HKSAR v. PANG KUN WAH

CACC 410/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 410 OF 2013

(On Appeal From High Court Criminal Case No. 460 of 2012)

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REASONS FOR JUDGMENT

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

1.  The applicant pleaded guilty before Deputy High Court Judge Stuart-Moore to two offences under the Road Traffic Ordinance (‘the Ordinance’) (Cap 374), namely, one charge of causing death by dangerous driving contrary to section 36(1) (‘Count 2’) and one charge of causing grievous bodily harm by dangerous driving contrary to section 36(A) (‘Count 3’). In respect of Count 2, the applicant was sentenced to five years of imprisonment which was based on a starting point of eight years’ imprisonment, reduced by one third because of the plea and further reduced by four months in recognition of the compensation paid by the applicant to the victim of the accident. The applicant was disqualified from driving any motor vehicle of any description for ten years. He was also ordered to complete a driving improvement course pursuant to section 72A of the Ordinance.

2.  In respect of Count 3, he was sentenced to 3 years and 10 months of imprisonment.  This was based on a starting point of six years’ imprisonment with the same reductions as in Count 2.  This sentence is to run concurrently with the sentence on Count 2.  He was also disqualified from driving any motor vehicle of any description for ten years.

3.  The applicant applied for leave to appeal against sentence.  We dismissed the application at the conclusion of the hearing.  We now give our reasons.

Facts of the case

4.  The two offences occurred at around noon on 26 November 2011 at a parking space outside a house (‘the house’) in Pollock’s Path on the Peak.  The events leading to the offences were recorded by a CCTV installed at the compound of the house.  The summary of facts of the case which was agreed to by the applicant is as follows :

1) The victim in Count 2 (‘the deceased’) was a 45-year-old renovation worker who was employed by a sub-contractor of the applicant to carry out renovation work to the steel doors of a water meter affixed on an exterior wall of the house (‘the wall’).

2) The victim of Count 3 (‘the injured person’) was a 24-year-old renovation worker who worked together with the deceased on the renovation work.

3) The applicant drove his car to the compound of the house and reversed it into a parking space in front of the house with a distance of 1.4 meters between the rear of the car and the wall.

4) At about 12:30 the deceased and the injured person went to the wall behind the car and continued their repair work on the steel doors of the water meter box.  Both men assumed squatting positions with their backs to the car as they worked and they were in this position when the applicant got into the car.

5) At about 12:36:54 the applicant drove the car forward away from the deceased and the injured person for about 1.8 meters reaching a maximum speed of about 6 km per hour.  Midway through this manoeuvre, the applicant engaged the car in reverse gear and accelerated in reverse to a speed of 12 km per hour before colliding with the deceased and the injured person and the wall at that speed.

6) The injured person had heard the sound of the car reversing and had wanted to cry out a warning but was unable to do so before the car struck him on his back causing him to feel pain and dizziness.

7) The car then rebounded from the wall forwards for a distance of 0.5 meters and then accelerated towards the wall again before rebounding a second time and then reversing and coming to a halt (‘the first impact’).

8) At 12:37:03 a female who was cleaning in the vicinity ran to the car and then went to the wall where both the deceased and the injured person remained.

9) The car remained stationary for 2.1 seconds before moving forward to reach a maximum speed of 3 km per hour to a point where the rear of the car was 3.1 meters away from the wall.  At this point the applicant engaged reverse gear and accelerated the car in reverse towards the wall reaching a maximum reverse speed of 12 km per hour before colliding with the deceased and the injured person again for a second time (‘the second impact’).

10) The injured person was unable to respond in time after being struck on the first occasion and was struck on his back by the car for a second time.  After the second impact he managed to remove himself from his position between the car and the wall.

11) The applicant immediately accelerated the car forward to a distance of 3.8 meters reaching a maximum speed of 8.9 km per hour within 2.3 seconds.  He then engaged the car in reverse gear and reversed the car towards the wall again reaching a maximum reverse speed of 12 km per hour before the car stopped at a distance of 0.32 meter from the wall.  It is likely that the car struck the deceased again and it was this which prevented the car from hitting the wall (‘the third impact’).

12) After the third impact the applicant moved the car forward for about 0.9 meters at a speed less than 2.2 km per hour and stopped.

13) The applicant then alighted from the car and walked to the rear of the car where the deceased laid.  He got back into the car and drove it forward before stopping it in a position where it remained until the police arrived at the scene.

14) A security guard who came immediately to the scene saw the applicant drag out the deceased and told him to call the police which he did.  He saw the applicant cry, kneel and apologise.

15) Shortly thereafter a police officer arrived at the scene and spoke to the applicant who told him that he had wanted to drive the car away but accidently put the car in reverse gear.  The car reversed and hit the two injured person.  He told the police officer that he knew that someone was working behind the car.  After hearing a noise he put the car into forward gear and drove forward.  He then went to the back and saw the two injured men lying on the ground.

16) Later on the applicant spoke to another police officer at the scene and told him that he had intended to drive his car forward to let the men do their work.  He said that when he started his car he stepped on the accelerator.  He reversed and hit the two workers.  He realised that he had put the car into the wrong gear so he immediately drove forward.

17) On 26 November 2011 the applicant was interviewed by the police.  He told the police that :

‘ I have nothing to say. I’m now very confused about the traffic accident. I’m very sorry for the deceased and the injured.’

18) The deceased was found dead when he was examined by a doctor at Queen Mary Hospital, his injuries included a 19 centimetre skull fracture and his death was the result of this and other multiple fractures.  The heart sac had been ruptured; the aorta showed a few tears and was completely torn at the aortic arch.  The breastbone was fractured and all the ribs between the second and eleventh were fractured.

19) The injured person was sent to the Intensive Care Unit and was hospitalised for nine days.  The injured person suffered from multiple injuries : there were fractures to six of his ribs, his left scapula (shoulder-blade), was also fractured and there were injuries to his kidneys, spleen and there was a bilateral pneumothorax.  The victims’ injuries were consistent with a crushing impact between the car and the wall.  

20) The back of the applicant’s car was left with clear impact damage and the bumper in particular was badly damaged.  So were the doors to the water meter where hair and blood from the victims were found.  The car was examined by a Motor Vehicle Examiner from the Transport Department on 28 November 2011.  The examination included an on-road test drive and the car was found to operate normally and it had no mechanical defects apart from an inoperative safety button on the gear selector lever.  The brakes of the car were in satisfactory working condition.

The applicant’s case

5.   The applicant’s case is that he was not aware that the deceased and the injured person were behind his car when he moved his car.  Further the accident was caused by two major coincidences which came together at precisely the same time.  The first was that the gear lever went from drive through neutral and straight into reverse without the applicant meaning to do that as he was unaware of the fault until that moment.  Secondly, he had put his foot on the accelerator pedal when he meant to brake the car.

The Judge’s view

6.   The Judge rejected the applicant’s contention that he was not aware of the presence of the victims when he moved his car.  In respect of the defect of the gear and the applicant’s contention he put his foot on the accelerator instead of the brake, the Judge held that :

‘ Many people hearing of this button which prevents a gear lever from going through neutral straight into reverse may be surprised because there are, according to Dr Cheng, many cars without such a safety device at all. Old cars often do not have such a device and some new cars do not either. He went on to say that he did not regard the fault on the defendant’s car presented an “imminent danger”, as he put it. Although, as I have said, he accepted that it could put the driver into an unexpected situation.

He did not regard the button on the gear lever as a vital safety measure but, very importantly, he added this: a person’s speed of reaction is normally about 1.2 seconds, but in this case, Dr Cheng said that the defendant had kept his foot on the accelerator, continuously depressed, for six seconds on the first reversing of the car, so that when the car bounced off the wall the very first time, it went forward half a metre and immediately went backwards again and bounced again because the defendant’s foot had stayed on the accelerator.

There was no normal reaction here to the unexpected situation.  Of course it is possible for a person to put his car into reverse by mistake.  No one would suggest otherwise.  It is equally possible for a person to put his foot on the accelerator pedal when mistaking it for the brake pedal.  It is possible that a driver might do both things, having discovered, for the very first time, that the gears were shifting straight into reverse through neutral without any safety lock in between.  But having hit the wrong pedal, most people react in just over a second and put it right.

In this case, the defendant did bring his car to a complete halt after the first hit, that is after the car had bounced twice off the wall, and yet, what he had done once, he went on to do twice more.  In the context of two men working right behind his car to his certain knowledge, this was driving of a highly dangerous kind.’  (emphasis added)

Grounds of appeal

7.   The applicant relied on the following grounds of appeal :

1) The Judge erred in concluding that this is the ‘most serious’ case of its kind and adopting eight years and six years as the starting points for the two charges respectively.

2) The Judge in sentencing the applicant erred in treating the fact that the acts of the applicant defy reasonable explanation as an aggravating factor.

3) The Judge erred in implicitly treating the acts of the applicant as deliberate and sentencing on that basis.

4) The Judge wrongly drew the following adverse inferences against the applicant even though they are not the only reasonable inferences that can be drawn :

(i) That the applicant had deliberately given an untrue account to the police at the scene;

(ii) That the applicant knew there were people behind his car when he started it;

(iii) That during the ‘third hit’, the car was stopped by the body of the deceased;

(iv) That there is ‘absolutely no reason for any panic’ even though the car was put in reverse; and

(v) That it is totally irrational for the applicant to step on the accelerator for six seconds, given that the normal reaction time is 1.2 seconds.

5) The Judge wrongly took into account matters which are neither in Summary of Facts nor in evidence given in Newton Hearing.

6) The Judge in sentencing the applicant wrongly failed to take sufficient account of his advanced age and the good driving record.

8.   In his written submission, Mr Yu, counsel for the applicant, focused his appeal on the following four grounds.

Ground 1 :  Is the sentence manifestly excessive?

Cooksley & others

9.   Mr Yu referred to R v. Cooksley & others [2003] 3 All ER 40 which provides guideline for sentencing in dangerous driving causing death cases.  He submitted that the present case falls within the ‘intermediate culpability’ range which calls for a sentence of 2 to 3 years.  He submitted that many of the aggravating factors identified in Cooksley for highly culpable case of driving such as driving under the influence of drugs or alcohol or driving at excessive speed or racing were not present in this case.

Overview

10.   It is necessary to take an overview of the case first.  The maximum sentence for dangerous driving causing death is ten years’ imprisonment while dangerous driving causing grievous bodily harm is seven years’ imprisonment. 

11.   A person is to be regarded driving dangerously if

1) the way he drives falls far below what would be expected of a competent and careful driver; and

2) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

12.   The standard is an objective one as affirmed in R v Bannister [2010] R.T.R. 4.

13.   This Court in cases such as Secretary for Justice v. Poon Wing Kay [2007] 1 HKLRD 660, Secretary for Justice v. Fong Chai Man [2008] 3 HKLRD 493, Secretary for Justice v. Law Siu Kuen, CAAR 9/2009 and Secretary for Justice v. Liu Kwok Chun, CAAR 3/2009 adopted the sentencing guideline in Cooksley for dangerous driving causing death.  The two guiding features are the need for a deterrent sentence because of the grave consequence caused by the dangerous driving and the culpability of the defendant.  The latter is the dominant factor in the sentencing exercise. 

14.   In Liu Kwok Chun, this Court suggested that between the two extreme situations of dangerous driving because of momentary error or judgment on the one hand and a selfish disregard by the driver for the safety of other road users or with a degree of recklessness on the other hand, there are varying degree of culpability depending on the presence of the aggravating factors.  Factors such as consumption of drugs and alcohol, driving at greatly excessive speed or racing are usually present in highly culpable standard of driving.  This Court also suggested the range of sentence for each of the four categories of culpability :

Category of Culpability	Sentence
1) No aggravating circumstances.	12-18 months
2) Intermediate culpability where momentary dangerous error of judgment or a short period of bad driving aggravated by a habitually unacceptable standard of driving, by the death of more than one victim or serious injury to other victims or by the offender’s irresponsible behavior at the time of the offence.	2-3 years
3) Higher culpability where the standard of the offender’s driving is more highly dangerous, e.g. the presence of one or more of factors of (a) to (i).	4-5 years
4) Most serious culpability.	6 years onwards

Topasna

15.   While Cooksley referred to the aggravating factors which pointed to a highly culpable case of driving, it is important to bear in mind that the facts of each case are different and as pointed out in R v Stephen George Topasna [2007] 1 Cr. App. R. (S) 76 at paragraph  23 that whilst Cooksley provides valuable assistance to sentencers in determining where in the spectrum of sentencing a particular case falls, it was, and remains, a guideline case.  It is therefore of assistance to a sentencer but it is not prescriptive.

16.   Topasna is illustrative of the unique nature of an individual case on dangerous driving causing death.  The appellant there pleaded guilty to five counts of causing death by dangerous driving.  He was driving a double-decker bus when he stopped at a bus-stop to let off passengers and take on other passengers.  The area was extremely busy with people walking across the road in front of the bus.  When the appellant came to close the doors, the bus moved off and struck five people who were killed as a result.  A man received grave injuries.  It was accepted that when the appellant originally stopped the bus he applied the handbrake but left the automatic gear-box in drive.  Once the handbrake was released, the bus moved forward and the appellant would place his foot on the foot brake in order to restrain the bus before allowing it to move off.  On the occasion of the accident he mistakenly put his foot on the accelerator as he released the handbrake, with the result that the bus moved forward.  The appellant continued to believe that he had his foot on the brake and that the brake had failed.  He then realized that his foot was not on the brake, applied the brake and brought the bus to a halt.  The episode was estimated to have lasted about 16 seconds.  Sentenced to five years’ imprisonment concurrent on each count and disqualified from driving for seven years.

17.   The English Court of Appeal dismissed the appeal.  Latham LJ at paragraph 13 held that :

‘ The facts that we have related make it plain why this was a particularly difficult sentencing exercise. This does not fall into the category of cases where there has been any significant period of bad or irresponsible driving. It does not have any of the usual aggravating features, such as drink, or, in itself, excessive speed. This is a case where the cause of the incident was an error made by the appellant in identifying the difference between his brake pedal and his accelerator. That, in the circumstances, amounted to dangerous driving in itself. This has to be put in the context of a driver controlling a very large vehicle in an area which was clearly extremely busy with pedestrian traffic. It was a situation, accordingly, which required the greatest vigilance. The way in which the appellant dealt with the crisis with which he was confronted was in itself, as described by the judge, an extreme consequence of pedal confusion. And last, but not least, the consequences have been devastating. This is a case where the court was bound to take into account the substantial loss of life which was occasioned by this tragic error.’

18.   In Topasna the sentencing judge placed the case in the intermediate category, whereas the Court of Appeal expressed the view at paragraph 25 that :

‘ equally, the sentencing judge was entitled to decide that the case should more appropriately be placed, because of the factors to which we have referred, in the most serious category.’ (emphasis added)

19.   The Court of Appeal further expressed the view that irrespective of which category the case belonged, the seven and a half years’ starting point applied by the sentencing judge was not manifestly excessive.  The maximum sentence for the offence in England is 14 years.

The present case

20.   In the present case although the whole incident lasted only 21 seconds, the repeated manoeuvres which took place within this period of time resulted in the death and serious injury of two persons.  The case clearly does not fall within the ‘intermediate culpability’ of Cooksley which calls for a starting point of 2 to 3 years as urged upon us by Mr Yu.

21.  The present case is plainly a unique case.  It is different from the usual cases of this nature which may contain the aggravating features indentified in Cooksley.  Many of the cases referred to by Mr Yu are clearly not applicable to the facts of the present case.  Those cases are after all illustrations of the guidelines set out in Cooksley. 

22.  The two most aggravating features in this case are, as found by the Judge, first, the applicant was aware that the two victims were behind his car and second, the repeated manoeuvres of the applicant in reversing his car to the wall where the two victims were working. 

Knowledge

23.  The Judge’s view that the applicant knew the presence of the two victims behind his car when he got into his car to move it, is clearly supported by the applicant’s own admission to the police that he knew of their presence and also that he decided to move his car in order to give the men more space in which to work.  They are contained in the agreed summary of facts.  If the applicant’s case is that he thought that the men had left to take their lunch by the time he had finished reading his documents in the car, then he ought to have explained this by giving evidence at the Newton inquiry.  This is more so when the Judge had actually stated that he did not accept the applicant was not aware of their presence and invited Mr Yu to deal with this.  However, the applicant chose not to give evidence.

24.  The evidence also showed that the applicant’s car had a beeping device which would give a beep sound when the gear was put in reverse and when the car came close to other objects.  The agreed summary of facts which is based on events depicted on the CCTV recording further showed that after the first impact, a female cleaner ran to the car and then went to the wall where the two victims remained.  The applicant’s denial of his knowledge of the two victims is totally unbelievable.

Mechanical failure and panic

25.  The applicant’s contention that he reacted in a panicky manner is also unbelievable.  The car was parked on a slight incline, sloping downwards.  As the Judge observed, the handbrake must have been used to prevent it from rolling forwards.  When the applicant started the car, it did not immediately reverse back to the wall from that position, rather it moved forward for a distance of 1.8 meters and then stopped.  The stoppage must due to the applicant either put his foot on the footbrake or applied the handbrake.  It is inexplicable that the applicant would then release either the handbrake or footbrake and press on the accelerator which caused the car to reverse at a very fast speed of 12 km per hour towards the two victims, hit them and the wall behind them in the first impact.

26.  Even accepting, for the purpose of argument, what happened at the first impact was a result of panic reaction and mechanical failure of the gear, what followed afterwards was totally inexplicable. 

27.  What is surprising is that after the second rebound in the first impact, the car actually halted and became stationary.  This means the applicant must have again actually managed to put the car to a stop.  As the Judge observed, all that the applicant had to do at that stage was to put on his handbrake or keep his foot on the footbrake.  Yet the dangerous manoeuvre happened again resulting in the second impact.

28.  After the second impact, the car actually moved forward to a distance of 3.8 meters.  This means the applicant must have again managed to change the gear from the reverse to the forward position.  It is simply incredible that somehow that after moving forward the car would reverse again and caused the third impact.  The series of forward and backward movements could not simply be explained away by the defect of the gear button or the applicant stepping on the wrong peddle on the floor of the car.

Highly dangerous driving

29.  Applying the test for dangerous driving, the acts of the applicant in these three manoeuvres clearly constitute driving of a most highly dangerous kind.  With these factors the present case is plainly not a case involving momentary error of judgment on the part of the applicant.  The case comes within the top end of the category of culpability.  The Judge’s choice of eight years and six years’ starting points which are close to the maximum sentence is clearly a reflection on the highly culpable nature of the applicant’s driving.

30.  In our view no useful purpose is served by comparing the sentence in this case with that in Topasna where the maximum sentence of 14 years is higher than our statutory maximum of 10 years.  Ultimately the issue is whether the sentence in this case is manifestly excessive having regard to the facts of the case.  By giving a further four months’ reduction after the guilty plea, the Judge in effect adopted a starting point of seven and a half years.  He had the opportunity of viewing the CCTV recording and the horror that was depicted in it.  The sentence imposed by the Judge is not one that we are disposed to interfere for being manifestly excessive.

Ground 2 : Adverse inference wrongly drawn against the applicant?

1)  Deliberate untrue account given by the applicant

31.  The Judge held that the applicant had given untrue account of the incident to the police at the scene. Mr Yu contended that the applicant was unlikely to give a false account given his knowledge of the presence of a CCTV camera at the scene.  Further, given the sudden events that had happened which caused panic and anxiety on the part of the applicant, he might have simply given a brief description of the event to the police.

32.  The account given by the applicant to the police gave the impression that the incident was caused by a momentary error of judgment on his part namely, he wrongly turned the gear to the reverse position and wrongly stepped on the accelerator.  More importantly, there was only one sudden impact which caused the tragedy.  However, based on what was captured on the CCTV, the repeated reversing clearly showed that it was not an event that had happened in the flash of a second.  In our view the Judge was justified to describe the account given by the applicant as being untrue.  However, the Judge did not sentence on the basis that the applicant had given such a false account.  It is plain that the sentence was imposed because of the gravity of the factors that we have outlined earlier.

2)  Applicant’s knowledge of the presence of the two victims

33.  I had already addressed this issue earlier.

3)  Applicant had reversed the car three times into the two victims

34.  Mr Yu contended that the Judge had wrongly inferred that the car hit the deceased’s body for a third time when the expert had agreed that it was possible that the applicant had applied the brake and halted the car instead of hitting the deceased.

35.  The contention is misconceived as the applicant had agreed with the summary of facts which stated that in respect of the third impact, it is likely that the car struck the deceased again and it was this which prevented the car from hitting the wall.  The Judge’s statement simply followed that of the agreed facts.

36.  In any event the death was caused by the first two impacts.

4)    Reaction time

37.  Mr Yu contended the Judge failed to consider that a driver’s reaction will depend on different circumstances, such as one’s age, reflexes, mental state, some unexpected events and other variables.

38.  The question of reaction time must be judged in the context of the three impacts that we have outlined. Further as observed by this Court at the hearing, the answer to the question of the applicant’s competence and reaction is to be found in the meaning of dangerous driving.  In the present case, the applicant’s standard certainly fell far below that of a competent and careful driver.

5)    Panic reaction of the applicant and deliberate act

39.  Mr Yu contended that the Judge had erred in neglecting the impact of the sudden failure of the lock-release button on the gear.  The Judge had also treated the acts of the applicant as deliberate.

40.  We have already set out the reasons of the Judge when he addressed the contention of the applicant on how the accident occurred.  In our view the reasons had addressed the issue of panic reaction on the part of the applicant.  The Judge had refrained, as it was not necessary for him to do, from describing the acts of the applicant as a deliberate act in the sense that he wanted to kill or injure the two victims. The Judge stated that the applicant’s actions ‘are beyond any sensible understanding’ and proceeded to sentence on the basis that the applicant’s driving skill fell far below the standard of a reasonable or competent driver. The Judge rightly observed that :

‘ The dangerous driving in this case was of a magnitude which was truly terrible.’

Ground 3 : The Judge erred in treating the offence of dangerous driving causing death as if it was a charge of murder

41.  The applicant was originally also charged with murder (‘Count 1’).  The second count of dangerous driving causing death was an alternative to Count 1.  The prosecution reduced the first count to manslaughter.  Eventually the prosecution accepted the applicant’s plea to dangerous driving causing death and the manslaughter charge was left on the court file.  The prosecution’s case on the manslaughter charge was that of gross negligence.  Mr Yu submitted that :

‘ upon concerns and inquiries raised by the Judge, this more serious charge had then been dropped. But paradoxically, the Judge also took the view that the appellant’s acts were deliberate :-

“ I’ve actually had the time to read an awful lot of cases that actually didn’t help very much, but they all contribute to the fact that gross negligence is not what this case is. The more you read of the cases the less you get away from this case, which is a deliberate case.”

“ Any description of what is seen on that film defies belief. It is no small wonder that the police originally charged the defendant with murder.” ’

42.  Mr Yu submitted that the Judge actually sentenced the applicant on the basis of a murder charge.

43.  The difference between dangerous driving causing death and manslaughter has been noted by this Court in Law Siu Kuen at paragraph 54.  However, nothing turns on this distinction in the present case.  The Judge’s comment came during the sentencing hearing when the prosecution presented the Court with the manslaughter charge.  From this observation, it is a quantum leap to say that the Judge had sentenced the applicant on basis of a murder charge.  As pointed out by Mr Simon Tam SC, counsel for the respondent, that the Judge was simply explaining to prosecuting counsel what was required to be proved in a charge of manslaughter by gross negligence and reminded counsel the basis of his case was one of a ‘deliberate act’ rather than a ‘negligent omission’.

44.  In sentencing the applicant, the Judge observed that :

‘ ….if there was ever a case where driving in a dangerous manner leading to death and grievous bodily harm was as serious, if not more so, than negligent manslaughter, this case provides a prime example.’

Ground 4 : The Judge failed to take sufficient account of the advanced age and good driving record of the applicant

45.  The Judge had plainly taken these mitigating factors into account.

Conclusion

46.  Accordingly the application was refused.