how to drive. Boy A drove the car from the open area to the said roundabout. When he was making a U-turn to leave the roundabout, the child was riding a bicycle past the road. At that juncture the child on the bicycle was very close to the car driven by boy A. The defendant immediately asked boy A to apply the brake. Boy A did so, but the car continued to move forward. The defendant then turned the steering wheel to try to avoid hitting the child, but the car still knocked the child down. The child and his bicycle were pushed forward for about 4 feet by the car and were trapped under it. Boy A applied the brake again and finally brought the car to a halt. The defendant lifted the handbrake lever and got off the car with the boys. At that time the child and the bicycle were still trapped under the car. Boy B suggested that the defendant should call the police but, instead of doing so immediately, the defendant got in the car and reversed it in an attempt to free the child trapped under it. Being concerned that the wheels would run over the child, boy A and boy B asked the defendant to stop the car and again asked him to call the police. The defendant then stopped and got off the car, checked on the child, and then called the police.

7. At this time a man who witnessed the accident came up and asked the defendant to call the police. Before calling the police, the defendant told boy A and boy B to leave the scene. They each followed his instruction and returned home. The police arrived at the scene and asked the defendant who the driver was. The defendant said that he was the driver, but this was negated by the said eye-witness. The police cautioned the defendant at once. The child trapped under the car was rescued and sent to hospital but was certified dead before arrival. The cause of death was severe damage to the head and cerebral injuries.

Dangerous driving causing death

8. The present case involved six offences, the most serious one being causing death by dangerous driving. The charge alleged that the defendant and boy A had driven dangerously. This Court canvassed the sentencing principles in respect of that offence in two recent cases, namely Secretary for Justice v. Poon Wing Kay [2007] 1 HKLRD 660 and Secretary for Justice v. Fong Chai Man [2008] 3 HKLRD 493. We only need to reiterate that the offence is a very serious one which usually warrants a deterrent sentence of immediate imprisonment. The length of the sentence will depend on the gravity of the offence. In assessing the gravity of the offence, the defendant’s culpability is the primary consideration, and it is an aggravating factor that an offender has selfishly disregarded the safety of other road users.

9. In passing sentence, Judge Lam said that the defendant committed this serious offence out of momentary stupidity and recklessness. The Judge cited the following statement of Lord Taylor in the English case of R. v. Shepherd and R. v. Wernet [1994] 2 All ER 242:

… human life cannot be restored, nor can its loss be measured by the length of a prison sentence.

Judgment

10. In our judgment, the starting point of 15 months’ imprisonment adopted by Judge Lam for this offence failed to reflect the gravity of the present case. The defendant was of 37 years of age at the material time. He was the leader of the two boys but, instead of teaching them to obey the law, he encouraged them to drive a rather sizeable 7-seater motor vehicle unlawfully. Worse still, he not only allowed the two boys to drive in the open area, but also instructed them to drive the car onto the road. It could not have been more obvious that traffic accidents could easily be caused by allowing a child who had no driving experience whatsoever to drive on the road. Being an elder to the two boys, the defendant, by encouraging them to drive unlawfully, committed a very selfish and reckless act which showed no regard for the safety of the boys and other road users. This was a rather serious offence that could be distinguished from cases in which death was caused by errors of judgment or negligence on the part of the driver.     

11. That the defendant had shown remorse and frankly admitted his guilt was of course a mitigating factor, but this had been reflected in the discount in sentence which followed his guilty plea. Furthermore, notwithstanding that the defendant had for many years been devoting himself wholeheartedly to community causes such as the promotion of boy scouts and swimming activities, and that a number of letters written by members of the public and others had been submitted to Judge Lam as mitigation, the sentence must in our judgment be enhanced in light of the gravity of the present offence. The applicant had broken the law when he was aged 19. He had two previous convictions although, judging from the rather lenient punishment imposed on him, those two offences were apparently not of a serious nature. Moreover, since then the defendant had not committed any offence again until the present offence. We therefore agree with the Judge’s approach of treating the defendant as a person with a clear record for the purpose of determining the starting point.

12. Having considered the overall circumstances of the case and the relevant mitigating factors, we consider 2½ years’ imprisonment to be an appropriate starting point for Charge 5. This term is to be reduced by one-third to one year and 8 months on account of the defendant’s guilty plea.

Other charges

13. As for Charge 6, namely perverting the course of justice, the defendant falsely represented to the police after the accident that he was the driver. It is beyond doubt that the courts have to ensure the integrity of the administration of justice. In the present case, the defendant clearly intended to protect the two boys involved, but what he did was in any event unlawful. In light of the exceptional features of the case and the possibility that the defendant might have made such a decision in a moment of desperation, we will not vary the sentence of two-month imprisonment imposed by the Judge.

14. The remaining four offences in respect of driving without third party insurance and driving without a licence were the legal consequences of the defendant allowing the two boys, who did not have driving licences, to drive. We uphold the two-month concurrent sentences imposed by the Judge for the four offences.

Overall sentence

15. Mr. Leung, Senior Public Prosecutor for the Secretary for Justice, has submitted that the appropriate overall sentence should be slightly less than two years’ imprisonment. On the facts of the case as a whole, we consider an overall sentence of one year and 10 months’ imprisonment appropriate. We order that the sentence of one year and 8 months’ imprisonment imposed for Charge 5 is to run concurrently with the two months’ imprisonment imposed for Charges 1 to 4 but consecutively to the two months’ imprisonment imposed for Charge 6, making a total term of one year and 10 months.

Conclusion

16. We allow the application of the Secretary for Justice and vary the total sentence on the six charges to one of imprisonment for one year and 10 months.