HKSAR v. Kwan Wan Ki

[English Translation – 英譯本]

CACC 5/2019

[2020] HKCA 295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 5 OF 2019

(ON APPEAL FROM DCCC NO. 505 OF 2018)

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BETWEEN

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Before:  Hon Yeung VP, Pang JA and Poon J in Court

Date of Hearing:  7 April 2020

Date of Judgment:  14 May 2020

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court) :

Introduction

1.On 14 December 2018, the appellant (Kwan Wan Ki) was convicted of a count of causing grievous bodily harm by dangerous driving by District Judge F Sham (“the trial judge”).  On 19 December 2018, the trial judge sentenced the appellant to 18 months' imprisonment and disqualification for 2 years, and at the same time ordered the appellant to attend the driving improvement course, at her own cost, within the period of 3 months ending on the date on which the disqualification expires before she may obtain the driving licence again upon the expiry of the disqualification order.

2.The appellant applied for leave to appeal against the conviction and/or sentence.  The appellant also asked the court to grant her bail pending appeal.

3.On 12 February 2019, the appellant’s application for bail pending appeal was granted.  On 16 October 2019, a single Justice of Appeal refused the appellant leave to appeal against conviction, but allowed her leave to appeal against sentence. We will now deal with the appellant's formal appeal against sentence.

The facts

4.The matter arose out of a traffic accident.  The accident occurred at about 11:38 a.m. on 19 November 2017 at the traffic lights controlled pedestrian crossing of a single southbound lane outside 148 Tai Kok Tsui Road, Kowloon, involving a Honda mountain motorcycle of low horsepower that the appellant rode, the registration number being UV8414.

5.The speed limit of the road section in question was 50 km/h.  On the day of the accident the weather was good and the road surface was dry.  Before the accident, the appellant drove UV8414 along the southbound Tai Kok Tsui Road at about 30 km/h.  When approaching the pedestrian crossing where the incident occurred, the appellant failed to notice in time that the traffic lights had turned red.  Consequently, she failed to stop in time and hit a Madam Kwok who was crossing the road with her husband, Mr Choi, and their son.

6.The accident resulted in the dislocation of Madam Kwok's right ankle.  She underwent emergency closed reduction and external fixation, and two days later further underwent open reduction and internal fixation of her right ankle.  She continued receiving physiotherapy after being hospitalized for 7 days.  She has gained a satisfactory recovery, enabling her to work and walk as normal now.  The accident also resulted in minor injuries to Mr Choi and pain in the appellant’s neck and back, requiring hospitalization for three days.

7.The evidence shows that the accident occurred at a straight section of the road.  There was a “traffic lights” sign under which the word “School” was displayed 40 metres before the pedestrian crossing to remind drivers that there was a traffic lights controlled pedestrian crossing ahead and a school nearby.  Thus there would be school children crossing the road.

8.Before the accident, Madam Kwok, Mr Choi and their four-year-old son were at one side of the pedestrian crossing waiting to cross the road.  When the “green man” of the pedestrian traffic light was on, Mr Choi noticed that two motorcycles were stationary in front of the stopping line.  Thus the family began to cross the road together.  However, the motorcycle driven by the appellant failed to come to a halt in front of the stopping line but moved across the pedestrian crossing, and eventually hit Madam Kwok.

Reasons for Verdict of the Trial Judge

9.The trial judge accepted the appellant’s claim that at the time of the accident, her speed was about 30 km/h. He rejected the appellant’s assertion that she was following a 5.5-ton medium goods vehicle before the accident.  He found that the appellant was able to observe the traffic light signal before the accident.

10.The trial judge found that the accident was “caused by the appellant running a red light as a result of not keeping sufficient stopping distance”.

11.The trial judge was of the view that the appellant should have started the preparation to stop at least 16 metres from the traffic lights, but she waited until about 4 metres before the traffic lights before initiating the brake and therefore was unable to avoid hitting the pedestrian who was crossing the road.

The Appellant’s Background and Mitigation

12.The appellant was single and had a clear record.  After completing university education, she worked as a security officer for a coffeehouse chain and had obtained a driving license for about one year because of her work needs.

13.According to her superior, the appellant was a sincere person who treated her customers, superiors and colleagues with honesty, had a positive good character, and also actively participated in charitable activities.  Her counsel at trial argued that the appellant’s speed was not high at the time of the accident.  The accident might also have been caused by to the fact that the appellant had just purchased the motorcycle that she was driving, and therefore failed to properly familiarise herself with its performance.  In particular, UV8414 was equipped with tires suitable for mountains or uneven road surface.

Trial Judge’s Reasons for Sentence

14.The trial judge held that the sentence for dangerous driving must carry a deterrent effect, and the appellant ignored the warning of the light signal and failed to brake in time, knocking down Madam Kwok as a result.

15.The trial judge stressed that at the material time Madam Kwok and her family were crossing the road when the traffic light was in their favour, but were hit innocently and had to bear the agony caused by the accident.

16.The trial judge cited HKSAR v Tsang Ho Pong, CAAR 6/2009, HKSAR v Yu Wing Sing, CACC 33/2012 and other cases, and held that the proper starting point should be 21 months.  The trial judge gave her 3 months’ reduction for her positive good character.  Eventually the appellant was sentenced to 18 months’ imprisonment.

Grounds of Appeal

17.Numerous grounds of appeal were put forward by Mr Raymond Yu, Counsel representing the appellant.  Firstly, he pointed out that there was no aggravating factor whatsoever like speeding, jumping of red lights in succession, driving under the influence of alcohol/drug, driving an illegally modified vehicle or illegal car racing.

18.According to Mr Yu, it was due only to a momentary lapse of judgment that the appellant failed to stop the motorcycle in time and hit Madam Kwok.  Mr Yu submitted that the accident happened only in a split second, and the appellant’s culpability was at the lower end of the scale.

19.Mr Yu stressed that this case was different from Tsang Ho Pong and Yu Wing Sing in that the accident in question did not cause death.  Madam Kwok’s injury was not serious and she had even recovered completely.

20.Mr Yu argued that the trial judge arrived at a manifestly excessive sentence as he neither gave sufficient consideration to the appellant’s good background and mitigating factors, nor did he take into account the approaches taken in similar cases.  It was submitted that as the incident had an enormous impact on the appellant and she had decided never to drive a motorcycle again, the chance of re-offending was not high.  Mr Yu pointed out that the appellant had already served two months’ imprisonment.  He asked the court to deal with the appellant in a lenient manner and sentence her to a term of about three months so that she would not need to return to prison to serve out her sentence.

The Respondent’s Position

21.Mr Ivan Cheung, SPP, representing the respondent, stressed that as the appellant disobeyed the light signal and hit a pedestrian crossing the road at a pedestrian crossing, this case fell within the higher culpability range.  He submitted that in similar cases, the defendant’s good background carried little weight in sentencing, and the trial judge had already treated her leniently by giving her a sentence reduction of three months.

22.Citing the case of HKSAR v Lui Chung Tak, CACC 221/2012, Mr Cheung pointed out that the said case involved a driver of a double decker bus disobeying the light signal and hitting an elderly woman pedestrian at a crossing.  The Court of Appeal held that the appropriate sentence was one of 20 months’ imprisonment.

23.Mr Cheung also relied on Secretary for Justice v Chu Wing Yin Christine, CAAR 5 / 2018, stressing that the facts of that case were similar to those in this case, and the Court of Appeal considered that the appropriate starting point was one of 18 months’ imprisonment.  Mr Cheung was of the view that under the circumstances of the case, the sentence of three-month imprisonment suggested by Mr Yu was unrealistic, and the appropriate sentence should be no less than 12 months’ imprisonment.

Discussion

24.The court must reiterate the basic sentencing principles for offences involving dangerous driving.

25.Vehicles, in the hands of irresponsible drivers, can be extremely destructive weapons which can cause serious casualties and economic losses.  Drivers must always remember to drive carefully to avoid causing casualties to innocent road users.  The court has to impose deterrent sentences in dangerous driving cases with appalling facts. (see Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, para. 10(3))

26.If the defendant in a particular case has a positive good character or conduct, the court may, at its discretion, reduce the sentence. However, most of the defendants who committed dangerous driving offences have good backgrounds and do not have a propensity to commit a crime.  Therefore, factors such as the defendant’s good background or clear criminal record are not strong mitigating factors to the degree that the court should pass a non-custodial sentence on the defendant.  On the contrary, if the defendant has a criminal record, especially of multiple similar convictions, it will be an aggravating factor.

27.The Australian Court of Criminal Appeal, in R v Whyte [2002] NSWCCA 343, has the following observations about the sentencing of serious traffic offences committed by a person with a good background:

“Some sentencing judges find it very difficult to accept that a person of good character who is unlikely to re-offend should be sent to gaol. However, Parliament has made it quite clear that the injuries occasioned by driving dangerously and, no doubt, the prevalence of the offence, require condign punishment.”

28.Generally speaking, the consequences of a crime will not be the main consideration in sentencing.  However, as far as driving offences are concerned, the consequences of accidents, especially when a person dies as a result, should never be ignored by the court in sentencing (see HKSAR v Leung Chiu Yu [2012] 2 HKLRD 313 para. 33).

29.In Secretary for Justice v Wade, Ian Francis [2016] 3 HKC 274, the court also reiterated that all dangerous driving offences should be deterred.  In particular, if dangerous driving resulted in death or serious injuries, the sentence should be significantly different from that of dangerous driving alone.

30.In respect of sentencing for dangerous driving, the main concern of the court is the culpability of the defendant’s dangerous driving and the seriousness of the consequences.

31.For any deliberate and prolonged acts of dangerous driving that pose definitely foreseeable threats to other road users, especially when they result in serious casualties, the courts must take a serious view and impose sentences with sufficient deterrent effect.  Otherwise, the relatives and friends of the victims will view that as justice not having been done, and such sentences will not be able to soothe the distress and pain caused to them by the incidents, nor will they be accepted by the public.  On the other hand, if an act of dangerous driving was caused by a misjudgment or momentary inattention, and the consequences of the accident are not serious, the court may impose a more lenient sentence on the defendant.

32.When the dangerous driving results in death, even if there are no other aggravating factors, the court should impose an immediate custodial sentence, and the starting point should be one of 12 to 18 months.

33.In R v Cooksley & others [2003] 2 Cr App R 18 275 in the English Court of Appeal, Lord Woolf CJ stated in paragraph 11 of the judgment:

“Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what the mitigating circumstance, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence.”

34.The English Court of Appeal ruled that in cases of dangerous driving causing death without any special aggravating factors, the appropriate starting point is one of 12 to 18 months’ immediate custodial sentence.  It did, however, also agree with the approach adopted in R v Brown [2002] 1 Cr App R(S) 504, whereby the court may still impose a lower sentence in a case of dangerous driving causing death when the defendant has strong grounds for mitigation. The defendant in that case fell asleep briefly while driving in daytime, causing the vehicle to run into the opposite lane and collide with an oncoming vehicle, resulting in the death of that vehicle’s passenger.  The mitigating factors for the defendant included his plea of guilty, good character, excellent driving record and his shock and remorse shown towards the accident, which had devastating consequences on him and his family. The Court of Appeal reduced his sentence to one of six months’ imprisonment.

35.There is no doubt that when the light signal is red, a driver who fails to stop before a pedestrian crossing can be regarded as jumping a red light.  However, in this case, the trial judge’s findings showed that he did not think that the appellant intentionally forced her way through the pedestrian crossing when the traffic light was red.  In paragraphs 52 and 53 of his reasons for verdict, the trial judge stated as follows:

“52. Whether it was an amber light or a red light, she should have started the action for preparing to stop the motorbike at least 16 metres in advance (taking into consideration a stopping distance of 2 seconds). Yet she only started applying the brake about 4 metres before the traffic light, which of course made the collision unavoidable.

53. My conclusion - her driving attitude was such that while she knew that she needed to be ready to stop (when the red light or yellow light was on), she did not take action to stop at an appropriate distance.  When she did decide to stop the motorbike, the distance was far shorter than what would have been considered safe, and thus it constituted a danger to pedestrians crossing the road.”

36.The trial judge’s finding that the appellant drove dangerously was based on the fact that the appellant failed to take notice of the stopping light signal in time or in advance, and as a result failed to stop before the pedestrian crossing.

37.In fact, the objective evidence does not show that the appellant ignored the pedestrians walking across the road at the pedestrian crossing and intentionally ran a red light.

38.There is no information to show that the appellant was in a hurry at the material time. Before the accident, her speed was only 30 km/h, far below the speed limit of 50 km/h.  It is extremely likely that the appellant, out of momentary inattention, failed to timely notice the traffic sign and light signal, resulting in her failure to brake in time.

39.There is no aggravating factor in this case, except that the place of the accident was a pedestrian crossing.  In cases where death has been caused, according to the sentencing guidelines of the Cooksley case, the appropriate starting point should be about 18 months’ imprisonment.

40.However, no one died as a result of the accident in this case, and Madam Kwok’s injuries were not serious and she has recovered completely.  As mentioned above, this factor deserves attention in sentencing.

41.The dangerous driving in Tsang Ho Pong and Yu Wing Shing cited by the trial judge resulted in the death of pedestrians, and the Court of Appeal was of the view that the appropriate starting points were one of 24 months and one of 2 years and 9 months respectively.

42.In HKSAR v Lui Chung Tak, CACC 221/2012 referred to by Mr Cheung, the defendant drove a light goods vehicle and deliberately ran a red light, causing serious injuries to an 83-year-old woman.  As a result of her injuries, she was unable to lead an independent life and her family had to look after her.  She also had to walk with a stick.  The Court of Appeal held that the appropriate starting point was one of 20 months’ imprisonment.

43.Mr Cheung relied heavily on the case of Chu Wing Yin, Christine and argued that the facts of that case were identical as those of this case, and therefore the sentences should be similar.  We disagree with Mr Cheung’s observation.  In our view, except for the charges which are the same, there are obvious differences in the facts of the two cases.  First of all, the driving manner of the driver in that case was worse than that of the appellant because she ran the red light and passed the pedestrian crossing line at the top end of the speed limit of 50 km/h.  Although a speed of 50 km/h is not over the speed limit, a prudent driver should slow down before approaching the pedestrian crossing and should not continue to drive at the top end of the speed limit.  Furthermore, there were three victims in that case with one of them extremely seriously injured.  That person suffered from cerebral haemorrhage, a fracture to her left pubic ramus and left sacrum, and had to undergo two craniotomy procedures and stay in hospital for up to one month.  As a result of the injuries to her brain, she suffered from aphasia, right body paralysis, movement difficulties, and cognitive impairment, and therefore required a caregiver to assist with her daily activities.

44.In our view, compared with the defendant in Chu Wing Yin, Christine, the appellant has a lesser culpability both in terms of the dangerousness of the driving behaviour and the consequences brought about by such driving behaviour. The appellant did not intentionally run the red light.  Rather, she failed to brake in time as a result of her inattention and failure to timely notice the traffic sign and light signal.  Madam Kwok’s injuries were much less serious than those of the victim in Chu Wing Yin, Christine.  She only needed to stay in hospital for 7 days, and her recovery has been satisfactory.  She can work and walk as normal.

45.We are of the view that when the trial judge adopted the 21-month starting point, he did not give due consideration to the culpability of the appellant's dangerous driving, nor did he attach sufficient weight to the two important factors, namely that this incident did not lead to death or serious injury.

46.The appellant's dangerous driving did not involve any particular aggravating factor, and Madam Kwok was not seriously injured and has fully recovered.  However, we cannot ignore that the appellant rode a mountain motorcycle and, without paying attention to the traffic sign and light signal, drove through the pedestrian crossing and hit a pedestrian who was crossing the road with a green light in her favour.  The appellant’s driving behaviour was extremely irresponsible, and the court’s sentence must reflect the seriousness of the matter.

47.We are of the view that even if the matter is considered in the most favourable light to the appellant, the appropriate starting point cannot be less than 10 months’ immediate imprisonment.  The trial judge gave the appellant a three-month reduction for her positive good character and participation in charitable activities. We have also taken into account that the matter has been hanging over the appellant’s head for a long time, and that the sentence she has to serve, regardless of its length, will have devastating consequences for her and her family.  Therefore, we will allow the appellant an additional reduction of one month, which brings the final sentence to one of six months’ imprisonment.

48.We stress that the six-month sentence has reflected the court’s leniency to the appellant and the benevolent approach that we have taken. We hope that Madam Kwok, her relatives and friends, and the general public should find such approach acceptable.

49.The appellant’s appeal against sentence is allowed.  We set aside the original sentence of 18 months’ imprisonment imposed on the appellant and substituted it with a sentence of 6 months’ imprisonment.  The original disqualification order and the conditions to be fulfilled before the appellant can be re-issued with her driving licence are upheld.

Mr Raymond Yu and Mr Antonio Tsui, instructed by Ivan Tang & Co, for the appellant

Mr Ivan Cheung, SPP, of the Department of Justice, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.