Secretary for Justice v. Lam Siu Tong

CAAR 2/2009 & CAAR 4/2009

CAAR 2/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 2 OF 2009

(ON APPEAL FROM DCCC NO. 820 OF 2008)

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BETWEEN

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CAAR 4/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2009

(ON APPEAL FROM DCCC NO. 774 OF 2008)

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BETWEEN

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Before : Hon Ma CJHC, Hartmann JA & Saw J in Court

Date of Hearing : 4 September 2009

Date of Judgment : 4 September 2009

Date of Handing Down Reasons for Judgment : 21 September 2009

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REASONS FOR JUDGMENT

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Hon Ma CJHC (giving the judgment of the Court) :

1.Before the Court were two applications for review of sentence brought by the Secretary for Justice under section 81A of the Criminal Procedure Ordinance, Cap. 221. At the conclusion of submissions, we granted the applications for review and made the following further orders : ‑

(1)  In CAAR 2/2009, despite the application being granted, the original sentence of imprisonment and period of disqualification from driving were maintained.

(2)  In CAAR 4/2009, there was substituted a term of 32 months' imprisonment in place of the term of 20 months' imprisonment imposed by the District Court.  The original period of disqualification from driving that was imposed, was left undisturbed.

We also indicated that we would hand down the reasons for judgment in due course.

2.Both applications for review involved sentences of imprisonment and periods of disqualification imposed by the District Court in relation to convictions (one following a plea, the other after trial) for dangerous driving causing death (under section 36(1) of the Road Traffic Ordinance, Cap. 374). They arose under separate incidents but share the common feature of having occurred at pedestrian crossings. They also shared this feature : both took place prior to the increase (which took place on 4 July 2009) of the maximum term of imprisonment for the offence of dangerous driving causing death (from 5 years' imprisonment to 10 years' imprisonment on indictment). The question for this Court was whether the sentences passed were manifestly inadequate.

3.Before dealing with this question and reviewing some of the authorities in relation to this offence, we should first outline the facts of each case.

CAAR 2/2009 : Facts

4.The Respondent in this Review, Lam Siu Tong (“Lam”), pleaded guilty before H H Judge D'Almada Remedios on 21 January 2009 to the offence of dangerous driving causing death. The same day, he was sentenced to a term of imprisonment of 12 months and was disqualified from driving for a period of 3 years. The term of imprisonment reflected a starting point of 18 months, reduced by one‑third on account of the plea of guilty.

5.The facts were these : ‑

(1)  At about 7:15 am on 8 March 2008, Lam was driving a private car on Castle Peak Road (south bound) in the New Territories.  On that road, near Lingnan University before reaching Tuen Kwai Road, there is a pedestrian crossing, governed by traffic lights for both vehicles and pedestrians using the crossing.  The speed limit was 50 km/hr.

(2)  That part of Castle Peak Road (which is a 2‑lane carriageway) near the crossing was straight and unobstructed.  At that time, the weather was fine and the road condition was dry.  Conditions for driving were therefore good.

(3)  Lam approached the pedestrian crossing (on the outer lane) driving at high speed.  The driver of a vehicle on the inner lane (MP7314) estimated that Lam's vehicle was travelling at between 100 and 120 km/hr; the passenger in this car estimated the speed at 100 km/hr.  A pedestrian estimated the speed at between 60 and 80 km/hr.

(4)  According to Lam, he was travelling at 70 km/hr.  As he approached, he said that suddenly a person ran in front of his car at the crossing.  This was the deceased, Lam Yuk Yung (she was aged 27).  She was thrown high in the air and sustained multiple injuries from which she died.

(5)  The driver of MP7314 said that the lights (governing vehicular traffic) turned to amber as Lam approached the crossing but had turned to red when the collision occurred.  This version of events was accepted by the court below.

(6)  There were skid marks (measuring 32.8 metres on the nearside and 36.4 metres on the off) left by Lam's vehicle.  From the photographs provided to us, these marks only began from the crossing itself.  From this, it can be inferred that Lam only applied the brakes at the crossing (most probably at or just before the point of collision) and also that he must have braked hard.  This is in turn indicative of two facts : that Lam approached the crossing at high speed without slowing down and that the deceased most likely ran out at the crossing (this was presumably the point when Lam applied the brakes).

(7)  From what the driver of MP7314 said about the lights being amber as Lam approached the crossing and turning red at the point of collision, and given the fact that there was a short time gap between the lights governing vehicular traffic turning red and the pedestrian lights turning green, we have to assume that the deceased ran out at the crossing when the pedestrian lights were still red.

(8)  In order to arrive at a conclusion as to speed, police officers conducted an accident reconstruction, and estimated that Lam's vehicle was travelling at about 82 km/hr (with a margin of error of +/‑8).  We have therefore assumed that the speed at which Lam's vehicle was travelling was 74 km/hr.  This accords with his own estimation as well as that of one of the pedestrians who witnessed the accident.  As stated earlier, the governing speed limit was 50 km/hr.

(9)  It is not suggested that Lam was unfamiliar with this stretch of road.  On the contrary, the judge said that Lam used this road regularly.

6.Lam's record of previous convictions was described by the judge as not “particularly good” : ‑ 3 convictions for careless driving, 1 for speeding, 1 for crossing a double line, 1 for driving without insurance and 1 for not displaying a valid licence. All resulted in fines being imposed.

CAAR 4/2009 : Facts

7.On 19 January 2009, the Respondent, Wong Ton Fan (“Wong”) was convicted after trial before H H Judge Mary Yuen. On 2 February 2009, Judge Yuen sentenced Wong to 20 months' imprisonment and disqualified him from driving for a period of 2½ years. In relation to the period of disqualification, we should add here that the judge took into account the fact that Wong surrendered his licence as a condition of bail. In all, therefore, the period of disqualification was effectively 40 months.

8.The facts relevant to this case were as follows : ‑

(1)  At about 12:40 pm on 30 April 2008, Wong was driving a double‑decker bus in the middle lane of Cheung Sha Wan Road (northeast bound) near the junction with Cheung Lai Street, when the bus collided with a 54‑year old person who was crossing the road at a pedestrian crossing.  Chong Kai Man (“the deceased”) died as a result of the injuries sustained in the collision.

(2)  That stretch of Cheung Sha Wan Road consisted of 7 lanes : 3 lanes in a northeast direction, 3 in the opposite direction and 1 inner lane (towards the northeast) separated from the 3 lanes by a barrier (this lane was for the convenience of vehicles dropping off passengers, loading and unloading).  On the day in question, the road conditions were good and the weather was fine.

(3)  That part of Cheung Sha Wan Road is surrounded by office buildings and factories.  From the photographs provided to us, it can be described as a busy area, and all the more so during lunch time.  We add that the day in question was a Wednesday.

(4)  The pedestrian crossing where the collision took place was governed by traffic lights, both for vehicular traffic as well as for pedestrians.  In the middle of the crossing was a traffic safety island.  The crossing was marked by yellow zebra stripes and there was a continuous white line just in front where vehicles could stop.

(5)  The lights governing pedestrian traffic at the crossing alternated between red, green and flashing green.  The lights governing vehicles in turn alternated between red, amber and green.  The sequence of change for these lights was that there was a 2‑second gap between the lights (for vehicles) turning red and the corresponding lights (for pedestrians) turning green.  The duration of amber lights for vehicles before turning red was three seconds.  Accordingly, there was a 5‑second gap between the traffic lights for vehicles turning amber and the pedestrian lights turning green.

(6)  Just prior to the accident, a bus on the inner lane had stopped in front of the pedestrian crossing.  A dump truck on the outer lane had also stopped.  It is clear that they stopped because the lights at the pedestrian crossing were on red.

(7)  Wong, however, neither stopped nor slowed down (it will be recalled that the bus he was driving was in the middle lane).  As he approached the junction, he was travelling at 30 km/hr.

(8)  The prosecution called witnesses who were pedestrians at the time.  The judge accepted their testimony.  They testified to the fact that as they crossed the road, the lights facing them were on green.  One witness told of having blacked out after taking 4 or 5 steps.  When he regained consciousness, he was at the roadside with his mouth full of blood (he lost 3 front teeth).  When the bus hit the deceased, he had in turn collided with this witness.  Other witnesses at the crossing told of having to turn back to the safety island when they suddenly saw a bus (driven by Wong) emerge from the middle lane.

(9)  The route taken by the bus was one with which Wong was familiar.  He had driven this route for 3 years prior to the accident and on the day in question, he had already made 2 trips on this route prior to the fateful one.

9.An important question for the purpose of sentencing in the court below was whether Wong had actually seen that the lights were on red at the time he approached the pedestrian crossing and hit the deceased. Wong's evidence at trial was inconsistent. In an earlier statement provided by him, he had said that the lights were on green in his favour (thereby suggesting that he was fully aware of the colour of the lights). For present purposes, however, we have assumed that Wong did not actually see the lights were on red against him. It may be that his view was obscured by the bus and dump truck on the inner and outer lanes. Nevertheless, he was without doubt reckless : from the fact alone of the 2 stationary vehicles on either side, Wong ought to have realized that the lights were on red. On a fair reading of the Reasons for Verdict and Reasons for Sentence, it is clear that the judge was of this view as well. In the Reasons for Verdict, the judge said this (as translated) : -

“The inference drawn beyond reasonable doubt is that the defendant knew full well that he had to stop at the white line [the continuous white line earlier referred to] but he continued to proceed forward, recklessly disregarding the pedestrians.”

10.As for Wong's record of previous convictions, he had only one : a fixed penalty for ignoring red lights while driving a bus (coincidentally on the same route). The judge did not take this into account in sentencing. The extent of which fixed penalty records should be taken into account when sentencing is not a matter that is necessary to determine in the present case. For present purposes, given the absence of detailed facts going to the previous offence and also that it was an isolated occasion, we did not think it appropriate to take the Respondent's previous record into account in arriving at the appropriate starting point.

The principles

11.The maximum term of imprisonment that could be imposed on the Respondents in both Reviews (both having been charged on indictment) was 5 years. As mentioned earlier, the maximum has, since 4 July 2009, been increased to 10 years for convictions on indictment.

12.The courts have, in relation to the offence of death caused by dangerous driving, been guided by the decision of this Court in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.   We draw particular attention to the passage at 667H‑668G (paragraph 10) : ‑

“(1)  In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly: at p. 45J (para.11).  This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.

(2)  Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: at p.46A (para.11).  The impact on people's lives ought to be taken into account when sentencing.

(3)  It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving: at p.46C‑E (para.11).  A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim.  The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.

(4)  While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  In assessing the overall seriousness of a crime, culpability is often the dominant factor: at p.47B (para.14).  It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence.  Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.  In some cases, the fact that only some aggravating factors exist, but not others (such as in the present case), may still bring the case into a very serious category.

(5)  One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians) or with a degree of recklessness: at p.46F‑D (para.12).”

13.We wish to make the following additional observations : ‑

(1)  Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused.  The court is also usually informed of the deep remorse that is expressed.  The present cases provided no exception.

(2)  And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided.  Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine.  There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it.  As Yeung JA remarked in 香港特別行政區訴歐陽國堅 (HKSAR v Au Yeung Kwok Kin),unreported, CACC 21/2008, 25 August 2008, the courts will not show leniency to any driver who has endangered the lives and safety of other road users.

(3)  In these circumstances, good character and remorse may count very little.  These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided.  The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years' imprisonment for convictions on indictment (see paragraph 2 above).

(4)  The court must therefore be astute to bear in mind the above considerations when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown.  This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence.  Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.

14.Since Poon Wing Kay, there have been a number of other cases which have followed it, among them the decisions of this Court in律政司司長訴房濟民(Secretary for Justice v Fong Chai Man) [2008] 3 HKLRD 493 and律政司司長訴任振強 (Secretary for Justice v Yam Chun Keung),unreported, CAAR 2/2008, 25 September 2008. We have already referred to the decision in Au Yeung Kwok Kin.

15.We note that a number of older decisions on sentencing for dangerous driving causing death (decided before the decision in Poon Wing Kay) continue to be cited to the courts : for example, HKSAR v Mok King Yin [2002] 2 HKLRD 76, HKSAR v Park Myung Hwa [2004] 3 HKC 564 and HKSAR v Sin Kit Sang [2006] 4 HKC 472. We take this opportunity to state that these cases provide little help in terms of the appropriate level of sentence that should be imposed for this offence. Quite apart from the fact that they pre‑date Poon Wing Kay and subsequent decisions of this Court, they all involve cases dealt with in the Magistrates' Court. We are in the present application for review involved cases from the District Court. We also venture to suggest that on the facts of those cases just referred to, it is likely that they would now be brought at least in the District Court rather than the Magistrates' Court, and further, that the level of sentences imposed would be considerably higher.

16.Another case often referred to is HKSAR v Tam Kwok Choi, unreported, HCMA 700/2008, 5 November 2008. In that case, the accused's car failed to stop at a junction, instead travelling onto a main road and thereby colliding with a vehicle. Two deaths resulted. The magistrate took as the starting point the maximum term of 24 months, reducing it by one‑third to reflect the guilty plea. On appeal to the Court of First Instance, Bokhary J took a starting point of 12 months and reduced the sentence to 8 months (on account of the plea of guilty). This was again a case that emanated from the Magistrates' Court, albeit it was after Poon Wing Kay was decided (Poon Wing Kay was referred to in the judgment). In arriving at the sentence of 8 months, the court took into account the levels of sentence imposed in Mok King Yin, Park Myung Hwa and Sin Kit Sang. For the reasons expressed earlier, these cases must now be viewed as providing limited assistance. Accordingly, Tam Kwok Choi should now also be regarded as providing limited assistance to a sentencing court. Again, I daresay that on the facts of that case, proceedings would now have been brought in the District Court.

17.Au Yeung Kwok Kin provides a useful guide in the present Reviews, particularly in relation to CAAR 4/2009. In that case (where the relevant proceedings were in the District Court), the accused (who was driving a public light bus) went through a set of traffic lights on red and collided with a cyclist, killing him. Like the present case, it is not entirely clear whether the accused actually knew that the lights were on red (even though he testified to the effect that the lights were on amber). The judge sentenced the accused to 3 years' imprisonment. This sentence was upheld by the Court of Appeal. It is to be noted that in his decision, Tang VP expressly stated that cases such as Mok King Yin, Park Myung Hwa and Sin Kit Sang were, in the light of Poon Wing Kay, no longer persuasive, and the learned Vice President also remarked that the sentences passed in those case were too lenient. Au Yeung Kwok Kin was not referred to the court in Tam Kwok Choi.

18.With the above in mind, we now deal with the appropriate sentences in the 2 Reviews before us.

The appropriate sentences in the 2 Reviews

CAAR 2/2009

19.At the outset of this judgment, we highlighted one feature common to both Reviews, namely, that the accidents took place at pedestrian crossings. It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious : it is highly likely that people will be crossing the road there, whatever the time of day or night. Accordingly, if motorists approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur. And where a collision takes place, fatalities are common as we have seen in the Reviews before us.

20.Thus, we are of the view that where the offence of dangerous driving causing death is established and this involves the running over of persons at pedestrian crossings, then, for the purposes of sentencing, it would be a serious aggravating feature that the accident has occurred in such a location. The degree of seriousness will of course depend on the precise circumstances. For example, a conscious disregard for traffic lights will likely put the case into the most serious category.

21.In the case of the Respondent in CAAR 2/2009, we were of the view that the sentence of 12 months passed by the judge was manifestly inadequate. The learned judge took a starting point of 18 months. We are of the view that the correct starting point was 24 months : ‑

(1)  The judge was of the overall view that the standard of driving displayed by Lam was “blatantly irresponsible”.  We agree with this assessment :

(a)  He approached the pedestrian crossing at a speed well beyond the speed limit of 50 km/hr (we have assumed a speed of 74 km/hr).

(b)  There was no intention on his part to slow down as he approached the crossing.  Although we accept that as he approached the crossing, the lights facing him were on amber (rather than red), there was a 3‑second duration of the amber light that should have alerted him to slow down (at 74 km/hr, 3 seconds translate to a distance of 61.6 metres).  By the time, the collision took place, the lights had already turned to red.

(c)  Lam took an unnecessary and wholly avoidable risk by doing what he did, with tragic consequences.

(2)  Lam's previous record, as the judge remarked, was not “particularly good”.

(3)  Although the learned judge took into account all relevant factors and previous case authorities (including Poon Wing Kay and Au Yeung Kwok Kin), we are of the view that the fact that the accident took place at a pedestrian crossing was a serious aggravating feature that should have, in the circumstances, resulted in a higher starting point than 18 months.

(4)  We are conscious of the fact (which we have assumed) that the deceased in the case must have dashed out at the crossing when the lights governing pedestrians were on red.  Notwithstanding this, the starting point of 24 months reflects the seriousness with which cases of dangerous driving causing death at pedestrian crossings should be viewed by the courts.  But for the fact of the deceased having been in part responsible for the accident, the starting point would have been much higher.

22.With a starting point of 24 months, the appropriate sentence should have been 16 months' imprisonment. However, in view of the close proximity of the original date of release of the Respondent (in the middle of September, some 2 weeks from the date of the hearing of the Review), in our judgment, the original sentence of 12 months should not be disturbed.

23.For the above reasons, the application for review of sentence in CAAR 2/2009 was granted but the original sentence of 12 months' imprisonment remained undisturbed. The period of disqualification from driving for 3 years also remained.

CAAR 4/2009

24.This was a more serious case than the previous one. In our judgment, the sentence of 20 months passed by the judge was again manifestly inadequate. The judge adopted a starting point of 24 months. It ought to have been 36 months : ‑

(1)  At the time of the accident, the lights governing the bus driven by Wong were on red.  The lights facing the pedestrians crossing the road at the pedestrian crossing were on green.

(2)  Even if Wong did not actually see that the lights were against him, there were clear signs to any driver that the lights governing vehicles were on red.  There were two vehicles (on either side of the bus driven by Wong) that were stationary at the crossing.  There was no question of the lights suddenly turning against him.

(3)  The clear inference is that Wong was simply reckless : despite all the warning signs, he nevertheless continued to travel into the pedestrian crossing without slowing down, oblivious to the obvious dangers that this caused.  The result was a death and injuries caused to another person.

(4)  It was almost as if the Respondent did not care whether or not his bus hit anyone at the pedestrian crossing.  He certainly decided to take a huge risk in the way he drove.

25.As for the reduction in the sentence of 4 months, in the exceptional circumstances of the case, we did not think it inappropriate that a reduction was given in favour of the Respondent. We cannot find fault with the way that the judge approached the matter.

26.For these reasons, the application for review of sentence in CAAR 4/2009 was granted and we ordered that a sentence of 32 months' imprisonment be substituted in place of the original sentence of 20 months' imprisonment. The period of disqualification from driving for 2½ years remained undisturbed.

Mr David C Leung of the Department of Justice for the Applicant (CAAR 2/2009 & CAAR 4/2009)

Mr Paul K N Wu, instructed by Messrs Liu, Chan & Lam for the Respondent (CAAR 2/2009)

Mr Albert Poon, instructed by Messrs W K To & Co for the Respondent (CAAR 4/2009)