Read the full judgment text of CAAR 2/2009 & CAAR 4/2009 on BabelCite. This Court of Appeal judgment was delivered on 21 September 2009 before Ma CJHC, Hartmann JA & Saw J.
Criminal law – dangerous driving causing death – section 36(1) Road Traffic Ordinance, Cap. 374 – sentencing – review under section 81A Criminal Procedure Ordinance, Cap. 221 – pedestrian crossing – manifestly inadequate sentence – starting point – guilty plea discount – driving at excessive speed through pedestrian crossing where lights turned red – bus driving through red light at pedestrian crossing killing pedestrian – whether older Magistrates' Court authorities remain persuasive after Poon Wing Kay – aggravating features – conscious disregard of traffic lights – deterrent effect – In CAAR 2/2009, the Court of Appeal (Ma CJHC, Hartmann JA and Saw J) granted the Secretary for Justice's application for review of the 12-month sentence imposed on Lam Siu Tong, who had pleaded guilty to dangerous driving causing death after driving at an estimated 74 km/hr in a 50 km/hr zone through a pedestrian crossing on Castle Peak Road, killing a 27-year-old pedestrian; the court held the correct starting point should have been 24 months (rather than 18), yielding 16 months after the one-third discount, but the original 12-month sentence was maintained in the exercise of discretion because the respondent was due for release within two weeks of the hearing – In CAAR 4/2009, the court granted the review of the 20-month sentence imposed on Wong Ton Fan, who was convicted after trial of dangerous driving causing death after driving a double-decker bus in the middle lane of Cheung Sha Wan Road through a red light at a pedestrian crossing, killing a 54-year-old pedestrian and seriously injuring another; the correct starting point was held to be 36 months, and a substituted sentence of 32 months' imprisonment was imposed, with the 2½-year driving disqualification undisturbed – The court reaffirmed that causing death by dangerous driving at a pedestrian crossing is a serious aggravating feature, conscious disregard of traffic lights places the case in the most serious category, and that Poon Wing Kay [2007] 1 HKLRD 660 and Au Yeung Kwok Kin (CACC 21/2008) are the guiding authorities, while older Magistrates' Court decisions such as Mok King Yin, Park Myung Hwa, Sin Kit Sang and Tam Kwok Choi provide limited assistance – CAAR 2/2009: application granted but original 12-month sentence and 3-year disqualification maintained; CAAR 4/2009: application granted, 32 months' imprisonment substituted for 20 months, 2½-year disqualification undisturbed.
Legal issues: Whether the sentence in CAAR 2/2009 for dangerous driving causing death at a pedestrian crossing was manifestly inadequate · Whether the sentence in CAAR 4/2009 for dangerous driving causing death at a pedestrian crossing was manifestly inadequate · Whether dangerous driving causing death at a pedestrian crossing constitutes a serious aggravating feature for sentencing
Outcome: In CAAR 2/2009, the application for review of sentence was granted but the original sentence of 12 months' imprisonment and 3-year driving disqualification were maintained. In CAAR 4/2009, the application for review of sentence was granted and a sentence of 32 months' imprisonment was substituted in place of the original 20 months; the 2½-year driving disqualification was left undisturbed.
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