Cheung Kin-man v. The Queen

CACC000720/1981

Dangerous driving causing death - gross negligence - imprisonment not wrong in principle.

Coram: Li, Silke, JJ.A. & Bewley, J.

Date of Judgment: 6th November, 1981

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JUDGMENT

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Bewley, J.:

1. This is an appeal against sentence, which has been referred to us by Cons, J.A., before whom the appeal first came. The appellant pleaded guilty, on 15th July this year in Kwun Tong Magistrates Court, to dangerous driving causing death, in respect of an accident on 8th December, 1980.

2. The appellant was driving his private car in Tak Tin Street, which adjoins Lam Tin Estate in Kwun Tong and is subject to a 30 miles an hour limit. It was 6.40 p.m. The road was straight, but there was a downslope in the direction in which he was driving.

3. The appellant began to overtake a bus at a speed of something over 30 miles per hour. His exact speed is not known, but it was not suggested that it was much in excess of the legal limit. There were 3 young girls crossing the road from right to left in single file. When she saw the appellant's car, the third girl stopped in the middle of the road. The other 2 continued to cross. At this point the bus was some 35 metres away. As he overtook the bus, the appellant pulled sharply to his left and struck the deceased, who was the second girl to cross the road, a yard or two short of the pavement. The first girl had by then already reached the safety of the pavement.

4. In mitigation it was said that the appellant saw the deceased when he was only a few feet away. He was sentenced to 3 months imprisonment and disqualified from holding or obtaining a driving licence for 3 years. After only 2 days in prison, he successfully applied for bail pending appeal.

5. The appellant is 23 years of age and single. He was a car salesman at the time of the accident. He has held a driving licence for 3 years. He had one previous conviction for disobeying a traffic sign. In the opinion of Cons, J.A., a sentence of 1 month immediate imprisonment and a rather shorter period of disqualification would have been appropriate. However, counsel cited a number of cases of dangerous driving and driving whilst disqualified, which seem to show a tendency in recent years not to impose immediate custodial sentences in traffic cases. It is for this reason that the learned judge has referred the appeal to this Court.

6. Counsel for the appellant submits that the sentence is wrong in principle and inconsistent with recent decisions. In fact, there have been only 2 appeals from magistrates in respect of this offence in the past 3 years.

7. In CHUNG Man-kin v. R.⁽¹⁾ the sentence of 3 months imprisonment was reduced to a fine of $1,000 and 12 months disqualification. In Attorney-General v. KWOK Ka-tak⁽²⁾ a fine of $1,000 was left unaltered, but the respondent was additionally disqualified for 12 months. The question of imprisonment does not seem to have been canvassed.

8. Counsel for the Crown has very helpfully provided us with some statistics. It appears that, in the years 1978-1980, there were 37 cases of this offence in the Magistrates Court, in only 3 of which immediate custodial sentences were passed. Counsel has also handed up some local newspaper cuttings, which show that immediate sentences of 6 weeks imprisonment have recently been passed in 2 such cases.

9. Counsel for the Crown has also referred us to an English case of reckless driving causing death: Matthews v. R.⁽³⁾. The facts were similar to the present case. The sentence of 6 months imprison-ment, plus 5 years disqualification, was reduced to 3 months imprison-ment and 3 years disqualification.

10. We feel that it is not wrong in principle to impose prison sentences in appropriate cases of dangerous driving causing death. We also bear in mind the Road Traffic Bill, which will soon become law, to which counsel has referred us, in which the offence of reckless driving causing death will carry a maximum sentence, on indictment, of a $50,000 fine and 7 years imprisonment. The maximum sentence, on indictment. for the present offence is $5,000 and 5 years imprison-ment; on summary conviction $2,000 and 12 months. However, we endorse the remarks of Briggs. C.J. in CHUNG Man-kin v. R.⁽¹⁾. that it is only in cases of gross negligence, or deliberately dangerous driving, that an immediate prison sentence is appropriate.

11. We feel that this was a case of gross negligence. The appellant should not have overtaken the bus when the girls were clearly visible in the road ahead. When confronted with the girl in the middle of the road, he carried out the fatal manoeuvre.

12. However, we think 3 months is too long and that the proper sentence is 1 month imprisonment. In cases of this kind, just to hear the prison doors clang behind one, has a salutary effect. As an act of mercy, bearing in mind that the appellant has had to appear in 3 different courts, has had the matter hanging over him for some 4 months and has also incurred substantial legal expenses, we see fit to suspend the sentence for 2 years. However, we stress that these are the only reasons for doing so and that an immediate prison sentence for offences of this gravity is the proper penalty.

13. We think the period of disqualification is also too long and reduce it to 2 years. To this extent the appeal is allowed.

Representation:

A. Wong (James C. M. Tsang & Co.) for appellant.

B. Moorfoot c.c. for respondent

(1) Appeal No. 937 of 1978

(2) Application for Review No. 5 of 1978

(3) [1981] Criminal Law Review 789