HKSAR v. Ho Kam Cheong

HCMA 139/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 139 OF 2010

(ON APPEAL FROM KTCC NO. 1764/2009)

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Before: Hon Beeson J in Court

Dates of Hearing: 13 May and 2 June 2010

Date of Judgment: 25 June 2010

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J U D G M E N T

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1.The Appellant was convicted of one charge of Dangerous Driving causing Death, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374, after a six days trial before Deputy Magistrate Daniel Tang. He was sentenced to 12 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of three years. He was also ordered to attend and complete a mandatory driving improvement course within three months before the end of the disqualification period. The Appellant appealed against conviction and sentence. He was represented by Mr Kevin Egan, the counsel who had also represented him at trial.

2.The charge arose from an incident where the Appellant while driving his PLB which had emptied of passengers, tried to avoid a double-decker bus which was pulling away from a bus stop on the first lane and which entered the second lane on which the Appellant was proceeding.

3.The Appellant made a sharp right turn into another street, but in doing so hit an elderly pedestrian who died later from the injuries he sustained.  The gravamen of the prosecution case was that the Appellant was driving too fast for the conditions, that he was not keeping a proper lookout and that in consequence his attempt at evasive action was unsuccessful.  The defence case was that the accident had been caused by the bus and that the Appellant’s speed was not such as could be considered dangerous in the circumstances.

Grounds of Appeal

4.Grounds of appeal against conviction and sentence were filed on 7 April 2009.

5.Ground one alleged that the Magistrate erred in fact and law in convicting the Appellant of dangerous driving causing death, because the prosecution evidence failed to establish that the way he drove fell far below what would be expected of a competent and careful driver.

6.On this ground counsel for the Appellant submitted that the accident was caused by the driver of the double-decker bus who had pulled out from the bus stop into the path of the Appellant.  This had caused the Appellant to take evasive action during which, he had hit the deceased.  The bus driver (D2) had been tried on a charge of Careless Driving at the same time as the Appellant, but was acquitted.

7.Ground two was that the court conveyed the impression of bias.  It was alleged that there was a material irregularity during the trial, in that the Magistrate conveyed the impression that he was biased against the Appellant, first by virtue of certain questions that he either asked or attempted to ask, but also because of the care that, allegedly, he took to record in detail anything that a neutral bystander would conclude was a matter adverse to the Appellant.  This was said to have deprived the Appellant of a fair trial according to law.

8.The third ground of appeal was that the conviction was against the weight of evidence and unsafe and unsatisfactory.

9.The grounds of appeal against sentence were that the sentence was manifestly excessive and wrong in principle.

History of Appeal

10.This appeal was fixed for hearing on 13 May 2010.  On that day the Appellant’s counsel requested a full transcript of the trial.  An earlier request had been made to the court for the transcript, but for reasons unknown it had not been considered.  After hearing submissions from counsel for the Appellant and the Respondent, I granted the request to the extent that a transcript of the evidence of PW1, PW3 and PW4 was ordered as a matter of urgency and a new date was fixed for the appeal.

11.The main reason for granting the request for a transcript was that counsel for the Appellant was making serious allegations against the Magistrate as having been biased in handling the evidence and as having shown bias in his conduct of the trial.

12.At the time final submissions were made to the Magistrate, Mr Egan prefaced his remarks with some extraordinary comments which are reproduced below.

“ Your Worship, a number of points. I don’t mean, what I am about to say, to be in any way disrespectful, but one of the things counsel learns the longer counsel is in the law is to try and read the body language of his tribunal, and reading your body language, and I may be wrong, my impression is that Your Worship is looking for evidence to convict my man of dangerous driving causing death. I don’t say that in any way disrespectfully, I don’t mean it, it’s just the impression I have, and what I am trying to do now is to persuade you that it would be a wrong approach.”

13.Having started his address by suggesting that the Magistrate was biased or appeared to be, Mr Egan then went on to make some gratuitous remarks about his own client, which had no proper bearing on his submission, and which did not advance his client’s case.

“ And let me start by saying something fairly obvious. My defendant has an unfortunate appearance, he doesn’t look like a pleasant man. He doesn’t, he has an unappearance. But experience tells us that sometimes devils look like angels and sometimes angels look like devils so I’m just saying, the fact that he’s got an unfortunate countenance is something that is really immaterial.”

14.Having delivered himself of these clumsy, attempts at advocacy, and the Magistrate having refrained from interrupting, Mr Egan continued his submission.

15.However at the conclusion of the submission the Magistrate, properly, referred to the remarks made by counsel at the beginning of his submission, trying to clarify what it was that he was accused of.

16.Mr Egan then gave a rambling explanation apparently in an attempt to retract what he had said.

“COURT:        … before you made your submission, you said that “my body language or my gesture gives you a impression that I want to or I’m looking to have evidence to convict the 1^st defendant.”  What makes you think so?

MR EGAN:     Your Worship I did preface that by saying that I wasn’t in any way trying to be offensive.

…

COURT:          Of course, but …

MR EGAN:     Not -- not at all.  Counsel do this all the time, most counsel don’t say it.  I put my money where my mouth is.  I just get the impression that, your Worship, just by the questions your Worship asked or attempted to ask, when, for example, my learned friend was cross-examining on the previous witness statement, your Worship was careful to say, “Well, wait a moment now, let me get this down,” when he was cross-examining on these prior inconsistent statements, which, as I’ve already indicated, have got no evidential value.  And it (is) just the general impression I got, your Worship, that’s all.  And in every case that I do, I make a value judgment as to which way I think the Magistrate is lean(ing), and I try to counteract that, and sometimes I will say to the Magistrate, exactly – or Judge – exactly what I said to your Worship, but I didn’t mean it in any offensive way, I was just trying to -- what I would like to say is, if your Worship is thinking that way, don’t, because it would be wrong, as a matter of law, to do it.”

COURT:          Whether you were offensive is one point, I just want to make clear, just because I want to have some time to put down my record, it makes you think that – gesture makes you think that I am looking forward to have evidence to convict the 1^st defendant?

MR EGAN:     Possibly, that …

COURT:          So, other than that, any other, makes you think so?

MR EGAN:     No, no, it’s just that, and that alone.

…

COURT:          So, I want to make it clear, just because I stopped the question and want to have some time to put down my record, which makes you think that I am looking forward to have evidence to convict the 1^st defendant, that’s all you want say?

MR EGAN:     Yes.  I stress again, your Worship, I was not trying to be offensive.

COURT:          Whether it is offensive is one matter, but if you are saying that I was pre-judging the case or I am trying to -- looking forward to have evidence, I am not doing my case judge and fairly -- just and fairly, that would be another matter.

MR EGAN:     Your Worship, I would never have suggested that for a moment because that’s not the way that I feel, it’s not the way that I have judged your Worship, as I’ve put it.  Not at all, your Worship.  What -- I’m just trying to, out of an abundance of caution, I am trying to -- I’m trying to get one step ahead, if you like, by saying, “Look, if you’re minded in that direction, please pause for the following reasons, the reasons that I have set out in some detail as to why you should not proceed in the conviction direction.”  Perhaps I have been, and I have been criticised for it before, too characteristically blunt in the way I put my submission.  One of the problems of being an Australian, I intend to say things extremely bluntly.

COURT:          Whether you make your submission bluntly or offensively is one matter, but I just want to make it clear, is it your opinion that I pre-judged this case?

MR EGAN:     No, not at all.  I have every confidence that your Worship has not pre-judged the case.”

COURT - Or failed to hear this case justly and fairly?

MR EGAN - Certainly not, nor did I ever say that.

COURT - So, just because I want to have some time to put my record down, which makes you to have that observation?

MR EGAN – It was only the portions of the evidence that Your Worship was concentrating on, for example, the cross-examination by Mister Leung where he was bringing out things that were clearly adverse to my lay client, which came from a prior inconsistent statement, which, of course, is not evidence anyway.  I’m trying to caution, Your Worship, against using a prior inconsistent statements in any way because you can’t.

COURT – So, you …

MR EGAN – It’s merely a matter that goes to credit.

COURT – So, is it part of my duty to put down my record?

MR EGAN – Of course.

COURT – So, just because I’m carrying out my duty, you think that this gesture makes you think I am looking forward to have evidence to convict the defendant?

MR EGAN – Your Worship, I’m not being critical of you professionally or otherwise in any way, shape or form, and nor did I say that.  If I’ve offended you, I apologise…

COURT – No.

MR EGAN - … because I never intended to offend you.

COURT – I have told you once again, whether it is offensive is one matter.  Your comment is another matter, so I just want to make it clear.

MR EGAN – Your Worship, I fully accept what you’ve said.

17.Given the tenor of that dialogue and having noted that he had assured the Magistrate several times that he was not suggesting he had pre‑judged the case, it is difficult to see on what basis, or indeed why, counsel sought to resurrect the allegation of bias as his second ground of appeal.

18.When he applied for the transcript Mr Egan submitted that there were likely to be two additional perfected grounds of appeal as he asserted that the Magistrate had “gone too far” and that he felt he had formed his decision to convict, despite Mr Egan having tried to “shock him out of it.”  He contended that the transcript would disclose the areas for criticism.  He alleged that the Magistrate’s Statement of Findings had omitted important things said by the witnesses.

19.The transcript was available prior to the adjourned hearing on 2 June 2010.  My reading of the transcript prior to the appeal hearing did not indicate any areas of bias shown by the Magistrate during the evidence of PWs 1, 3 and 4.  No additional grounds of appeal were filed in consequence of the transcript, nor were Perfected Grounds of Appeal ever produced.  When the appeal was heard on 2 June 2010, Mr Egan, although stating he was not withdrawing or abandoning the second ground, indicated that he would rely mainly on the first ground and claimed that there was only one area connected with his second ground on which he wished to criticize the Magistrate.  This appears to have been a face-saving effort to justify his having requested the transcript.  The matter he raised did not substantiate any indication of bias; nor give an impression of bias; nor was there any merit in Mr Egan’s submission on Ground 2.

20.I have set this matter out in detail because the allegations made that the Magistrate appeared to show bias were very serious and for the purposes of the record, the matter should be clarified.  The transcript of the evidence of PW1, PW3 and PW4 indicated nothing which remotely showed bias or a tendency to bias, by the Magistrate.  Mr Egan, properly, should have abandoned this ground and apologised to the Magistrate.  As it is I dismiss Ground two as not having been established.

Facts of the case

21.The prosecution evidence came from a number of witnesses; Admitted Facts; a sketch; photographs; and a Motor Vehicle Examiner’s Report.  The incident occurred at Castle Peak Road which, at that point, was a one-way three lane carriageway separated by intermittent white lines.  At the junction with Fuk Wing Street, Castle Peak Road became a one-way two lane road, the third lane at that point turning right into Fuk Wing Street.

22.The accident took place at 8:18a.m. in the morning.  It was a Friday, a work day.  The road was dry and in a good state of repair.  The speed limit at the site of the incident was 50 km/h.  Traffic was smooth.  The lighting was good.  Subsequent examination of the PLB did not show any mechanical defects.

23.The Appellant was a public light bus (PLB) driver operating a red minibus Registration No. LW9949.  All his passengers had alighted and the Appellant was travelling on the second lane heading towards Mongkok.  At the time he reached the junction of Castle Peak Road with Fuk Wing Street a double-decker bus, Registration No. GL7586 driven by D2, started to move away from the bus stop on the first lane, intending to pull into the second lane ahead of the Appellant.  The Appellant estimated his own speed at that time to be about 60 kph.

24.The eye witnesses some of whom, PW1, PW2 and PW3, were themselves drivers, gave evidence that the Appellant was driving very fast.  PW1, who was following the Appellant on a motorcycle, said that the Appellant was driving noticeably faster than he was and that the gap between the PLB and his vehicle was widening.  The estimates of speed varied:

PW1 -     faster than 40-50 kph

PW2 -     “coming with a high speed” “travelling at 70 kph”

“felt it was moving very fast”

PW3 -     70-80 kph – very fast

PW4 -     “it was quite fast”

PW5 -     “turning into Fuk Wing Street at high speed”

“travelling a lot faster than other vehicles on the road”

PW6 -     “was not travelling smoothly”

25.The bus pulled out into the second lane at what the witnesses described was a “normal speed” (PW3 – B213H, PW4 – B226I).  Seeing that if he proceeded straight ahead he would collide with the bus, the Appellant swerved right from the second to the third lane intending to drive into Fuk Wing Street.  He was driving at too high a speed and did not have sufficient clearance to complete the turn.  He knocked down the deceased who was standing on the carriageway near the left curb of Fuk Wing Street.  He also ploughed into and knocked down, or out of place, 13 motorcycles which were parked in a row from the corner of the left side of Fuk Wing Street, before he brought his PLB to a stop.

26.The Motor Vehicle Examiner’s Report assessed the speed of the Appellant from the tyre marks made at the time he began braking, which was at the time he tried to turn into Fuk Wing Street, at 41 kph.  The speed limit for that stretch of road was 50 kph.  The Appellant in his Record of Interview told the interviewing officer that he did not know what the speed limit was at that part of Castle Peak Road, but that he thought it was 70 kph.  He claimed he had been driving about 60 kph.

27.The MVE report stated that as the Appellant tried to turn, the PLB began yawing clockwise from the second lane of Castle Peak Road and hit the line of parked motorcycles; that emergency braking was applied only when the PLB began the turn; that the PLB stopped diagonally in the middle of Fuk Wing Street and damage found on the offside lower part of the bus and to its windscreen suggested that the PLB had hit the deceased.

28.Cars and buses as well as pedestrians were using the road at that point, traffic was running smoothly and, according to PW1, the vehicles were “not many”.

29.PW1 estimated his own speed at 40 to 50 kph but said that the Appellant was driving faster than he was and the distance between his motorcycle and the PLB kept increasing.  He said the PLB “swerved into Fuk Wing Street at a high speed.  Basically one could not turn into that street with such a speed”.

30.PW2 had held a driving licence for 10 years and was very familiar with the area where he had operated a coffee shop for 5 years.  He said that the Appellant was traveling faster than most vehicles he had seen and he estimated the speed of the PLB at 70 kph.  He saw the PLB hit the deceased and the motorcycles. 

31.PW3 was a part-time PLB driver.  He was licensed to drive a private car, light goods vehicle, heavy goods vehicle, motorcycle and mini‑bus and had been driving for 20 years.  He estimated the speed of the PLB at 70 to 80kph.  He said that it was after almost half of the body of the Bus had entered into the second lane, that he heard a braking sound, in his view, the bus had travelled slowly from the first to the second lane.

32.PW4, who was not a driver, described the speed of the PLB as “quite fast” and said that when it turned into Fuk Wing Street, its speed was almost the same as when it was on the Castle Peak Road.

33.PW5 was a passenger on the upper deck of another bus stopped at the bus stop.  He described the speed of the PLB as high when it was turning into Fuk Wing Street, although it did decelerate to some degree.

34.PW6 was waiting for a bus at the bus stop.  She saw passengers alighting from the bus and saw it drive away “normally” to the second lane.

35.The Appellant elected to remain silent and the information about him came from the Admitted Facts and his Record of Interview.  The road was one with which he was familiar and he was making his second run of the day out from Kwun Tong.  He claimed the bus had pulled out only about 1-2 feet from him, which was why he had to turn right to avoid it.

36.The Magistrate found that the evidence showed that the Appellant’s driving based on the objective test fell far below the standard expected of a competent and careful driver.

Consideration

37.The prosecution evidence taken as a whole was that the Appellant was driving considerably in excess of the speed limit.  The Appellant himself admitted his speed was about 60 kph, but PW2 and PW3, both experienced drivers, estimated his speed was around 70 kph as he approached the junction.  Given that the Appellant believed the speed limit at that point was 70 kph, it is highly likely that his speed was closer to, or even in excess of 70 kph.  PW3 had estimated the Appellant’s speed at 70-80 kph.

38.Because his approach to and through the junction was so fast the Appellant either did not see, or noticed too late, the traffic conditions and was unable to brake or take effective action to avoid the bus as it moved out from the bus stop to the second lane.  Any driver, let alone a professional driver such as the Appellant should be aware of the possibility that other vehicles might pull out into traffic, change lanes unexpectedly, stop suddenly, or that pedestrians would do unexpected things or disobey traffic rules.  A driver must drive in anticipation of unusual activity by other vehicles or pedestrians.

39.Further, the Appellant had braked too late to slow his course.  He tried to turn with insufficient room to enter Fuk Wing Street and admitted he had not sounded his horn as a warning.  Any deceleration began only at the time he was turning and the degree of deceleration was apparently inadequate, as is shown by the effect of the PLB on the parked motorcycles. 

The law

40.Section 36(4) of the Road Traffic Ordinance provides that a person drives 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.

The test of liability and objectives

41.The elements of dangerous driving causing death are:

(a)     there must be dangerous driving by the accused;

(b)    there must be the death of another person; and

(c)     there must be a causal connection between the driving and the death.

42.All circumstances of a case must be considered including;

(a)  the nature, condition and the use of the road at the material time;

(b) the actual amount of traffic on the road, or the amount that might reasonably be expected to be on the road at the relevant time;

(c)  The circumstances of which the accused could be expected to be aware, or any circumstances shown to have been within the accused’s knowledge – including in each instance the accused’s physical condition.

43.In Brown & Lynn, Pursuers v. Western S.M.T. Co. Ltd [1945] SC 31 Lord Justice Clark in considering an appeal in a case where an accident had been caused because of an exceptionally abrupt stop by a vehicle in front stated;

“The following driver is, in my view, bound, so far as reasonably possible, to take up such a position, and to drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated: but whether he has fulfilled this duty must in every case be a question of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances.”

44.At a later stage he stated:

“I am not prepared to hold that he has been proved to be in fault for failing to make better provision for a contingency so extreme. The rule of reasonable care and foresight cannot be elevated into a counsel of perfection which would require a following vehicle to give a leading vehicle so wide a berth that every possible risk, however remote, would be amply covered.”

45.Brown & Lynn Pursuers was relied on in The Queen v. Li Tat-man [1991] 1 HKLR 368.  The appellant was driving on the Eastern corridor at 11 PM when, near a bend, he was confronted with a stationary car facing him head-on in the lane in which he was driving.  He tried, unsuccessfully, to take evasive action.  The court allowed the appeal against his conviction for careless driving stating that it all depends upon the circumstances pertaining at the time.  There was no evidence that the appellant was driving excessively fast and the court considered that the last thing a driver reasonably would expect to find in a three lane carriageway at that time of night would be a stationary vehicle, without lights on, facing his direction.  For the court to have decided otherwise would have been to elevate the rules of reasonable care and foresight into a course of perfection.

46.However, Li Tat-man was a very different fact situation from the one in this case.  This Appellant, a professional driver, was driving his vehicle at a speed that was too high, given the conditions, in an area where from his experience and knowledge he would have known the driving risks involved.  It was an intersecting area of road used by pedestrians and all forms of transport, including large buses using bus stops to collect and drop off passengers.

47.The Appellant’s not knowing the speed limit and his belief that the limit was 70 kph in that area of Castle Peak Road is a matter of real concern given that he was a public light bus driver who was supposed to be familiar with the route, the likely traffic problems and the peculiarities a driver might encounter on that route.  Further, his failure to keep a proper look-out or to slow sufficiently as he approached the intersection meant he was unable to brake in time or take effective evasive action.

48.A bus pulling out from a bus-stop cannot have been an unexpected manoeuvre and certainly was one which a careful and prudent driver would have been alert to in negotiating the intersection during a busy, or potentially busy, time on a working day.  Further indication of the degree of excess speed is demonstrated by the damage and disturbance caused to the row of parked motorcycles into which the Appellant drove his vehicle.  Further, it was only when he began his turn that the Appellant decelerated and applied his brake.  His vehicle stopped at least in part because he ran into the motorcycles which checked his progress.

Conclusion

49.Counsel for the Appellant argued that the speed of the Appellant, which he claimed was 60 kph, did not bring his driving into the category of dangerous driving.  The Magistrate disagreed.  First, it is difficult to place any reliance on the Appellant’s figure.  The Appellant said he did not know the speed limit for that section of Castle Peak Road but he assumed it was 70 kph.  The evidence of the witnesses, in particular PW5 and PW3, indicated that the Appellant’s speed was in excess of 60 kph, possibly as high as 80 kph.  Even the non-drivers recognised the speed as very fast.

50.The evidence about his speed must be looked at in terms of the general driving conditions and the location.  In that context the speed was too high and in consequence, the Appellant did not keep a proper lookout for other vehicles, or pay proper attention to the driving conditions generally.

51.The driver of the double decker bus may have caused the Appellant to take evasive action; it is not entirely clear why D2 was acquitted of careless driving.  Nevertheless, assuming that the movement of the bus was described correctly, the Appellant could have taken effective evasive action, or made use of his brake or horn, if he had paid attention to the traffic conditions and if he had not been travelling so fast through what was a well-used section of road.

52.I am satisfied that the evidence showed the Appellant was driving dangerously and that because of that driving, he caused the death of Mr Choi Sau Lui.  Accordingly, the appeal against conviction is dismissed.

Appeal against sentence

53.The Magistrate sentenced the Appellant to 12 months’ imprisonment, disqualified him from holding or obtaining a driver’s license for all classes of vehicles for three years and ordered him to attend and to complete a mandatory driving improvement course within three months prior to the end of his disqualification period.

54.The Appellant obtained his driving licence on 18 March 1985 and worked as a delivery worker for about 8 years.  He began working as a PLB driver in 2005.

55.The Appellant had two previous convictions for vice offences in 2003 which were not relevant for the purposes of sentence.  He had three traffic convictions and some Fixed Penalty citations of the type and number that one would expect to be accumulated by a professional driver.

56.In 2000 the Appellant was disqualified for three months under the Road Traffic (Driving-Offence Points) Ordinance, Cap. 375.  On 13 August 2007 he was convicted of using a mobile telephone when his vehicle was in motion and also of behaving other than in a civil and orderly manner.  The Fixed Penalty citations related mainly to picking up and setting down passengers in a restricted zone.  Overall it cannot be regarded as a bad record.

57.The Magistrate sought a background report before sentencing which set out details of the Appellant’s family, his education and his previous employment.  The report noted that he was remorseful about causing the death of the victim.  He had taken offerings to the scene of the accident to seek forgiveness from the victim; he had lost weight since the accident and had a bad conscience about the matter.  The Appellant sought leniency from the court.  There was nothing in the report which was of direct relevance to his driving manner or history, or to the accident itself.

58.The accident occurred on 26 September 2008, when the maximum sentence on indictment for this offence was two years’ imprisonment.  From July 2009 the maximum term of imprisonment for the offence of dangerous driving causing death was increased from 5 years to 10 years imprisonment on indictment.  The maximum term of two years on summary conviction remained unchanged.  The Magistrate noted the sentencing principles referred to by the Court of Appeal in Secretary for Justice v Lam Siu Fong CARR 2/2009 and Secretary for Justice v Wong Ton-fan, CARR 4.2005.

59.Those principles for sentencing offences of causing death by dangerous driving were reviewed and discussed in Secretary for Justice and Poon Wing Kay [2007] 1 HKLRD 660.  The court considered the dangerous driving in that case came within the worst category of that offence.  Mr Egan, for the Appellant, in effect contended that the present case was simply one of inadvertent speeding and thus should be assessed as no more than careless driving.

60.Speed limits are fixed so far as is possible to ensure the optimum safety of road users.  It is important that drivers, in particular, know what the limits are, that they abide by them and that, where driving conditions demand it, that they drop below those limits.

61.The Appellant was a professional driver and should have been “acutely aware of the necessity to be safe and not to risk people’s lives and safety” [Poon Wing Kay 670 B] whether of his passengers, or of other road users whom he encountered in the course of his work.  To drive in ignorance of speed limits through an intersection at a high speed, which meant he was unable to foresee, or cope with any common driving emergencies, brings the Appellant’s driving into the dangerous category.  This was not a case where his attention was diverted momentarily, although as was stated by McMahon J in HKSAR v Chan Yan HCMA 1108/2007, a momentary lapse may not necessarily mean the driving was not dangerous.

62.Overall the court when sentencing must take into account the fact that dangerous driving deserves to be punished.  Where death results from dangerous driving grave distress will be caused to the family of the deceased.  The impact on people’s lives would be taken into account when sentencing.  It was necessary to have in mind a deterrent effect when sentencing, taking into account the overall circumstances and the culpability of the offender.  A major factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users, or his passengers.  A clear record, good character and remorse are not irrelevant matters, but they are factors which must not be given undue prominence.

63.Although Mr Egan contended on behalf of the Appellant that the sentence of imprisonment was too high given the circumstances of the offence, it must be remembered that the Appellant killed a pedestrian because his driving fell far below what would be expected of a competent and careful driver.  Given his special experience and his responsibilities as a public light bus driver, he should have known and obeyed the speed limit, recognized the traffic conditions and been prepared for the possibility of having to drive defensively.  It cannot be said that 12 months’ imprisonment was too high a penalty.

64.It is obligatory to impose a disqualification period of a minimum of two years for a first offence of dangerous driving causing death.  The Magistrate imposed a three-year period of disqualification but I can see no justification for an additional year to be imposed in this case and the Magistrate in his Reasons for Sentence does not explain it.  It was not justified by the driving record of the Appellant, nor was it justified in terms of driving incident which led to the death.

65.Accordingly I allow the appeal against sentence to the extent of quashing the 3-year period of disqualification and replacing it with a disqualification period of two years.  The sentence of imprisonment is confirmed and the order requiring the Appellant to attend the driving improvement course remains in force; the Appellant is to attend and complete a mandatory driving improvement course within three months prior to the end of the disqualification period.

Mr Thomas Law, SADPP of the Department of Justice, for the Respondent

Mr Kevin Egan, instructed by Messrs Lam & Co, for the Appellant