Secretary for Justice v. Ip Wai Ho Micky

[English Translation － 英譯本]

CAAR 2/2024, [2025] HKCA 352

On Review From [2024] HKDC 455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 2 OF 2024

(ON REVIEW FROM DCCC NO 711 OF 2022)

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BETWEEN

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REASONS FOR JUDGMENT

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

1.The respondent pleaded guilty to one count of “using a vehicle equipped with an illegal visual display device” (Charge 2), one count of “using a goods van without a fixed protective partition between the cargo compartment and the seats” (Charge 3), and one count of “careless driving” (Charge 4). He was sentenced in the District Court by Judge Eddie Ip to a fine of HK$1,500, HK$1,500, and HK$3,000 respectively. The Secretary for Justice was of the view that the sentence for Charge 4 was wrong in principle and manifestly inadequate. Therefore, pursuant to Section 81A of the Criminal Procedure Ordinance (Chapter 221), the Secretary for Justice applied to the Court of Appeal for a review. After a formal hearing, this Court granted the application and resentenced the respondent as set out in paragraph 39 below. The following are our reasons for judgment.

Agreed facts

(Basic facts)

2.The trial judge’s Reasons for Sentence reads:[1]

“2. The traffic accident in this case took place on Hollywood Road, Central (‘the accident’). The location of the accident was the zebra crossing on the 1st lane from the left of Hollywood Road, Central (near the intersection with Old Bailey Street) (‘the zebra crossing’). There were pedestrian traffic signals on either end of the zebra crossing, and the speed limit for that section of the road was 50 km/h.

3. On the day of the accident, it was cloudy and traffic flow was light on eastbound Hollywood Road in Central, and the road surface conditions were good.

4. Before the accident occurred, the defendant was driving a light goods vehicle with vehicle registration mark ‘RZ8366’ (‘the vehicle’) along the 1st lane from the left of eastbound Hollywood Road. At approximately 0841 hours on 19 February 2022, Chung Ho-yin, a 34-year-old Chinese male (‘the deceased’), was walking across the zebra crossing from north to south while the red pedestrian traffic signal was on. The deceased was then struck by the vehicle driven by the defendant and as a result fell to the ground.”

3.The deceased suffered severe head injuries and the exact date of his death was 23 February 2022, i.e. four days after the collision.[2]

4.The footage captured by the on-board camera of the vehicle (“Accident Footage”) shows:[3]

“7. …

(1) Approximately 2 seconds before the accident, the deceased was standing on the north side pavement of the zebra crossing;

(2) Approximately 2 seconds before the accident, the deceased began to cross the zebra crossing slowly;

(3) The vehicle showed no signs of deceleration prior to the collision. Details are as follows:

(i) At approximately 08:40:30, the vehicle stopped in the second left lane of Hollywood Road, and the zebra crossing was ahead of the spot where the vehicle stopped. At that time, it was cloudy with low traffic flow, and the road surface was slightly wet and well-lit with clear visibility;

(ii) At approximately 08:40:50, the vehicle began to move towards the east, and then it crossed over the central dividing line into the first left lane of Hollywood Road, and continued eastward along the first left lane;

(iii) At approximately 08:40:53, the vehicle approached the zebra crossing at medium speed while the green vehicular traffic light was on.

iv) At approximately 08:40:56, the deceased was seen standing on the pavement north of the zebra crossing, about to cross the zebra crossing from north to south. At that time, the forward view from the vehicle was clear and unobstructed by any objects or other vehicles. The vehicle in question showed no signs of deceleration or emergency steering;

(v) At approximately 08:40:57, the deceased stepped out with his left foot and began to cross the pedestrian crossing slowly. At that time, the pedestrian traffic light was red and the vehicular traffic light was green. By that time, the vehicle in question still had not exhibited any signs of deceleration or emergency steering;

(vi) At approximately 08:40:58, the deceased continued to cross the zebra crossing slowly and reached the middle part of the first left lane on eastbound Hollywood Road, approximately three metres from the vehicle which still had not shown any signs of deceleration or emergency steering. The vehicle, driven by the defendant, then knocked down the deceased immediately afterwards.

5.The vehicle was at the same time found to be in breach of the regulations as alleged in Charges 2 and 3.[4]

(Government expert)

6.Based on the footage of the accident, the government chemist estimated that: at the moment of collision, the vehicle was moving at a speed (“estimated speed”) of 28 km/h (with a margin of error of ±3 km). Assuming the respondent’s reaction time (the shortest time from perceiving danger to responding) was 0.9 second, the estimated braking distance at that speed would be 13 metres. It meant that if the respondent had noticed the danger ahead when he was 13 metres from the deceased and had made an emergency stop, the vehicle could have been brought to a complete stop without colliding with the deceased.[5]

7.However, considering that the vehicle’s speed could have been 31 km/h (28+3), the government chemist agreed that the possibility of the vehicle accelerating to 33 km/h just before the accident could not be ruled out. The government chemist confirmed that even if the vehicle had only been traveling at 30 km/h, the braking distance would have increased to 15 metres.[6]

(Respondent’s culpability)

8.The Reasons for Sentence went on to say that:[7]

“14. At all material times, when driving the vehicle along the road, the defendant failed to exercise due care and attention, or failed to take reasonable account of other users of that road. That is to say, when driving the vehicle in question before the accident, the defendant failed to do these:

i. When approaching the zebra crossing where the accident took place, he did not slow down but instead accelerated slightly;

ii. When approaching the zebra crossing where the accident took place, he did not notice that the deceased was on the pavement next to the zebra crossing;

iii. While driving the vehicle in question, he failed to maintain concentration on the roadway;

iv. He completely disregarded the risk that pedestrians might step out onto the road at the pedestrian crossing;

v. He failed to brake immediately when the deceased stepped out onto the zebra crossing;

vi. He failed to brake even when the deceased continued to cross at the zebra crossing; and

vii. Before the vehicle knocked down the deceased, the defendant never did any act to warn the deceased or avoid knocking him down."

9.The above paragraph of the Reasons for Sentence is in fact an extract from the Re-amended Facts prepared for the respondent’s guilty plea. Besides, due to the trial judge's insistence (see the next sub-section for the process), the prosecution also inserted into that document a sentence not originally there, a sentence which in the end was directly quoted by the trial judge as part of the Reasons for Sentence:[8]

“15. The prosecution agrees that even if the defendant had performed the acts described in paragraph 14 at the time of the offence, the collision with the deceased would still have been unavoidable.”

Before and after plea

10.In light of the fact that it was a fatal accident, the respondent initially faced a count of “dangerous driving causing death” (Charge 1). Following negotiations, the respondent instead admitted to a newly added charge of “careless driving” (Charge 4), which was an alternative to Charge 1.[9] Before entering into the aforesaid plea bargain, the prosecution was aware of and the government chemist did not refute the following opinion (or conclusion) presented by the defence expert:

“6. Could the accident be avoided

6.1 In Frame A265 (Figure 9), that is 1.64 seconds before collision, Defendant had an unobstructed view of the Crossing ahead. The front of the Van was about 15 m from the path of Deceased. At that instance, Deceased had already started to step onto the Crossing and Defendant could have perceived Deceased’s crossing manner having posed a danger. Speed of the Van was about 30 ± 3 km/h (or 27 to 33 km/h) and could have been 33 km/h. The required stopping distance for the Van to be stopped from 33 km/h to a complete halt under emergency braking with a reaction time of 0.9 seconds and a coefficient of tyre/road friction of 0.45 on wet traffic polished concrete road surface would be about 18 m. The required stopping distance was longer than the 15 m distance between the front of the LGV and the path of Deceased and the collision could not have been avoided. Calculations of the required stopping distance are shown below.”

11.In any event, the Agreed Facts prepared to accommodate the plea bargain initially did not contain the sentence which has now become paragraph 15 of the Reasons for Sentence (see paragraph 9 above). In fact, that sentence remained non-existent even when the defendant formally pleaded guilty and confirmed the truthfulness of the first version of the Agreed Facts. It was not until the defence commenced its submission in mitigation, during which reference was made to the defence expert’s opinion and the fact that the opinion was not rebutted by the prosecution, that the trial judge began to question the Agreed Facts.

12.The trial judge said, “How can that be categorized as careless... It was simply bad luck... when someone suddenly darted out from the crossing... No driver could have stopped in time.”[10] Even when defence counsel indicated that “the defendant himself finds his own case one of a minor degree of carelessness, a minor case of careless driving”, the trial judge simply would not accept it. He said, “But I need to know how minor it was, because if there was no carelessness, you can’t just plead guilty and be taken as careless.”[11] Even when the prosecution further explained that the defendant had never slowed down from the time the deceased stepped out onto the pedestrian crossing, clearly demonstrating a lack of concentration, the trial judge continued to counter: “That means the collision couldn’t be avoided no matter if you braked or not, but still you had to brake... You had to make a useless movement... Not making a useless movement means that you’re careless... Your standards are so high.”[12] The trial judge even criticised the prosecution for relying on confusing precedents,[13] questioning whether the fatality warrants “getting someone to blame”.[14]

13.In the circumstances, the court was locked in an impasse with both the prosecution and defence without a resolution, and the matter was only settled when the case was adjourned for two weeks, with a further round of discussion and the prosecution indicating its willingness to accept the trial judge’s suggestion. The trial judge said this at the time[15]:

“Court: You’re saying that even if he had braked—no matter how he had braked or stopped—this tragedy couldn’t have been avoided, is that what you mean? Right, if you put that in writing, I’ll be satisfied. I can fine him, simple as that. That’s it. Well, since that person’s death really wasn’t his (fault). Of course he wouldn’t want that to happen. Nobody would want that sort of accident. Nobody would want to hit and kill anyone. Nobody would want to knock anyone down. The point is, the criminal liability must fall reasonably within a scope that a driver can bear. You can’t just say, cause no matter what—listen, if your logic is, ‘Yes, no matter how you had braked the vehicle, no matter what you had done at the time, you would have hit and killed him anyway, but precisely because you didn’t do it, I—because someone died, you must take responsibility. So you—there’s a crime, right. So you’ll take responsibility for this crime.’ It’s like that. I think, I’m not saying you can’t have such a mindset. But you have to make it clear in writing: no matter what he had done; don’t say anything like, don’t say anything like because he failed to do (i) to (vii) in the Roman numerals. You said that he failed to do all those, and you mentioned things like he didn’t brake, didn’t notice his presence, and so on. But what you should write down is that even if he had done everything from (i) to (vii), he would still have hit and killed him, right? Write that into the Agreed Facts, okay? No problem. Then I can handle that plea, alright? That’s your position, as a matter of fact, correct?”

14.The foregoing explains how the Agreed Facts ultimately came to include the statement: “The prosecution agrees that even if the defendant had performed the acts described in paragraph 14 at the time of the offence, the collision with the deceased would still have been unavoidable.” Having confirmed the truthfulness of the latest version of the Agreed Facts, the respondent then proceeded with a plea in mitigation.

Original Sentence

(Plea in mitigation)

15.At the time of the offence, the defendant was 46 years of age, unmarried, and a self-employed light goods vehicle driver and owner of the vehicle. He had a substantial record of serious criminal convictions, though only a few were traffic-related, including one of “careless driving”. During mitigation, the defence submitted that the section of Hollywood Road in Central where the collision occurred was a slope that went gradually upwards. After starting the vehicle, the defendant had to accelerate before he could reach the pedestrian crossing where the accident occurred. Defence counsel cited expert opinion accepted by both prosecution and defence that the vehicle could have been travelling at a speed of 33 km/h at the moment of impact, and that the respondent could not have seen the deceased earlier than when he was 13 metres off, and therefore, in any event, he would have been left with too short a distance to brake to a halt under the circumstances.

(Actual Sentence)

16.Upon hearing the defence’s plea in mitigation, the trial judge immediately said this: “I shall impose a fine... will not sentence him to imprisonment.” The trial judge explained that since the new Agreed Facts pointed out that the collision was unavoidable, the carelessness just “cannot be linked to the collision with the deceased.” He therefore had to “decouple” the carelessness from the fatality and indicated that “with the decoupling done”, he just “cannot see any aggravating factors for the careless driving”, and could only impose a fine.[16]

17.Following the same line of reasoning, the trial judge subsequently asserted in his Reasons for Sentence as follows:[17]

“19. Regarding careless driving (Charge 4), the prosecution’s position is that even if the defendant had performed the acts described in paragraph 14 at the time of the offence, the collision with the deceased could not have been avoided. I am of the view that although fatality was involved, the death was not attributable to the defendant’s fault. Therefore, imprisonment is not appropriate. The defendant is sentenced to a fine of $3,000.”

Grounds of review

18.The Secretary for Justice, represented primarily by Mr Ira Lui Tsz-ming, Assistant Director of Public Prosecutions, put forward three grounds of review as follows.

(Ground 1)

19.Ground 1: The trial judge placed undue emphasis on the unavoidable nature of the accident, hence the sentence that was far too lenient, which failed to reflect the seriousness of the offence.

20.Key Submissions:

The trial judge believed that there is always a causal link between the questions of whether careless driving can be established and whether the collision is avoidable. That is to say, he believed that only the kind of collision which could have been avoided would constitute careless driving. This is incorrect.

Based on this misunderstanding, the trial judge was of the view that even if the respondent had indeed been careless, since the collision was unavoidable, the death resulting from the collision should be entirely excluded from all sentencing considerations. This too is incorrect.

The correct legal principle should be, whether any accident took place, including whether it caused any loss of life or injuries, is not an element of the offence of careless driving. However, loss of life or injuries resulting from an accident is a factor that must be considered in sentencing. See the Court of Appeal case of HKSAR v Ng Siu-bun [2020] 1 HKLRD 553.

(Ground 2)

21.Ground 2: In sentencing, the trial judge should have but failed to consider (i) the quality of the respondent’s driving and the corresponding culpability, and (ii) the consequences resulting from his careless driving.

22.In respect of (i):

The trial judge made no attempt whatsoever to evaluate the quality of the respondent’s driving. He merely used an extremely brief four-line passage (see paragraph 19 of the Reasons for Sentence) to emphasise that “the death was not attributable to the defendant’s fault” and “therefore imprisonment is not appropriate”. That approach is wrong.

The contents directly transposed from the Agreed Facts to the Reasons for Sentence as paragraph 14(i) to (vii) were the key points which the trial judge ought to have focused on. Those contents formed the essential basis of the defendant’s guilt. The trial judge should have based the sentence on the quality of driving reflected therein.

23.In respect of (ii):

A substantial body of local and English case law demonstrates that in sentencing for careless driving, in addition to quality of driving, the consequences of the careless driving should also be taken into account. The trial judge’s assertion that the fatality should be ‘decoupled’ from the careless driving is incorrect.

The Hong Kong authorities include: HKSAR v Lam Chi Fat [2012] 1 HKLRD 961; SJ v Leung Chiu-yu [2012] 2 HKLRD 313; HKSAR v Tsim Wai CACC 180/2012; Secretary for Justice v Sze Sum [2014] 5 HKLRD 640; HKSAR v Wong Chun Wai [2019] 5 HKLRD 726; HKSAR v Ng Siu-bun [2020] 1 HKLRD 553; SJ v Siu Kai Chi [2022] HKCA 329.

The English authorities include: R v Derek Simmonds [1999] 2 Cr App R 18; R v King [2002] RTR 1.

Similar observations can also be found in some cases of “dangerous driving causing death”, e.g. SJ v Poon Wing-kay [2007] 1 HKLRD 660 and SJ v Hung Ling Kwok [2010] 4 HKLRD 359.

(Ground 3)

24.Ground 3: The trial judge should have but failed to consider other sentencing options, and the sentence imposed was wrong in principle and manifestly inadequate.

25.Key submissions:

The Court of Appeal has not set down sentencing guidelines for careless driving, but a survey of the relevant authorities would show that where careless driving resulted in loss of life or serious bodily injuries, the court would generally consider imposing a short-term imprisonment plus disqualification from driving. However, the trial judge simply showed no signs whatsoever of having taken that into consideration.

The relevant authorities include: HKSAR v Chan Tin Chee Jason CACC 419/2013; HKSAR v Ma Kwong Tak CACC 217/2014; HKSAR v Lam Ping Kwong CACC 263/2015; HKSAR v Yeung Yiu Kin CACC 198/2016; HKSAR v Yu Jie [2023] 5 HKLRD 261; and the local cases cited in paragraph 23 above.

Respondent’s Reply

26.Mr Joseph Lee, counsel for the respondent, was not the defence counsel at trial.

27.Mr Lee does not dispute the Secretary for Justice’s statement of principle that causation in the accident is not an element of the offence of careless driving; that it is the defendant’s quality of driving that the court must consider no matter whether the accident was unavoidable; and that if the accident resulted in death, it is a factor that the court must take into account in sentencing.

28.Mr Lee admitted that the respondent was indeed driving carelessly. He accepted the advice in the Road Users’ Code that even if pedestrians are jaywalking, drivers do have the legal and moral responsibility to take proper care to beware of and avoid accidents with pedestrians.

29.Mr Lee contended that although the defendant was careless, the fact that the accident was unavoidable should be considered by the court in sentencing; that the defendant’s carelessness was merely momentary and of a very low degree, so although the fine imposed was rather ‘lenient’, or even a ‘borderline’ case, it was nonetheless within the trial judge’s discretion to impose such a penalty; and that alternatively, the court may consider sentencing options other than immediate imprisonment, such as disqualification from driving for 12 months (see Leung Chiu-yu (supra)).

30.Mr Lee cited a number of magistracy appeal cases and some other cases mentioned above to emphasise that while a prudent driver should remain vigilant for pedestrians stepping out onto the roadway, the court cannot expect a driver to have flawless and unrealistic quality of driving: HKSAR v Yick Kwong Hung [2010] 2 HKLRD 369; HKSAR v 周佩茜 HCMA804/2006; HKSAR v 林洋鋐 HCMA 236/2010; HKSAR v 張鐳輝 [2019] HKCFI 1221; HKSAR v 陳貴庭 HCMA525/2010; HKSAR v Lee Mechian HCMA797/2005; Ng Siu-bun (supra); Lam Ping Kwong (supra); and Yeung Yiu Kin (supra)

Discussion

31.As mentioned above, the respondent acknowledges all the legal principles put forward by the Secretary for Justice. This is the correct and only viable approach for the respondent. In fact, the relevant legal principles have been firmly established during the past fifteen years at the latest. For example, in the case of Ng Siu-bun (2020), the Court of Appeal said this at para 34 of the judgment:

“ … the causation of a consequence such as death or grievous bodily harm is not an element of the offence of careless driving. It may, however, be a factor in sentence for careless driving …”

For that reason, this Court deeply regrets that the matter of the relevant principles was disputed in the present case.

32.This Court recognises that the cases appear somewhat contradictory in asserting on the one hand that loss of life has no bearing on the constitution of careless driving, while on the other hand holding that such loss is a factor to be considered in sentencing. Yet the underlying logic is in fact remarkably coherent. Let us take the following scenario as an example: a driver collided with a pedestrian because the driver failed to see the pedestrian; the driver failed to see the pedestrian because the driver did not pay attention to the roadway; the driver did not pay attention to the roadway because the driver lacked concentration. In other words, the driver’s carelessness is defined by the lack of concentration and not by the collision. This is the most fundamental logic.

33.Let us consider a different scenario. When the pedestrian was struck by the vehicle, there were self-inflicted problems like failing to observe traffic signals and suddenly darting onto the road, in which case even a driver staying reasonably alert would not be able to avoid the collision in time. Yet likewise, the driver involved was unable to see the pedestrian; his failure to see the pedestrian was the result of not paying attention to the roadway; and his not paying attention to the roadway also stemmed from his lack of concentration. In the circumstances, the driver was likewise careless, and similarly, his carelessness is defined by his lack of concentration and not by the collision.

34.As to whether the driver would be entirely exempt from additional culpability for causing injuries or death due to the pedestrian’s own fault and the collision being unavoidable, the answer is certainly “no”. However, the extent of culpability depends on various factors such as weather conditions, vehicle speed, road type, road surface conditions, and any other factors that may affect concentration. In summary, the more serious the driver’s disregard for the objective surroundings and the fewer justifications for losing concentration on the roadway, the greater his culpability would be. The most straightforward explanation is that even if the collision was unavoidable, a driver who had remained reasonably alert would have taken precautions and corresponding measures according to the circumstances, to at least lessen the collision’s consequences – actions that this driver failed to take.

35.Moreover, the Court of Appeal had pointed out in the 2012 case of Leung Chiu-yu that preventing loss of life and injuries is the core policy objective underlying all driving offences; and since the court, when imposing a penalty for careless driving, would take into account the potential danger of the offence, there would be no reason not to consider the actual consequence that the offence had caused loss of life or injuries. This is the indisputable logic underpinning the entire sentencing approach (paragraphs 33 and 34 of the judgment):

“33. The fact that the primary consideration in driving offences is the culpability of the impugned course of driving does not derogate from the fact that the consequences of that driving are relevant for sentencing purposes. There is obvious sense in the remarks made by Blair-Kerr J in Chan Kwai Lai v R [1968] HKLR 31 at 42 that whilst the fact that a driver has killed someone is not an element in the offence of careless driving, nonetheless:

‘… What the fact of death does is to throw into proper perspective the reason behind the enactment of various provisions relating to careless, dangerous and drunken driving, speeding, failing to give preference to pedestrians on road crossings, failing to obey various lawful orders in regard to stopping when approaching major roads and so on. These provisions have one object: to reduce the risk of death and injury on our roads. Yet, how often do we all forget the intensity of the potential danger to persons or property which is created by careless driving.’

34. In a number of cases in England and Wales the point has been made in relation to careless driving which causes death that whilst culpability remains the primary consideration, the sentencing judge should nonetheless not close his eyes to the fact, where it pertains, that death had resulted: see R v Morling [1998] 1 Cr App R (S) 421; R v Simmonds [1999] 2 Cr App R 18; R v King [2002] RTR 1. In any case of careless driving, a sentencing court will have regard to the potential consequences of the piece of careless driving under consideration – whether, for example, there were other vehicles on the road, or pedestrians about who were put at risk, and so on. That being so, there is no logic in ignoring for sentencing purposes the actual consequence of an act of careless driving.

35. What weight is to be given to that consequence depends on the nature of the consequence and all the circumstances of the case…”

36.Applying the foregoing discussion to the present case, the only conclusion would be that the trial judge erred in sentencing. As this Court pointed out during the hearing, the accident took place at the Mid-Levels of Hong Kong Island. That section of the road only had two lanes. There were commercial and residential buildings and eateries lined up on both sides of the road, and the accident took place during the morning peak hours when it was drizzling. With such objective surroundings, it was totally predictable that some pedestrians might suddenly step out from the crossing or elsewhere without heeding traffic signals. The legal requirement for drivers to stay reasonably alert is by no means too high a standard, and it was even more off the mark to describe the situation as “getting someone to blame”. Conversely, what does the evidence show? It shows that the respondent was completely “distracted”, failing to recognise the need to slow down or brake up until the moment the deceased was knocked down. Yet the trial judge failed to identify any of these factors.

37.As aforesaid, the respondent does not dispute the overriding principle outlined above. The respondent’s assertion was that the law does not require the respondent to have flawless driving quality, and that his lack of concentration on the roadway was merely momentary. However, the problem is that these submissions, while not invalid in themselves, in fact do little to mitigate the defendant’s culpability in light of the core facts repeated above. As to the cases cited by the respondent, they are either of the remote past or each has their own background details, and therefore likewise cannot help the respondent.

38.This Court holds that the original sentence in this case was wrong in principle and manifestly inadequate, and therefore must be rectified. The appropriate sentence should be four and a half months’ imprisonment, reduced to three months following the discount for the guilty plea. However, as this is a sentence review and a year has lapsed since the original sentencing, this Court will exercise discretion and suspend the sentence for 12 months.

Order

39.The Secretary for Justice’s application is granted. The respondent’s fine is set aside and replaced by a sentence of imprisonment for three months, suspended for one year.

Mr Ira Lui Tsz-ming, ADPP, and Mr Anson Lai Kai-yeung, Public Prosecutor, of the Department of Justice, for the Applicant

Mr Joseph Lee, instructed by Au-Yeung, Chan & Ho, Solicitors, assigned by the Director of Legal Aid, for Respondent

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.