HKSAR v. Wong Mun Ming

CACC 130/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 130 OF 2015

(ON APPEAL FROM DCCC 740 OF 2014)

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J U D G M E N T

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Introduction

1.The applicant appeared before District Court Judge G Lam on 24 March 2015 and pleaded guilty to one charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.  On 31 March 2015 the judge sentenced the applicant to 20 months’ imprisonment and made an order disqualifying him from holding or obtaining a driving licence for a period of 6 years.  He further ordered the applicant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period. 

2.The applicant has applied for leave to appeal against his sentence but has made it clear that the only part of the sentence in respect of which he seeks the leave to appeal is the disqualification order.  In respect of this order his complaint is about the length, 6 years, of the period for which he is disqualified. 

The background to the offence

3.The motor vehicle accident occurred at Lung Fu Road, Tuen Mun.  On 11 January 2014 at 1155 hrs, the applicant was driving a tractor with a trailer along Lung Fu Road which consists of a two lane road in both directions and has a concrete central divider separating the two sides of the road.  The speed limit in this area is 70 km/hr but the section of the road on which the applicant was driving contains a bend and their existed road signs indicating the upcoming bend and requiring drivers to slow down as they approached it.  However, instead of slowing down as he approached this bend the applicant in fact increased his speed to 80 km/hr and as he negotiated the bend he lost control of his tractor.  The trailer toppled over the central divider and onto the opposite bound lane.  As it did so it dragged the tractor over the concrete central divider and into incoming traffic travelling in that opposite lane.  The deceased, who was 69 years old, was driving a trailer in the opposite incoming traffic lane and as a result of the collision with the applicant’s vehicle, suffered severe and extensive multiple injuries from which he died at the scene. 

4.The road surface was in good condition and the only explanation for the accident was the applicant’s excessive speed.  His speed was excessive not just in terms of the speed limit for that road which was 70 km/hr, but it was excessive in terms of the particular bend that he was negotiating at the time of the accident.  This bend was such that he should have slowed down below 70 km/hr in order to drive safely through it.  

The mitigation

5.The mitigation concentrated on the culpability of the applicant’s dangerous driving, the impact of the accident upon him and his remorse for it.  In terms of the punishment that he should receive the mitigation focused on the sentence of imprisonment and no submissions were advanced in respect of the period of disqualification. 

The Reasons for Sentence

6.In addressing the seriousness of the applicant’s driving the judge noted that when he was negotiating the bend, instead of reducing speed, “he contravened all the traffic signs and road markings and drove at an excessive speed, causing the tractor to run out of control”.

7.The judge said that he agreed that the applicant’s case did not fall within the higher culpability category as set out in the case of R v Cooksley [2003] 3 All ER 40.  Of this the judge said:

“I agree, but cannot overlook the defendant’s flagrant disobedience of traffic signs and road markings for reducing speed.”

8.The judge then said that after considering all relevant factors he would adopt a starting point of 2½ years’ imprisonment which when this was discounted by one third for the guilty plea became 20 months’ imprisonment.  He then said:

“In addition to imprisonment, I make a disqualification order for a period of 6 years (the disqualification period will start to run from the date of sentencing).”

In a footnote to this paragraphthe judge explained:

“I have taken into account of the defendant’s prison term in order to the 5-year disqualification period its true effect.”

9.The Road Traffic Ordinance in section 36(2)(a) provides for a mandatory disqualification period of not less than 5 years in the case of a first conviction.  The judge’s comment in his footnote suggests that by his order the applicant would be subject to disqualification for close to the mandatory 5 years after his release from prison.  No further explanation was provided by the judge of how he came to settle upon a period of 6 years as being an appropriate disqualification period for this applicant. 

The grounds of appeal

10.There is only one ground of appeal and that is that the 6 years’ disqualification period is manifestly excessive.  In support of this ground of appeal the applicant’s counsel, in a written submission filed with the court, argued that given the level of culpability of the applicant’s driving and given that disqualification is preventive rather punitive, and furthermore given that the applicant has a clear driving record and needs to drive for his livelihood a disqualification period that would extend for 4½ years after his release from prison is excessive.  The applicant said that there is no justification for imposing upon the applicant a disqualification period greater than the mandatory minimum of 5 years. 

Discussion

11.This application raises interesting questions of how a sentencing court should respond to the minimum mandatory period of disqualification scheme created by the Road Traffic Ordinance.  The judge appears to have approached the minimum period as being one which should, in order to be truly effective, and perhaps also to better reflect the intention of the legislature, be increased to allow for the period spent by the applicant in prison.  Whether this is a proper approach to by a sentencing judge to the assessment of the length of a disqualification order is something which I believe should be addressed by the Court of Appeal.  Furthermore, the question is also raised of whether a judge who is contemplating making an order longer than the mandatory minimum should so indicate to the defendant and provide him with an opportunity to advance any submission he may wish to make on the length of the disqualification. 

Conclusion

12.I, therefore, grant the applicant leave to appeal against his sentence in respect of the period of his disqualification order.

Written submission by Ms Noelle A Chit, Ag. SPP, of the Department of Justice, for the respondent

Written submission by Mr Michael HK Leung, instructed by the DLA, for the applicant