HKSAR v. LAM YING YU

CACC 320/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 320 OF 2012

(ON APPEAL FROM DCCC NO. 291 OF 2012)

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JUDGMENT

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

Introduction

1.  On 7 August 2012 the applicant was convicted in the District Court by District Judge S. D’Almada Remedios (“the judge”) of one count of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (“the Ordinance”).  On the same day she was sentenced to 3 years’ imprisonment and disqualified from holding or obtaining a driving licence for a period of 5 years and ordered, under section 72A of the Ordinance, to complete a driving improvement course.

2.  The applicant applied for leave to appeal her conviction and sentence. On 25 February 2014 we dismissed her application for leave to appeal against conviction and on 1 April 2014 we handed down our judgment in relation to the application for leave to appeal against sentence, allowing the appeal, setting aside the sentence of the judge and in substitution therefore, sentencing the applicant to 18 months’ imprisonment.  We did not disturb either the disqualification order made by the judge or the order made under section 72A of the Ordinance.

3.  The applicant now applies under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, for a certificate that the points of law of great and general importance that are said to be involved in the judgment that we handed down on 1 April 2014.

4.  We directed that the application be determined on the basis of written submissions filed with the Court and without an oral hearing.

The Application

5.  The facts of this case are set out in our judgment and we do not intend to repeat them here.  But in order to understand the issue to which the questions in the application are directed, it is necessary to have a very brief understanding of the circumstances of this accident.

6.  The accident occurred when the applicant failed to stop at a stop sign at the entrance to an intersection.  Driving onto the intersection she collided with a taxi travelling through the intersection.  The impact of the applicant’s car with the taxi caused the taxi to collide with a number of roadside workers, causing serious injuries to one of them which resulted in his death.  It was the evidence of the taxi driver that as he drove his car approaching the intersection, he noticed the applicant’s vehicle on his left and became conscious that it did not appear that the driver of it would stop.  Fearing that unless he took some kind of evasive action an accident was inevitable, he accelerated his motor vehicle in order to try and drive through the intersection before the applicant’s vehicle collided with him.

7.  The evasive action taken by the taxi driver was the subject of an argument on appeal that there was a break in the causation between the applicant’s dangerous driving and the death of the roadside worker.  It was said that the legal consequence of the intervening act by the taxi driver in accelerating his vehicle, was to break the causal link between the dangerous driving of the applicant and the death of the roadside worker.

8.  In support of this argument, the applicant’s counsel on appeal referred us to the English Court of Appeal’s judgment in Girdler v R [2009] EWCA Crim 2666 where the court, in dealing with a situation where the death was due to a second collision, introduced the concept of foreseeability into the direction to the jury.

9.  This is the background to the questions for which certification is sought, which are as follows:

“1. What is the applicable test for the element of causation in the offence of dangerous driving causing death under section 36(1) of the Ordinance?

2. Having regard to:-

(1) The established principles laid down by the English Court of Appeal that:

(a) the dangerous driving must have played a part, not simply in creating the occasion for the fatal accident, but in bringing about the death: R v Skelton [1995] Crim LR 635;

(b) no particular degree of contribution is required beyond something more than de minimis or a “slight or trifling link”: R v Hennigan [1971] 3 All ER 133 (followed in R v Chiu Tat Shing Dennis [1985] 2 HKC 487) and R v Kimsey [1996] Crim LR 35;

(2) There may be causes where there is more than a trifling link between the dangerous driving and a death but the death is too remote from the culpable driving to have been the cause of it: R v Girdler [2010] RTR 28 and R v L [2011] RTR 19;

(3) The fact that a person may be convicted of the offence of causing death by dangerous driving under section 36(1) of the Road Traffic Ordinance, Cap 374 without having intended or necessarily foreseen the consequences of his or her driving: R v Girdler [2010] RTR 28 at [36];

(4) The constitutional guarantee for the freedom of the person and the right not to subjected to arbitrary arrest, detention or imprisonment under Article 28 of the Basic Law, as well as the principle against doubtful penalization in the imposition of criminal liability;

whether a test based on “reasonable foreseeability” (as formulated in R v Girdler) should be applied to the element of causation under sections 36(1) and (9) of the RTO in Hong Kong, namely whether it could have been reasonably foreseen that a fatal collision might have occurred in the circumstances in which it did occur?

3. Whether the application of the “reasonable foreseeability” test should he restricted, and if so, what are the situation in which the “reasonable foreseeability” test should apply?

4. Whether the “reasonable foreseeability” test is applicable to circumstances such as the present case where the immediate cause of death was the act of another person?”

Discussion

10.  For the purpose of dealing with the break in causation ground of appeal, we found it unnecessary in our judgment to decide whether the English Court of Appeal’s test in Girdler is one which should be applied in Hong Kong. We said the situation that arose in the applicant’s case is not the same kind of situation for which the English Court of Appeal formulated the Girdler test.  We concluded that, on the facts of the present case, the death of the deceased was not caused by a new, intervening act.  We were of the view that here, the applicant’s driving caused the taxi driver to be placed in harms way and that in order for him to escape that potential harm, he took evasive action.  In those circumstances we said that the applicant’s dangerous driving was a cause of the death of the deceased and something more than a de minimus cause.

11.  In respect of the first question for which certification is sought, we are of the view that it is not a point of law of great and general importance in this case.  In dismissing the application for leave to appeal we did not seek to apply any new legal principle but merely applied the settled law on this subject.  Our decision was based upon the application of well-established legal principles to the facts of the case before us.

12.  Nor do we think that the second and subsequent questions for which certification is sought arise from our judgment.  We decided that on the facts of this case there was no new intervening act which had the affect of breaking the causal link between the dangerous driving and the death.  That being so, it was not necessary for us to consider the need to apply a variation of the causation test as was done by the English Court of Appeal.  The Girdler test was formulated to deal with the specific situation where the immediate cause of death was due to an obvious and distinct intervening act.  That is not, as we found, the factual position in this case.

13.  The third question for which certification is sought assumes that the reasonable foreseeability test should have been applied to the facts of the case before us.  As we have said, we concluded that, factually, this was not a new intervening act situation where the causal link between the applicant’s dangerous driving and the death of the deceased was broken.

14.  The fourth question addresses the same issue.  It also assumes that simply because it was the taxi rather than the applicant’s car which struck the deceased this must necessarily be a new intervening act situation giving rise to a break in causation issue.  On this purely factual issue we found to the contrary.  Because the question is, by its nature, a fact sensitive one, it cannot be said to be a question of great and general importance.

Conclusion

15.  For these reasons we dismiss the applicant’s application for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance.