SECRETARY FOR JUSTICE v. WONG WAI HUNG

CAAR 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 7 OF 2010

(ON APPEAL FROM DCCC NO. 1310 of 2009)

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Hon Tang Ag CJHC:

1.  On 21 May 2009, when the deceased, an 87-year-old man, was crossing a zebra crossing with his domestic helper, they were knocked down by a 4-wheel drive land cruiser driven by the respondent. As a result, the deceased died and the domestic helper sustained minor injuries.

2.  The Respondent was prepared to plead guilty to careless driving but that was not accepted.  After trial, the Respondent was convicted by Judge Browne of dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374.  He was sentenced to imprisonment for 12 months and disqualified from driving for 3 years.

3.  This is the Secretary for Justice’s application for review of sentence, leave having been granted on 15 June 2010.

4.  The following paragraphs from the Reasons for Verdict set the scene clearly:

“6. At the material time, Po Shing Street was situated within the City One domestic estate in Shatin. The street is a dual-carriageway with a speed limit of 20 kilometres per hour. Traffic signs had been erected along the street to remind drivers of vehicles using the street to drive their vehicles at a slow speed and to take precautions. The reason for these precautions was quite obvious, as this is an area which is used by pedestrians. There is a school; there is a kindergarten; there are housing estates, a shopping centre and a market.

7. A 20 kilometre per hour speed limit traffic sign was erected at the nearside of the pavement near the entrance to the southwest-bound approach to the street. A sign was erected to indicate the presence of a speed calming road hump. The Chinese characters of ‘Drive Slow’ were printed on either lane of the street. Traffic signs indicating pedestrians on the road ahead were erected at the nearside pavement adjacent to the speed calming hump.

8. At the zebra crossing itself, there was a central divider. This was a central divider between the two carriageways. There was a flashing yellow beacon erected at the nearside and offside of the zebra crossing. The crossing was, as usual, marked with black-and-white stripes and zigzag lines on either side.

9. According to the Road Users' Code of the Transport Department, the road markings serve as a warning to drivers that there may be pedestrians crossing or waiting to cross the street. The Code further stipulated that drivers upon approaching the zebra crossing should be aware of pedestrians waiting to cross, such as elderly, the disabled and people with children. Drivers must give way to pedestrians who have stepped onto the crossing. The drivers must not stop on the zebra crossing. The drivers might stop in the area marked by the zigzag lines when giving way to pedestrians walking across the zebra crossing.

10.    At the time of the accident, the weather was fine and the street was dry. The line of vision along the southwest-bound of the street - the zebra crossings - was good and clear with no obstructions.”

5.  Several eye-witnesses gave evidence.  The first was PW1, who was 60 and has been a professional driver for over 10 years.  At about 12.30pm he crossed in the northeast-bound direction of the crossing. When he arrived at the central reservation, he noticed the deceased and his domestic helper on the crossing.  It appeared to him that the woman was supporting the deceased, both of them were walking very slowly.  When he first saw them, he said that they had arrived at the second stripe of the crossing.    The domestic helper was on the right-hand side of the deceased.

6.  He said before entering the crossing, he looked to his left and he saw the Respondent’s vehicle which was in the left-hand lane, the slow lane, of the southbound carriageway, which was the slow lane, and was not travelling very fast.  He estimated that the vehicle was about 18 to 20 metres from the crossing itself. 

7.  He said as usual he walked at a fast pace and by the time he reached the couple on the crossing, they were only at the third stripe, so they had only managed to cover one stripe in the time.  At that stage he looked to his left and he noticed that the Respondent’s vehicle was at a position just before the zigzag lines.

8.  He continued to cross and stepped onto the pavement.  After he had taken about two steps, he heard the impact of the station wagon coming into contact with the pedestrians on the crossing.  He looked back and saw the deceased and the domestic helper were lying on the road. He called the police.  He said there was no other vehicle approaching the crossing and there were no parked vehicles.  He estimated that the speed of the Respondent’s vehicle could have been 25-30 kilometres per hour.

9.  The second witness was a 13-year-old schoolboy who attended a nearby secondary school.  He saw the accident from the market-end of the area.  As he was approaching the shopping centre, he noticed the deceased and his domestic helper on the crossing.  He also noticed PW1 overtaking the couple on the crossing.  His evidence, as summarised in the reasons was that:

“… when the deceased and the maid were at the fourth stripe, he said suddenly a vehicle appeared and hit the left side of the old man. He agreed in cross-examination that the deceased was not knocked away from the vehicle, he simply fell to the ground.”

10.  The Respondent’s defence was that the accident was the result of a momentary lapse in his concentration.  His defence as summarized by the learned judge is that:

“24. He said that he was in the left lane - the slow lane - as he approached the crossing, and he said at the time that he passed the speed calming road hump he was travelling at about 20 to 25 kilometres per hour. He said as he approached the crossing, he saw two persons on the crossing and he also noticed PW1 overtake them. He said when he saw the deceased and the domestic helper they were at the middle of the crossing. He said at that stage he was at the point of the road where the ‘SLOW SLOW’ signs are indicated, which is about 18 to 20 metres before the crossing. He said he continued to go forward and judged that the couple would be able to cross the crossing and he would cross slowly.

25.    He said that when he got to the location just in front of the crossing a sudden thought came to him, and he said at that time they were not able to cross in time and he swerved to avoid them. He said he was not able to swerve to avoid them and he hit them and he alighted immediately. He said when he found that they were not able to cross the crossing in time, he hit them. He said that the left front part of his vehicle hit them as he swerved to his right to avoid them. He said that he did not stop before reaching the crossing because at that time suddenly he thought of the illness of his mother and he came to think of the illness of his mother-in-law, and he said he suddenly realised they could not cross it in time.”

11.  The Respondent is 59 and has three grown-up children.  Two are already married.  He is the sole supporter of his family, earning about $8,000 to $9,000 a month.  He has been employed as a chauffeur for 1 year and 3 months. For 20 years before that he had been driving vehicles between the Mainland and Hong Kong.  He has had a driving licence since he was 19. 

12.  His mother-in-law passed away in January 2010.  His mother is seriously ill.  There was an application on behalf of the Respondent under section 81B(3) and section 83V of the Criminal Procedure Ordinance, Cap. 221, for leave to adduce fresh evidence which has come into existence since the sentence and is said to be relevant to the determination of the application for review. The evidence is a medical report on the Respondent’s mother from Prince of Wales Hospital dated 10 November 2010.  According to the medical report, she is suffering from Stage IV lung cancer with a life expectancy of around 3 months only.  The evidence was produced without objection.

13.  In addition, the learned judge had letters of mitigation from the Respondent’s employer, who was willing to re-employ him.  He is said to be reliable, a safe driver and good with children.  There is a letter from his children as well as one from his younger brother, the principal of Ling Liang Church E Wun Secondary School.   He has also a letter from Mr Hau Chi Keung, the Vice Chairman of North District Council, who said:

“Over the years, Mr. Wong Wai Hung served as a Council Member of the Sha Ding Village and Fu Tei Au Village in Sheung [Shui]. He has actively participated in the preparation of traditional cultural activities and community programs in the North District. His enthusiasm in community work has been praised by local residents.”

14.  The learned judge said:

“14. The defendant's criminal record revealed a minor conviction in 1984. His driving record revealed a careless driving conviction in 2007, speeding in January 2009, and three convictions for using a mobile phone whilst a vehicle was in motion in January 2009, March 2009 and 18 May 2009, three days before this offence.”

15.  The learned judge was told that the Respondent was extremely remorseful, that he and his family had been under severe pressure since the accident, and that he had expressed through his counsel his sincere condolences to the members of the deceased’s family. 

16.  After noting the maximum imprisonment term was, with effect from 4 July 2008, increased from 5 years to 10 years, the learned judge sentenced the Respondent to imprisonment for 1 year and disqualified him from driving for 3 years.  He explained why in the following passages:

“25. As the Court of Appeal said in Secretary for Justice v Poon Wing Kai [2007] 1 HKLRD 660, ‘Since sometimes there might be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect. The standards required by the law for motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant's car and pedestrians, etc are safe. While it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in quite such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous.’

26. In deciding the appropriate sentence, the court should take care not to be overwhelmed by the outcome. It is the culpability of the defendant which is the dominant factor. Whilst the impact on the deceased's family is a relevant sentencing consideration, it must be remembered that the defendant in the present case did not intend to cause death or serious injury.

27. I am told that the defendant is very remorseful now. I have no reason not to accept this. Indeed, all drivers who have a conscience will feel extreme regret and remorse where their driving causes a tragic result like this.

28. Learned counsel for the defence urged upon me that this was not the most serious case of this type. He is justified to say so. The manner of driving, though dangerous, was at the lower end of spectrum of seriousness. There is no evidence of aggressive driving on the part of the defendant. It was not a case of excessive speeding. There is no evidence of any prolonged driving of the defendant with no regard for the safety of others. The duration of the dangerous driving was short. The defendant was not under the influence of drugs or alcohol. There is no indication that the vehicle was not properly maintained. My attention was also drawn to the photographs which show that the only damage to the defendant's vehicle was the broken wing mirror which demonstrates the low impact of the collision.

29. A sentence of imprisonment should only be imposed if necessary and no longer than necessary. I appreciate that when a person starts to drive his vehicle, he would not contemplate that the driving will result in an imprisonment term. Drivers must bear firmly in mind their duty to other road users.

30. The defendant's judgment in this case was seriously flawed. The circumstances demanded that the defendant should take the greatest of care.

……

32.    Having considered the whole circumstances of the case, bearing in mind submission by learned defence counsel and having had regard to cases such as SJ v Poon Wing Kay [2007] 1 HKLRD, SJ v Fong Chai Man [2008] 3 HKLRD 493, R v Cooksley [2003] 3 All ER 40, HKSAR v Tam Kwok Choi HCMA 700/2008, I am of the view that an immediate custodial sentence is called for in a case like this.”

17.  Earlier, in the Reasons for Sentence he also recorded:

“11. The defendant said that he was at the Slow Slow signs which are 18-20 meters before the crossing when he first saw the couple on the crossing. He said he saw PW1 overtake them. He said he thought he (sic) they would have crossed before he got to the crossing. He said he was driving at 20-25 kilometers per hour when he was in the zig zag lines. …”

Also,

“12. … He had a clear view of the crossing. The road markings, words of caution, signs, location and the speed calming hump are all designed to make it as plain as possible that the utmost care and attention is required for motorists traveling along this street in the direction the defendant was heading. In my view the driving of the defendant fell far below that expected of a careful and prudent motorist and it would be obvious to a careful and prudent motorist that driving in that way would be dangerous.”

18.  With respect, the learned judge has failed to take sufficient account of the fact that the deceased and the domestic helper were crossing a zebra crossing when the Respondent’s car hit them.  I have set out in full at para. 4 supra the learned judge’s description of the various warnings which should alert any driver to the need to drive with extra caution. 

19.  In Secretary for Justice v. Lam Siu Tong [2009] 5 HKLRD 601, this Court (Ma CJHC, Hartmann JA and Saw J) made clear that it would be a serious aggravating feature that dangerous driving causing death occurred at pedestrian crossings, and that a conscious disregard for traffic lights would be likely to put the case into the most serious category. This court also said one must not overlook the fact that an innocent life has been taken away, and that good character and remorse may count for very little.

20.  Lam Siu Tong was concerned with two accidents on pedestrian crossings.  The case concerning the driver of a double‑decker bus (Wong) is particularly relevant.  Wong had approached a pedestrian crossing at a junction in the middle lane.  The traffic lights were red, and a bus and a dump truck had already stopped in the inner and outer lanes respectively.  He did not see the red lights, nor slow down.  The pedestrian lights were in green, Wong hit a man on the crossing, killing him, and injured another pedestrian who blacked out and lost 3 front teeth.  He was sentenced to 20 months’ imprisonment and disqualified for effectively 40 months.  His sentence was increased on review on the basis of a starting point of 3 years.  At the time of the offence, the maximum sentence was 5 years.

21.  In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving.  There is of course a public dimension and the courts must be mindful of “the importance of maintaining public confidence in the sentencing system” per Lord Bingham CJ in R v Howells [1999] 1 All ER 50 at 54.  Public confidence in the sentencing system is essential to the maintenance of the rule of law.

22.  In England, the leading case on sentencing for this kind of offences is R v. Cooksley and Ors [2003] 3 All ER 40, where the English Court of Appeal provided sentencing guidelines.  Cooksley also explained that causing death is invariably a very serious crime, and that even where there are no aggravating circumstances, a short custodial sentence of perhaps 12 to 18 months should be the starting point, progressing through intermediate culpability (2 to 3 years), to higher culpability (4 to 5 years) and most serious culpability (up to maximum of 10 years).  Culpability is the determining factor.

23.  In Secretary of Justice v Poon Wing Kay [2007] 1 HKLRD 660, this Court (Ma CJHC, Stuart-Moore VP and Stock JA) expressed general agreement with the Cooksley approach.  Poon also emphasized that it is important for the 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. 

24.  I think, none more so than in cases involving accidents on zebra crossings.  In such cases it is necessary to drive home the message most forcibly.  Were it otherwise, and if zebra crossings can be ignored with little consequence, how could one persuade pedestrians to forsake the convenience of crossing wherever they like, and make an effort to cross at a zebra crossing?  Furthermore, the Road Users’ Code has made clear and it is common sense, that at zebra crossings drivers should beware pedestrians trying to cross or waiting to cross, such as the elderly, the infirm, and people with children.

25.  That is why we must drive home the message to drivers that the court takes a very serious view of accidents on pedestrian crossings.  With great respect to the learned judge, the litany of absence of particular aggravating factors in para. 28 of his reasons is beside the point.  It is obvious that the Respondent had disregarded the presence of pedestrians, who had the right of way, on the zebra crossing.  It is no excuse to say that he thought he had room to pass.  The fact is he had not.  That was said to be an error of judgment.  But it was more than that.  It was no less than a conscious decision on his part not to give precedence to the pedestrians who were there.

26.  Mr Plowman submitted that according to the domestic helper, the wing mirror hit her left upper arm and in falling, she pulled the deceased down.  I have already referred to the evidence of the school boy who said that the deceased was hit by the car.  I do not think the discrepancy, if it is such, matters.  Mr Plowman submitted that the impact was light, but it was forceful enough to result in the death of an old man.  I agree that this is not the worst case of its type.  For a worst case, the maximum sentence could be 10 years.  The fact that this is not the worst case of its type does not mean that it is not seriously culpable.  Lam Siu Tong made the point that dangerous driving causing death which occurred at a pedestrian crossing would be a serious aggravating feature.

27.  Indeed, in Lam Siu Tong, this Court said that a conscious disregard for traffic lights would likely put the case into the most serious category.  I believe a conscious disregard for pedestrians is equally, if not, more reprehensible.  There, the court said at para. 24:

“(c) The clear inference is that Wong was simply reckless : despite all the warning signs, he nevertheless continued to travel into the pedestrian crossing without slowing down, oblivious to the obvious dangers that this caused. The result was a death and injuries caused to another person.

(d)     It was almost as if the Respondent did not care whether or not his bus hit anyone at the pedestrian crossing.  He certainly decided to take a huge risk in the way he drove.”

28.  The same could probably be said of the Respondent.  He ignored all the warning signs.  He saw the deceased and his domestic helper making their way slowly across the zebra crossing.  He also saw PW1.  His defence that his attention was momentarily distracted is irrelevant.  He should have slowed down or stopped long before he reached the crossing.  He had ample time to do so.  Simple humanity should impel a driver to stop for the aged, the young and the infirm whether they have the right of way or not.  Here, the deceased had the right of way.  That was ignored.  There is thus a high degree of culpability.

29.  The learned judge, and Mr Plowman, SC for the Respondent, relied on the fact that the Respondent was travelling at 20-25 kilometers per hour and that the speed limit was 20 kilometers per hour.  The fact that the general speed limit is 20 kilometers per hour does not mean that approaching a pedestrian crossing, where an old man is trying to cross with the assistance of a helper, at such a speed, is not excessive.  With respect, I am afraid the learned judge has ignored the single most important fact in the case, namely, that the deceased was crossing slowly and in plain view, on a zebra crossing, when the Respondent hit him.  To be fair to the learned judge, it appeared that his attention had not been drawn to Lam Siu Tong. 

30.  The prosecution put the case within the intermediate culpability range under Cooksley.  I believe it probably falls within the higher culpability range.  The sentence passed was grossly inadequate.  I would not consider a starting point for sentence of 4 years to be manifestly excessive.  However, in this case, with some reluctance, I have decided on a sentence of 2½ years.  I bear in mind that this is a review and the Respondent would be released later this month on his present sentence.  More importantly, 2½ years already represents a 150% increase on his existing sentence.  However, the period of disqualification should be increased to 5 years.  Earlier I mentioned the Respondent’s mother’s health.  Naturally, one is sympathetic, but such mitigation can carry little weight.  In any event, having regard to the steep discount already given, no further discount could be justified. 

31.  I should mention that the learned judge also relied on Secretary for Justice v. Fong Tsai-man [2008] 3 HKLRD 494, where a truck driver, when reversing up a narrow lane, struck and killed a man and an eleven-month-old baby.  The magistrate adopted a starting point of 12 months (when the maximum was 5 years), and this Court (Tang VP, Cheung and Yuen JJA) dismissed an application for review of sentence.  That case bears little resemblance to the present application.  The case was not concerned with a pedestrian crossing, much less a zebra crossing.  As the court pointed out, the driver was found guilty essentially because he failed to ask one of his passengers to assist him in keeping a lookout when he backed up the lane. Indeed, in dismissing the application for a review Cheung JA explained at para. 13 of the judgment of the court, that it was not as bad a case as when a driver had failed to stop at a red light.  So Fong Chai Man provides no support for the learned judge’s sentence.

32.  Mr Plowman also relied on Secretary for Justice v. Lau Sin Ting [2010] 5 HKLRD 318 (Yeung JA, Beeson and McMahon JJ). In that case, the Respondent to an application for review of sentence was a girl of 19.  She was the driver of a car carrying five passengers instead of the four which the car was equipped to carry.  Two of the friends were killed, and one became paraplegic.  The accident occurred whilst the car was travelling between 87 km/h and 107 km/h in an area where the speed limit was 50 km/h.  She had pleaded guilty and was sentenced to 10 months’ imprisonment from a starting point of 15 months.  This Court thought that a proper starting point would have been 2½ years.

33.  As McMahon J said when giving the judgment of the court:

“36. … each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice.”

34.  In that case, the Respondent had suffered very significant and permanent physical injuries.  Lau Sin Ting turned on its own facts.  Certainly, it does not provide any justification for a sentence of 12 months after trial in this case.

Hon Beeson J:

35.  I agree with the judgment of Tang Ag CJHC.

Hon Macrae J:

36.  I agree with the judgment of Tang Ag CJHC.

Hon Tang Ag CJHC:

37.  For the above reasons we have allowed the Secretary’s application, set aside the original sentence and sentenced the Respondent to imprisonment for 2½ years and disqualified him from driving for 5 years.