The Queen v. Pang Kwok-poon
Read the full judgment text of CACC 23/1985 on BabelCite. This Court of Appeal judgment was delivered on 19 March 1985 before Roberts, C.J., Kempster, J.A. & Hunter, J..
Criminal law – dangerous driving causing death – dangerous driving causing grievous bodily injury – sentencing – custodial sentence – driving disqualification – appeal against sentence – selfish disregard for safety – defective brakes – whether sentence manifestly excessive – Criminal law – sentencing – categories of dangerous driving causing death – whether custodial sentence and disqualification period excessive in light of clean driving record and absence of aggravating factors – Sentencing – dangerous driving causing death – two-category framework from Guilfoyle v. R. applied – case falling within more serious category of selfish disregard because applicant knowingly drove vehicle with defective brakes – Boswell v. R. general maximum range of 12 to 18 months considered – Hong Kong case of R. v. Chiu distinguished on basis of higher culpability – culpability assessed primarily by reference to causation rather than tragic results – custodial sentences reduced from 30 months to 15 months on each of two dangerous driving causing death counts and from 18 months to 9 months on grievous bodily injury count, all concurrent – driving disqualification reduced from 7 years to 4 years – leave to appeal granted.
Legal issues: Whether the custodial sentences for dangerous driving causing death were manifestly excessive · Whether the seven-year driving disqualification was excessive
Outcome: Leave to appeal against sentence granted; custodial sentences and disqualification period reduced.
Cited by 8 cases
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CACC000023/1985
Coram: Roberts, C.J., Kempster, J.A. & Hunter, J. Date of Judgment: 19th March, 1985. ----------------- JUDGMENT ------------------ [Sentences for dangerous driving causing death] Roberts, C.J. - Preliminary 1. The applicant pleaded guilty to two counts of dangerous driving causing death and to one count of dangerous driving causing grievous bodily injury. He was sentenced to two and half years' imprisonment on each of the dangerous driving causing death counts and to one and a half years imprisonment on the other count. All sentences were ordered to run concurrently. He was also disqualified from driving for a period of seven years. 2. The applicant is aged 42. He had three previous convictions, for dishonesty, which we do not regard as relevant to the punishment which is proper in these cases. Facts of case 3. On 22nd July, 1984, the applicant was driving a public light bus at about 8 p.m. in Causeway Road in an easterly direction. He approached a road junction which was controlled by traffic lights, as they changed to red against him and the green indicator authorizing pedestrians to cross was shown. 4. The applicant, who was accepted as having approached the crossing at a reasonable speed, sought to apply his brakes, which failed. As a result of this, the public light bus entered the pedestrian crossing and knocked down three children, two of whom died from the injuries which they sustained, while the third suffered multiple injuries from which she has happing made a good recovery. Sentence 5. When passing sentence, the trial judge did so on the basis that the applicant had driven the vehicle well knowing that the brakes were defective. He said -
6. The rest of the judge's comments show that he accepted that there were no aggravating elements involved. He accepts that the applicant had shown a degree of remorse that he had done what he could to help and that his crossing of the red light was not due to inattentiveness but to the fact that his brakes were not operating at the time. 7. We have been referred to a number of cases, in which the appropriate sentence for the offence of dangerous driving causing death has been considered. In particular, we have received some assistance from Guilfoyle v. R.(1) . Lawton, L.J. delivering the judgment of the Court of Appeal, suggested that cases of dangerous driving causing death might fall into two broad categories, those in which the accident has arisen through momentary inattention or misjudgment and those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers or with a degree of recklessness. 8. It seems to us that this is a clear case where the applicant has driven in a manner which shows a selfish disregard for the safety of other road users, in that, as he himself accepted, he continued for some hours to drive the public light bus in the knowledge that the brakes were defective; thus accepting that there was a substantial risk that in an emergency he would be finable to control the vehicle in the proper manner. 9. Lord Justice Lawton commented -
10. This view can be said to be reinforced by the observations of Lord Lane, L.C.J. in Boswell v. R.(2) At page 1051 he comments -
11. It appears to us that this applicant saw the risk but, nevertheless decided to run it although he had seen it. 12. At page 1052, Lord Lane says-
This is in relation to cases where there were aggravating features involved. 13. Our attention was drawn also to the recent Hong Kong case of R. v. Chiu (3) in which a sentence of four years' imprisonment was imposed after a conviction for manslaughter, in circumstances which showed a far higher degree of` culpability than that displayed by this applicant. 14. The results which flowed from the risks which the applicant took were tragic in the extreme. Nevertheless, it would be unfair on the applicant not to consider his culpability, primarily, though not of course exclusively, in relation to the causation of the accident rather than by reference to the results which flowed from it. 15. In essence, what this applicant did was to drive a defective vehicle knowing that there was a risk but hoping that no emergency would arise. This shows a gross degree of disregard for the public's safety which must be reflected in a substantial custodial sentence. Nevertheless, we are satisfied that the sentence which was imposed was manifestly excessive, in view of the applicant's clear record as far as his driving is concerned, and of the absence of any aggravating factors other than those which flowed from the risk which he deliberately took. 16. It must be made clear to those who knowingly drive defective vehicles on the road that they stand in real danger of immediate and significant custodial sentences. 17. In this instance we feel that justice would be served by a reduction of the sentences of two and a half years' imprisonment on the first two counts to sentences of fifteen months' imprisonment on each and with a reduction of the sentence on the fifth count from eighteen months' to nine months'. All sentences should run concurrently. 18. We are also satisfied that the disqualification of seven years is excessive. The applicant is a professional driver who, apart from this unhappy day, had a clean record. No doubt he can be expected to return to that occupation when he is able to do so. For the same reasons as having impelled us to reduce the sentences of imprisonment, we would also reduce the disqualification from seven years to four. 19. In the result the application for leave to appeal against sentence is granted and the sentences which I have indicated are imposed in substitution for those imposed by the trial judge. (1) 57 Cr.App.R. 549. (2) [1984] 1 W.L.R. 1047. (3) Crim. App. 238/84. Representation: Mr. I. Payne (D.L.A.) for Appellant. Mr. I.G. Cross, Ag. Sen. Asst. Crown Prosecutor, for Respondent | ||||
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