HKSAR v. WONG CHUN WAI

[English Translation - 英譯本]

CACC 358/2017

[2018] HKCA 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 358 OF 2017

(ON APPEAL FROM DCCC NO. 54 OF 2016)

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REASONS FOR JUDGMENT

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

The relevant proceedings

1.   The appellant was twice tried in the District Court because of one traffic accident.   

2.  In the first trial, the appellant was found not guilty of the charge of “causing death by dangerous driving”; nor was he found guilty of any alternative charges. He was fined $400 for each of the two charges with respect to (using) a vehicle without the required equipment to which he had pleaded guilty. It was 7 July 2016 when the above happened.

3.  The prosecution applied to state a case to appeal against that acquittal.

4.  The defence opposed the application as it was not made before the expiry of the time limit. Nevertheless, the prosecution was allowed to appeal out of time.  Further, on 16 February 2017, the Court of Appeal allowed the prosecution’s appeal and ordered the case be remitted to the District Court for retrial before another judge on the charge of “dangerous driving”.

5.  The Court of Appeal ordered a retrial on the charge of “dangerous driving” simpliciter on the basis that the prosecution accepted the remark made by the trial judge at the first trial that “the accident was unavoidable”.  The prosecution accepted that this finding “was not against common sense”.

6.  On 22 September 2017, Judge Sham, the trial judge of the retrial, convicted the appellant of the charge of “dangerous driving”. On 31 October the same year, the appellant was sentenced by Judge Sham in respect of the said charge to immediate imprisonment for a term of 11 months, and was ordered to be disqualified from holding a driving licence for 1 year and to attend a driving improvement course at his own cost as well.

7.  The appellant felt aggrieved by the conviction.  He was, first, granted bail and, later, leave of the single judge to appeal against sentence.  His application for leave to appeal against conviction was, however, dismissed by the single judge.

8.  On 28 November 2018, at the conclusion of the appeal hearing, we allowed the appeal and made the orders set out in paragraph 36 below. These are our reasons.

The facts

9.  The accident in question occurred at about 9 p.m. on 22 June 2015 on a downhill stretch of Kowloon-bound Shek Pai Street in Kwai Chung. There was a left bend on that stretch of road.  The road surface before the left bend was painted with the road marking “SLOW”. Not far after the left bend was a pedestrian crossing controlled by traffic signals. The speed limit on the whole stretch of road was 50 kilometres per hour.

10.  There was no independent eyewitness in the present case. The primary evidence relied upon by the prosecution came from the appellant’s record of interview made under caution, in which the appellant stated that: at the material time, he was driving a public light bus with no passengers on board along the stretch of road in question; when the public light bus reached the pedestrian crossing after the left bend, an old man who was on the pavement on his left suddenly turned right and stepped onto the carriageway; the old man was knocked down by the public light bus when he was crossing the road in front of the public light bus from its left to its right. The appellant further stated that he was travelling at a speed of around 60 to 70 kilometres per hour at that time. It is an undisputed fact that the old man who was knocked down died from serious injuries the next day.

11.  The appellant did not dispute the voluntariness and accuracy of the record of interview save for the part concerning the vehicle’s speed.  After the alternative procedure, the appellant did not give evidence on the general issue either.  His ground of defence was that the prosecution did not have sufficient evidence to allege that he had exceeded the speed limit which led to dangerous driving. The foregoing was the appellant’s position at the retrial. 

12.  In the result, Judge Sham admitted into evidence the whole of the cautioned record of interview. Having regard to the testimony of the prosecution expert witness and taken the defence case at its highest, he found the speed of the public light bus to be 60 kilometres per hour at the material time.  In his Reasons for Verdict, he said:

“41.   The defendant was familiar with the stretch of road where the accident occurred (he had been driving a public light bus going past that stretch of road continuously over the 9 years prior to the offence).  His vehicle would first go downslope. Basic safety knowledge dictates that one should drive slowly when going downslope. Whilst he was well aware that he would be approaching a sharp bend, he did not slow down. Instead, he drove at a speed in excess of the speed limit on that stretch of road. Even though the road surface at the bend was marked with the warning word “SLOW”, suggesting that there might be danger ahead, he simply ignored it. He was also well aware that after driving past the bend, he would soon reach a pedestrian crossing and should have expected that there would be pedestrians crossing the road there or even be pedestrians crossing the road without following the rules. In the circumstances, driving in such a way while approaching a pedestrian crossing would pose a risk to the pedestrians using it. And the facts showed that he did not have sufficient time to react appropriately as he was driving too fast.  An old man who was crossing the road ended up being knocked down and killed by his vehicle. Such a way of driving is, beyond doubt, dangerous. It is dangerous within the meaning of the law.”

Mitigation

13.  The appellant was 33 years of age at the time of sentencing. He had no previous criminal convictions.  He obtained his driving licence in 2003 and subsequently became a public light bus driver. Although he was once fined $1,500 for “careless driving” in 2015, his traffic conviction record was otherwise not serious.  The appellant is married with two small daughters. His wife suffered from depression as a result of learning of the prosecution brought against him.

14.  Mr Tse, counsel who had appeared for the defence since the retrial stage, said in mitigation that the appellant was acquitted of the charge of “causing death by dangerous driving” at the first trial and therefore had reasonable grounds to believe that the matter had come to a close. However, the prosecution was allowed to appeal out of time, leading up to the appellant’s retrial and sentence.  This should constitute a mitigating factor. Mr Tse took sentence review cases as an example and submitted that even if the Court of Appeal decided to increase the sentence, it would nevertheless have regard to the fact that the defendant once received a lenient sentence and thus not increase the new sentence to the requisite level.

15.  Mr Tse further submitted that the old man who was knocked down crossed the road suddenly, rendering the accident unavoidable.  The death of the old man was not caused by the appellant.  He pressed the point that this was the finding at the first trial[1] .  Apart from it being accepted by the prosecution in the appeal by way of case stated[2] , this was also the reason why the Court of Appeal ordered the charge be changed to “dangerous driving” at the retrial.  

Sentencing at the retrial

16.   Judge Sham reiterated in paragraph 21 of his Reasons for Sentence that as a professional driver, the appellant:

“should fully appreciate that there would invariably be citizens crossing the road without complying with traffic signals. When such a situation arises, driving slowly, as opposed to driving fast, can always allow a driver more time to react so as to avoid an accident and reduce the likelihood of casualties. He did not slow his vehicle down. Instead, he drove at a speed in excess of the speed limit on that stretch of road, resulting in this traffic accident.”

17.    Judge Sham, in paragraph 22 of his Reasons for Sentence, considered that, when sentencing, regard must be had to the factor that the old man died from injuries:

“Though the defendant was convicted on the basis of the offence of dangerous driving only, the fact remains that a precious life had taken away as a result of the accident; in sentencing, if the present case is to be regarded as a case of dangerous driving in which there are no fatalities and dealt with accordingly, it will simply be self-deceiving and not in the interest of public justice.”

18.  Judge Sham did not agree that the appellant’s conviction after retrial was a mitigating factor. In any event, the appellant was originally charged with “causing death by dangerous driving” but was subsequently retried on the lesser charge of “dangerous driving”, that was sufficient for offsetting any discount on sentence he should probably be given: paragraphs 26 to 27 of the Reasons for Sentence.

19.  Eventually, Judge Sham adopted a starting point of 12 months’ imprisonment, reduced it to 11 months’ imprisonment for the appellant’s clear record and made the other orders as stated above.

Grounds of Appeal

20.  Mr Tse, counsel representing the appellant at this stage as well, advanced three grounds of appeal. To a significant extent, Mr Tse was repeating the grounds of mitigation rejected by Judge Sham.

Ground (1)

21.  Ground (1) of appeal complained that the trial judge erred in taking into consideration the fact that a death had occurred when sentencing in the present case.

22.  Mr Tse reiterated that since the accident in the present case was indeed unavoidable, the court should not have taken the fatality into consideration when sentencing.  There was, he submitted, no evidence of the appellant’s driving manner causing the death of the old man in the case and no causal relationship between the two, and thus the court should have only considered how bad the appellant’s driving was, rather than attributed the death of the old man to the appellant.  Judge Sham erred in principle in factoring in the fact that a death had occurred when sentencing.

23.  Mr Tse went on to say that “causing death by dangerous driving” and “dangerous driving” are two separate offences which are different in nature and carry sentences of different degrees of severities.  The legislative intent in respect of the offence of “causing death by dangerous driving” is to enable the court to mete out more severe penalties in cases where dangerous driving has actually caused death. However, as far as “dangerous driving” or “careless driving” is concerned, the degree of culpability should only depend on the driving manner rather than the consequences it brought about.

24.  Mr Tse specifically cited R v Krawec [1985] RTR 1 as stating that it would be wrong in principle if the court wrongly attached or attached too much weight to the fact that a death had occurred when sentencing. 

Ground (2)

25.  Ground (2) of appeal complained that the trial judge erred in considering the appellant’s retrial and sentence was not a valid mitigating factor.

26.  Mr Tse reiterated that the appellant had originally secured a full acquittal but was sentenced to immediate imprisonment after retrial, which, coupled with the complicated legal procedures, had greatly distressed him. Therefore, comparisons should have been drawn to the usual practice adopted in sentence review cases and a reduction in sentence, to some extent, should have been given. However, Judge Sham refused to take this factor into consideration.

27.  Mr Tse further submitted that depending on the relevant facts and whether there are aggravating features, sentences in “causing death by dangerous driving” cases may not necessarily be heavier than those for charges of “dangerous driving”. However, Judge Sham erred in weighing up the maximum penalties for the two offences and thereby coming to the conclusion that the appellant had received lenient treatment.  Mr Tse went on to say that the reason the Court of Appeal ordered a retrial on the charge of “dangerous driving” in the present case was that no finding of fact as to whether the appellant drove dangerously had been made at the first trial. That order was not intended to treat the appellant leniently.

Ground (3)

28.  Ground (3) of appeal complained that in all the relevant circumstances, the sentence in the present case was manifestly excessive.

29.  Mr Tse considered that given the factors enumerated below, even if the conduct of the appellant constituted dangerous driving, its  circumstances would be at the extremely low end of the scale when compared with similar cases, and therefore, the sentence imposed by Judge Sham was manifestly excessive:

(1)  the appellant had a clear record;

(2)  though the appellant exceeded the speed limit, the extent to which it was exceeded was not serious;

(3)  it did not involve drink driving or drug driving on the part of the appellant;

(4)  the appellant did immediately brake, manoeuvre the steering wheel and toot the horn before the collision; and

(5)  the appellant did not cross (double white) lines, overtake or jump a red light.

30.  Mr Tse cited R v Mak Kau [1978] HKLRD 39 as saying that “dangerous driving” can be divided into two separate categories: one, where the accident is caused by foolishness or an error of judgement and, two, where the accident is caused by the deliberate taking of a risk, and that only in the latter category should a custodial sentence be imposed.  The appellant only erred in momentarily driving at a speed slightly in excess of the speed limit. There was no evidence to show that he deliberately took a risk or risks, and thus an immediate custodial sentence was indeed manifestly excessive.

Discussion

31.  Although R v Krawec [1985] RTR 1 involves “careless driving”, the principle illustrated therein is equally applicable to “dangerous driving”.  The material parts of the judgment given by Lord Lane CJ in that case are as follows (3F–J):  

“ In our judgment, the unforseen and unexpected results of the carelessness are not in themselves relevant to penalty. The primary considerations are the quality of the driving, the extent to which the appellant on the particular occasion fell below the standard of the reasonably competent driver, in other words, the degree of carelessness and culpability. The unforeseen consequences may sometimes be relevant to those considerations.

In the present case, the fact that the appellant failed to see the pedestrian until it was too late and therefore collided with him was plainly a relevant factor. We do not think that the fact that the unfortunate man died was relevant on this charge. Since it seems that the fact of the death influenced the judge to some extent we consider some reduction in the amount of the fine is appropriate.”

32.  Just as Lord Lane pointed out, as far as offences of “careless driving” and “dangerous driving” are concerned, the primary consideration in sentencing is the quality of driving of the defendant; the unforeseen and unexpected results are not in themselves relevant to penalty. However, he added that under certain circumstances, the quality of driving may be relevant to the unforeseen and unexpected results. As for R v Krawec, in Lord Lane’s opinion, the fact that the defendant collided with a man due to inattention was a factor that should have been taken into consideration when sentencing, but the fact that the man who was knocked down eventually died from serious injuries should not have affected the sentencing.

33.  In our view, whether a fatality is beyond expectations and/or related to the quality of driving depends on the facts of the individual case. In the present case, the appellant was found to have driven in excess of the speed limit, ignored the marking SLOW on the road surface and knowingly disregarded the risk of pedestrians stepping onto the carriageway at any time. That was indeed not a momentary error but, to a certain extent, continuing and irresponsible act of driving and manner of driving.  In the circumstances, in our view, it was within reasonable expectations that someone would have died in the result, and was, in other words, related to the quality and manner of driving. Therefore, though the charge the appellant faced was “dangerous driving” rather than “causing death by dangerous driving”, it was appropriate to take into account the fact that a death had occurred when sentencing, and this was also consistent with Lord Lane’s observations in R v Krawec. Judge Sham’s formulation on this issue was over-generalised, but his conclusion was nevertheless correct.

34.  What is really of concern is that Judge Sham did not reduce the sentence on the basis that the appellant had originally secured a full acquittal but had to face a retrial and immediate imprisonment. In our view, it was reasonable for Mr Tse to draw comparisons with sentence review cases and press the point that the court should exercise its discretion to reduce the term of imprisonment that should be imposed. We do not understand why this practice, which can usually be seen in sentence review cases, as well as the underlying reasons for this practice, were not equally applicable in the present case. It was without basis and incorrect for Judge Sham to conclude that the appellant had received lenient treatment as the statutory maximum for the offence of “dangerous driving” was relatively lower.   We are of the view that the appellant could have been given a discount of two months’ imprisonment in sentence for the procedural twists and turns he had gone through.

35.  Mr Tse enumerated a number of factors under the last ground of appeal and submitted that immediate imprisonment should not have been imposed in the present case. However, as we pointed out above, the conduct of the appellant was indeed not a momentary error, and what is more, the accident resulted in the death of a pedestrian.  Therefore, the situation was different from what Mr Tse had asserted.

Judgment

36.  Ground (2) of the appellant’s grounds of appeal has been made out.  It follows that his appeal must be allowed.  We order that the sentence of 11 months’ imprisonment be set aside and substituted with one of 9 months’ imprisonment. The other penalties will stand.