HKSAR v. Park Myung Hwa

HCMA000156/2004

HCMA 156/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 156 OF 2004

(ON APPEAL FROM ESCC 2077/2003)

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Coram: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 29 July 2004

Date of Judgment: 10 August 2004

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J U D G M E N T

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1.This Appellant, a woman in her late 30s of good character, stood trial before Eddie Yip, Esq. in the Magistrate's Court at Eastern on a charge of dangerous driving causing death. On 30 January 2004 the Magistrate convicted her and, after hearing mitigation put forward on her behalf, sentenced her to three months' imprisonment and disqualified her from driving for three years. She was granted bail pending appeal, and she now appeals against both conviction and sentence.

2.The accident resulting in the charge took place on the afternoon of 15 January 2003 at the junction of Hing Fat Street and Victoria Park Road. A private car driven by the Appellant northbound along Hing Fat Street and a taxi driven eastbound along Victoria Park Road came into collision at that junction. As a result of this collision, the Appellant's car swung onto a safety island further to the north along Hing Fat Street and struck three persons standing on that safety island, injuring one of them and killing two of them.

3.It was the prosecution's case that the collision between the Appellant's car and the taxi, which collision resulted in the Appellant's car swinging onto the safety island killing two of the persons standing on it, was caused by dangerous driving on the Appellant's part consisting of her deliberately driving into the junction when the traffic lights controlling traffic there were red against her. The Magistrate found this proved beyond reasonable doubt. He said (in paragraph 49 of his Statement of Findings) that "the irresistible inference is that the defendant's private car deliberately jumped the red light at D". As one sees from the sketch which the Magistrate appended to his Statement of Findings, the traffic lights at D are those governing the junction at which the Appellant's car and the taxi collided.

Conviction

4.Two perfected grounds of appeal against conviction have been filed on behalf of the Appellant. Ground 1 is that the Magistrate erred in finding that the irresistible inference was that the Appellant "deliberately jumped the red light". Ground 2 is that the Appellant's conviction is unsafe and unsatisfactory. All the details appear in Ground 1 under which it is complained that in arriving at the finding complained of the Magistrate "failed to take into account and/or properly evaluate" certain evidence, that he "wrongly relied upon" certain evidence and that he "wrongly rejected" certain evidence.

5.The evidence which it is said on the Appellant's behalf that the Magistrate "failed to take into account and/or properly evaluate" is particularised as follows:

"	(a)	the evidence of PW7 (a bus driver) who stated that he had driven through the road junction in question on numerous occasions in the course of his employment and that he found the road junction, when approached from Hing Fat Street, to be a confusing one;
	(b)	the evidence of the Appellant that she had not driven through this road junction before the accident;
	(c)	the evidence of PW8 (a traffic engineer employed by the Transport Department) to the effect that a study of this road junction had been conducted by the Transport Department prior to the accident because of the number of accidents that had occurred there. The study revealed that it was common for motorists to "jump the lights" and, as a result, it was decided to enlarge the size of the red and yellow traffic lights at positions E1 and E2 to enable motorists to better see those lights and to raise safety levels. It was also decided to provide an additional two second delay to the traffic lights governing the direction in which PW1 was travelling and to relocate a power pole;
	(d)	the further evidence of PW8 that the improvements outlined at (c) above were recommended for safety reasons before the accident but none of them had been implemented at the time of the accident."

6.The evidence which it is said on the Appellant's behalf that the Magistrate "wrongly relied upon" is particularised as follows:

"	(a)	the police photographs of the road junction in order to disbelieve the evidence of the Appellant that she was unaware of the existence of the two separate yellow boxes. Those photographs provided an elevated view of the road junction and did not reflect what the driver of a motor vehicle would have seen;
	(b)	his own calculations of time, distance and speed, in isolation from the other evidence, namely that of PW1, PW3 and the Defence expert. The magistrate's calculations ignored the expert's evidence and in any event should have led him to conclude that the Defendant was travelling more slowly and/or that PW1 in fact "jumped" his light earlier than he claimed. The magistrate's own calculations of time, distance and speed were not canvassed either with counsel or witnesses at the trial."

7.The evidence which it is said on the Appellant's behalf that the Magistrate "wrongly rejected" is particularised as follows:

"	(a)	the appellant's evidence that when driving through the road junction she believed there was only one yellow box and not two separate boxes. It was the evidence of Dr. Lim (about which the learned Magistrate made no finding) that the road markings in question, could easily be confused as being one large yellow box. Furthermore, the rejection of the Appellant's evidence on this issue was found by the learned Magistrate to "reflect upon the credibility of her evidence;
	(b)	the evidence of the defence expert witness, Dr. Eric Lim, to the effect that the Appellant may have been confused at the time by the layout of the road and the density of the traffic lights, as being "unfounded opinion". In making such finding the Magistrate relied upon the Appellant's evidence to the effect that she was not confused. The learned Magistrate failed to appreciate that Dr. Eric Lim's evidence was to the effect that the Appellant may have been confused but did not realise it at the time of the accident. The Appellant's evidence was entirely consistent with such opinion;
	(c)	the evidence of Dr. Lim as to his estimate of the speed of both vehicles as being unreliable."

8.The main thrust of the submissions made on the Appellant's behalf in her appeal against conviction is that the Magistrate erred in finding that she had "deliberately jumped the red light". It is submitted that he erred for the reasons set out in Ground 1. These are that he failed to take into account and/or evaluate evidence which he should have taken into account and evaluated; that he omitted to take into account evidence which he should have taken into account; and that he wrongly rejected evidence which he should have accepted. It is submitted that considerable force is provided to the foregoing submissions by subsection (7) of the section under which the Appellant was charged, namely s. 36 of the Road Traffic Ordinance, Cap. 374.

9.Subsection (4) provides that a person is to be regarded as driving dangerously if:

"	(a)	the way he drives falls far below what would be expected of a competent and careful driver; and
	(b)	it would be obvious to a competent and careful driver that driving in that way would be dangerous."

Subsection (7) provides that in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including:

"	(a)	the nature, condition and use of the road concerned at the material time;
	(b)	the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and
	(c)	the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused."

10.At the trial, the Appellant tendered a plea of guilty to careless driving, which plea the prosecution did not accept. In this appeal, the Appellant's leading counsel, Mr Gary Plowman SC, said that the plea of guilty to careless driving tendered at the trial still stands. The defence case, Mr Plowman said, is that this was careless driving and not dangerous driving. He invited me to quash the conviction for dangerous driving, observing that it is open to me to substitute a conviction for careless driving.

11.When reading a Magistrate's Statement of Findings, the High Court will always subject it to the careful scrutiny which an appellant is entitled to expect having regard to what is at stake. But this does not mean that the Statement of Findings will be given an unrealistic reading. It will be given a fair reading. Giving this Statement of Findings a fair reading, I am unable to attribute to the Magistrate's approach to the evidence any of the errors of omission or commission complained of on the Appellant's behalf.

12.Having seen and heard all the witnesses, the Magistrate was entitled to accept the evidence which he accepted and reject the evidence which he rejected. I see nothing which would justify my holding that he was not so entitled. On the evidence which he accepted, he was entitled to feel sure, as he did, that the Appellant had entered the junction by driving through traffic lights showing red against her. In the circumstances, he was entitled to take the view, as he did, that the only reasonable inference is that she had done so deliberately.

13.It is plain that doing that is to drive in a way that falls far below what would be expected of a competent and careful driver. It is plain that it would be obvious to such a driver that driving in that way would be dangerous. All the circumstances of the case, including the particular matters which s. 36(7) made it necessary for the Magistrate to have regard to, supported these conclusions. I see nothing to justify doubting that the Magistrate had due regard to all the circumstances of the case including those matters.

14.Having given careful consideration to all the arguments skilfully presented on the Appellant's behalf, I find no basis for disturbing this conviction. Accordingly the appeal against conviction is dismissed.

Sentence

15.The Appellant's Notice of Appeal against Sentence in Form 102 contains the general ground that her sentence is too severe. No perfected ground of appeal against sentence has been filed to augment that, but Mr Toby Jenkyn-Jones has advanced oral arguments in support of the Appellant's appeal against sentence. In the course of doing so Mr Jenkyn-Jones invited me to have regard to what he urged when addressing the Magistrate in mitigation. He asked me to study the transcript of that, and I have done so with care. I have of course likewise carefully considered everything urged before me by Mr Jenkyn-Jones in oral argument.

16.In his Reasons for Sentence, the Magistrate begins by dealing with the circumstances of the accident. He then summarizes the Appellant's personal circumstances, saying this:

"	3.	the defendant is a Korean lady aged 37. She has a son aged 22 months. She last worked as an interior designer but lost her job due to her decision to spend more time looking after her son. She has the sole charge of her son. She has a boyfriend. Because of the present case, they have to reschedule their marriage. The defendant has been too shocked to drive after the incident. She has consulted a psychiatrist, who makes the diagnosis that she is suffering from reactive depression. She is recommended for medication and therapy for at least 3 to 6 months.
	4.	She has become a local resident since 1991. She has no criminal or traffic conviction."

17.The Magistrate then deals with things urged in mitigation, his response to the same and how he arrived at the sentence which he imposed. As to all those matters he said this:

"	5.	The defence argue that she was a victim of the road design. The Transport Department had conducted a prior survey on motorists using the traffic light signals in question and as a result had planned to implement the change. However, the change took place only after the present incident. I do not accept this as an effective mitigating factor because I find as a fact, in accordance with the defendant's own evidence on this aspect, that she was not confused by the traffic light signals at that time. It is not open to defence counsel to contend that she did not know she was confused at that time.
	6.	Defence counsel also raises the ground of the defendant's error of judgment in mistaking that there was just one yellow box instead of two. I reject this line of mitigation because, as in my judgment already delivered in open court, I have found she deliberately jumped the red light.
	7.	There are no sentencing tariffs. The statutory maximum for a first offender is a fine of $25,000 and 2 years' imprisonment. I regard the present case as a serious case for which only a term of imprisonment can reflect the gravity and serve as a general deterrent to motorists deliberately jumping the red light at a multi-lane junction with a lot of vehicles and pedestrians. With the defendant's clear record, I take 3 months' imprisonment as the starting point. There are no effective mitigating factors. Nor are there circumstances so exceptional as to warrant a suspended sentence. I order the term to be served immediately.
	8.	The defence do not seek to put forward a "special reason" for not making a disqualification order. They ask this Court to impose the shortest period permissible. The minimum period as prescribed by law is 2 years. As the present case is a serious case, I order the defendant be disqualified for 3 years from driving all classes of vehicles."

18.In R v Boswell [1983] RTR 315 at p. 320H, Lord Lane CJ said that it would be an aggravating factor if "several people have been killed as a result of the particular incident of reckless driving". On principle, the law has regard to the consequences of conduct when it comes to the question of what offence has been committed and what penalty is appropriate to the offence which has been committed. Boswell was a case of causing death by reckless driving and Lord Lane CJ spoke of the death of "several" people. But the fact that more than one person died must be an aggravating factor whether it was two persons or more than two persons who died and whether their deaths was caused by reckless driving or dangerous driving. This must be so if sentencing is to accord with principle and be in harmony with how the general public reasonably sees these things. As for authority, there is the highly persuasive authority of what Lord Woolf CJ said in R v Cooksley [2003] 3 All ER 40 at p. 49 c-d:

" Even where there is no reason to suggest that the defendant is knowingly putting more than one person at risk, the fact that the consequences of dangerous driving are particularly serious, for example, involving multiple deaths is a relevant factor as to the length of sentence. That is the view that will be taken by the public. However, we are certainly not suggesting that the sentence should be multiplied according to the number of persons who sadly lose their life. It is still necessary to regard the offender's culpability in relation to the driving as the dominant component in the sentencing exercise. While the sentence is increased to reflect more than one death the sentence must remain proportionate to the nature of an offence which does not involve any intent to injure."

19.Among the cases cited by Mr Jenkyn-Jones is AG v Chung Yim Chow [1986] HKLR 109 where McMullin VP said this at p. 113F-H:

" We think that the decision in Boswell establishes a valuable principle which ought equally to be applied in Hong Kong. Where recklessness has been proved in the sense defined by Lawton, L.J. in Guilfoyle and adopted by Lord Lane in Boswell, and where the conduct of the defendant cannot be described as a "one off" momentary reckless error of judgment, or momentary inattention in failing to notice the presence of pedestrian (the first two or Lord Lane's points of mitigation), or something of that kind, and where, in addition, there is any feature of aggravation in the conduct of the defendant a custodial sentence will normally be required. The gravity of the aggravating feature or features will dictate the appropriate length of sentence."

20.Mr Jenkyn-Jones stressed the reference to conduct in McMullin VP's phase "any feature of aggravation in the conduct of the defendant". I do not read that as excluding taking the consequences of the defendant 's conduct into account when deciding on sentence.

21.It is a distressing fact that the Appellant's young son would be adversely affected if she is imprisoned. The approach of the courts to situations of this kind was explained by Stock JA in HKSAR v Chan Kin Chung [2002] 4 HKC 314 at pp. 326G-327A where he said this:

"A balanced approach to sentencing is one that has proper regard to essential sentencing principle and policy, which includes the principle that the adverse effect of imprisonment upon an offender's family will not normally be taken into account; and is one that has full regard to the seriousness of the crime, although not ignoring credible evidence that may justify a merciful sentence. There can be no definitive or exhaustive list of the type of circumstance in which release or earlier release of a single parent, or of one of two imprisoned parents, will be appropriate by reason of the needs of the young child or children. We say, however, that those circumstances will arise only exceptionally and that they already embrace considerations of compassion and mercy such that there is no need for recourse to the exercise of some further residual merciful discretion."

22.I have sympathy not only for the victims and their families in their tragedy but also for the Appellant and her family in their plight. But my duty, as I see it, is to recognize that, despite everything urged on the Appellant's behalf, the Magistrate was entitled, in the exercise of his duty, to sentence the Appellant as he did. It is true, as R v Rodenhurst [1980] RTR 333 shows, that an immediate custodial sentence is by no means inevitable even where more than one death results from reckless or dangerous driving. But the present case is one in which the Magistrate found, and was entitled to find, that the Appellant had deliberately driven through a red light. That is serious.

23.For the reasons which I have given, the appeal against sentence is also dismissed.

Representation:

Mr Gary Plowman, SC and Mr Toby Jenkyn-Jones (instructed by Messrs W K To & Co) for the Appellant

Mr Gavin Shiu and Ms Denise Chan (of the Department of Justice) for the Respondent