The Queen v. Pang Kwok-poon

CACC000023/1985

Coram: Roberts, C.J., Kempster, J.A. & Hunter, J.

Date of Judgment: 19th March, 1985.

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JUDGMENT

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[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 -

"You had the control of the vehicle from approximately 2.30 in the afternoon until 11.30 at night, and from the report of the vehicle examiner, it is perfectly clear that you must have known that those brakes were defective. Notwithstanding that fact, you chose to drive the vehicle in the crowded parts of Hong Kong, exposing the public to the risk of injury, although hoping that nothing would happen. Tragically, three children of one family suffered injuries, two of them died."

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 -

"For those who have caused a fatal accident through a selfish disregard ...... a custodial sentence with a long period of disqualification may well be appropriate."

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 -

"It is clear that anyone who is guilty of causing death by reckless driving must fall into the more serious category as set out by Lawton, L.J. ...... To be guilty the defendant must have created an obvious and serious risk of injury to person or damage to property and must either have given no thought to the possibility of that obvious risk, or have seen the risk and nevertheless decided to run it, although he had seen it."

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-

"At present, the statistics seem to show that the general maximum term is about 12 to 18 months as imposed by the courts."

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