HKSAR v. Lam Wai Ming

[English Translation – 英譯本]
HCMA 689/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 689 OF 2013

(ON APPEAL FROM KTC 3054 OF 2013)

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J U D G M E N T

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1.The appellant faced the following three charges: Charge (1) “causing grievous bodily harm by dangerous driving”, contrary to section 36A(1) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong; Charge (2) “failing to stop after an accident (with personal injury)”, contrary to sections 56(1)(a) and 56(5)[1] of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong; Charge (3) “failing to report to the police an accident involving injury”, contrary to sections 56(3) and 56(6)[2] of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong. The appellant pleaded guilty to Charges (2) and (3). As for Charge (1), he only admitted to “careless driving” and was convicted of this offence after trial. The following sentences were imposed: for Charge (1), $3,000 fine and disqualification from driving for 2 years; for Charge (2), 6 months’ imprisonment; for Charge (3), 2 months’ imprisonment, with one month thereof to run consecutively to the sentence for Charge (2). The appellant appeals the total sentence of 7 months’ imprisonment for Charges (2) and (3).

Facts

2.The trial magistrate Mr. Don So considered the sentences on the following factual basis (as extracted from his written judgment):

‘6. The Court makes the following findings of fact. The defendant had dinner with his friends. And then at midnight, he drove on a four-lane carriageway of a few hundred metres long inside a residential area with a light traffic flow, the speed limit of the road being 50 km per hour [namely Sau Ping Road, Sau Mau Ping]. Right after the defendant’s friend alighted from his 7-seater private car by the roadside near Sau Yin House, the defendant, negligently without noticing an on-coming motorcycle with the “headlight” on, started the car, drove from the left lane into the right lane, and then made an abrupt right turn crossing the double white lines, making what was commonly called a “U-turn”.

7. When the front bumper of the defendant’s car was about two feet into the opposite lane, the bumper collided with the right bodywork of the motorcycle which was proceeding uphill.  The motorcyclist bounced forward from the fast lane, landed on the slow lane and suffered serious bodily injury as a result.  At that moment, the defendant had not yet completed the “U-turn”.

8. In order to move away from what was commonly called “radiator grille” which had fallen on the ground, the defendant drove backward and then forward to complete the U-turn. After a brief stay there, he left the scene and drove towards Lam Tin. The defendant drove another passenger to his residence in Yau Tong, and then drove to Chai Wan Cemetery near his own residence and parked his car by a hillside.

9. Fortunately, a taxi was passing by the scene at the time of the incident.  Using his mobile phone, the taxi driver made a video record of how the defendant’s car left the scene.  Based on these video clips, the police managed to locate the passenger on board the defendant’s car and hence obtain the defendant’s particulars.  The police arrested the defendant inside his office on the following day and interviewed him in the presence of his lawyer.  The police issued a “Notice Requiring Identification of Drivers” to the defendant.  The defendant admitted within the 21-day time limit that he was the driver of the car in question.’

Sentencing considerations at trial

3.The magistrate listed all information, observations and considerations relevant to sentencing:

‘Whether the defendant was scared out of his wits

10. Having heard all the defence submissions, I am sure that the defendant was scared after the collision, but not scared out of his wits, otherwise he would not possibly have managed to steer his car away from obstacles at the scene, stay there briefly, drive away from the scene and proceed to “alight passenger(s)” in Yau Tong, and finally drive through the Cross-Harbour Tunnel to his residence in Chai Wan and park his car in a secluded hillside of a cemetery.

Case law

11. I have considered the Court of Appeal case of HKSAR v Ho Kwong Wai CACC 167/2012. The defendant in that case drove a private car from Tsuen Wan to Kam Tin via Route Twisk, and along what was commonly called a “zig zag” dual carriageway he sped, crossed double white lines and drove in the opposite direction of the traffic.   His car then had a heavy head-on collision with a motorcycle, causing the motorcyclist to be flung into midair and plummeted to the ground.    Thereafter, the defendant left the scene and continued to drive to an open area in Kam Tin, where he attempted to set fire to the car in order to destroy it completely.  I agree that the said case involved a manner of “dangerous driving” and the subsequent act of destroying evidence (i.e. perverting the course of public justice) which were much more serious and which cannot be mentioned in the same breath with the present case.  Moreover, in the appeal against sentence in that case, the defence did not take issue with the sentence imposed for the offences of failing to stop after accident and failing to report to the police.  That case is therefore of limited assistance for present purposes.

Defendant’s background

12. The defendant has all along been living in a public housing estate and has been serving as a low-rank civil servant for years.  He has a number of children, most of whom having completed their education, but those who are not yet employed need his financial support.  The defendant will retire soon, and if I sentence him to imprisonment, it will have a disastrous effect on his “pension”.

13. The defendant has a bad driving record.  He has approximately 30 years of driving experience, and his driving record over the past 10 years reveals the following: -

(i) one instance of what is commonly known as “disqualification from driving after incurring maximum driving-offence points”;

(ii) two occasions of “drink driving”;

(iii) two occasions of “speeding by 15 to 30 kmph”;

(iv) two occasions of “crossing double white lines” which are relevant for present purposes.

14. After the incident, the defendant took the initiative to apply to the Transport Department for cancellation of his driving licence, which means that he can no longer drive any vehicle in Hong Kong unless he retakes and passes the driving test.

Further considerations

15. It has been submitted that the defendant was not cold-blooded by leaving the scene in disregard of what happened to the motorcyclist lying on the road.  It is submitted that the defendant left the scene as there were obviously passers-by who would,  he believed, give a helping hand to the injured person.

16. I think there are two possibilities as to what was on the defendant’s mind when he left the scene: - (A) as the defence has submitted, the defendant was relying on the passers-by to report to the police and give a helping hand to the injured person at the scene.  However, if this was what he had in mind at that time, I think he was deliberately trying to evade justice and hoping to take to his heels when he clearly knew that there were passers-by who saw what happened and who should have witnessed the incident.  This is the very sort of conduct that the relevant statutory offence is directed at – the driver in question should stop his vehicle after an accident and remain at the scene, mainly for the purpose of providing information on the driver’s identity so that the police could carry out investigations.  After all, there was still a passenger on board the defendant’s car.  Did the defendant really believe that the passenger would definitely keep quiet and conceal the incident instead of taking the initiative to report the incident to the police  so that he would be brought to justice?  In any event, if, as the defence has submitted, the defendant still fled from the scene when there were passers-by who witnessed the incident, then he was blatantly challenging law and order.

17. Alternatively, there is possibility (B), which is that the defendant simply did not know or had no idea whether there were passers-by who could immediate offer a helping hand to the injured person.  If this is so, the defendant was cold-blooded by not reporting the matter to the police so that they could immediately send officers to the scene to deal with the aftermath.  Both possibilities are very unfavourable to the defendant.  After all, I think and also hold that the only reasonable explanation of the defendant’s act of leaving the scene after the accident is that he was selfish and just tried to evade the law.  What he did was a choice he made, not because he was scared out of his wits or because he could not help it.

Sentences

Charge 1

18. In respect of Charge 1, I have convicted the defendant of mere “careless driving” as I am only satisfied that the defendant drove in a very negligent manner in that he was unable to control his car and apply the brake in time in order to avoid the collision with the on-coming motorcycle.  The defendant did not deliberately commit a dangerous act.  This being the case, I will not consider a custodial sentence. All things considered, in respect of Charge 1 I sentence the defendant to a fine of $3,000 and disqualification from driving for two years.

Charges 2 and 3

19. In respect of Charge 2, when the motorcyclist was still lying on the road after the serious accident, with her life possibly in danger, the defendant did not stop his car but instead drove away from the scene with a view to fleeing.  In light of such selfish conduct in defiance of the law, I will adopt 9 months’ imprisonment as a starting point and reduce the term to 6 months on account of the defendant’s guilty plea.  As for Charge 3, I will adopt 3 months’ imprisonment as a starting point and reduce the term to 2 months on account of his guilty plea. Given that the two charges share the same factual matrix, and taking into account the “totality” principle, one month of the 2-months term imposed for Charge 2 is to run consecutively to the sentence for Charge 1.  Accordingly, I sentence the defendant to imprisonment for a total of 7 months.’

Grounds of appeal

4.The appellant argues that the sentences are manifestly excessive for the following reasons:

(1) Although the magistrate considered the appellant selfish, the possibility cannot be discarded that such selfishness stemmed from a momentary slip in thought, in other words, a silly decision made on a spur of the moment.

(2) Fines are usually imposed for offences similar to Charges (2) and (3).  Immediate custodial sentences were imposed in two decided cases (HKSAR v Wong Chuen Fuk, HCMA 896/2005; HKSAR v Ho Kwong Wai, CACC 167/2012), but the circumstances of the offences in those cases were far more serious than those in the present case.

(3) The appellant has never been incarcerated, and the background report has made positive comments on the appellant.

5.The appellant submits that the sentences for Charges (2) and (3), which related to the same incident, should be wholly concurrent.

6.The appellant submits, as a matter of government policy, if the imprisonment was for less than 6 months, the appellant’s pension would less likely be affected.

7.In a nutshell, the appellant submits that the appropriate starting point for Charge (2) should be 2 to 3 months and, for Charge (3), 1 to 2 months.

Discussion

8.The momentary slip in thought as described by the appellant means a lack of premeditation, but this does not mean much because it is difficult to imagine that the decisions not to stop the vehicle and report to the police after the accident were decisions made on the spur of the moment.  The crucial question is whether such conduct was the result of the person involved being scared out of his wits or was merely indicative of an intention to get away.  The magistrate has pointed out with reasons that the present case falls within the latter scenario (see paragraph 10 of the magistrate’s written judgment, quoted in paragraph 3 hereinabove).

9.The appellant’s background report is not as favourable to him as has been submitted on his behalf.  The probation officer described the appellant as a diligent and conscientious person who leads a simple life, but also described him as light-minded with weak law-abiding concept.  As for his poor traffic conviction record (see paragraph 13 of the magistrate’s written judgment, quoted in paragraph 3 hereinabove), the appellant simply put forward excuses such as “impatient”, “careless” and “lack of misunderstanding of the ordinance”.  I also notice that, one-odd month prior to the offences in question, the appellant received a fixed penalty ticket for failing to wear a seat belt – an offence which even young children know should not be committed.

10.As the magistrate pointed out (see paragraph 7 of his written judgment, quoted in paragraph 2 hereinabove), the female motorcyclist was hit on the left second lane in Sau Mau Ping (towards Lam Tin) and then hurled to the left first lane.  The police photos which had been adduced as evidence showed that there were iron railings by the side of the left first lane and that, after falling onto the ground, one of the motorcycle’s wheels was stuck to the gutter below the railings.  Of course, this does not serve to indicate the exact location to which the female motorcyclist fell, and I am not sure if there was evidence on this point. However, in the surrounding circumstances as shown, one could not possibly ascertain the extent of the female motorcyclist’s injury unless one alighted from the vehicle, and this was something which the appellant did not do.

11.The magistrate had analyzed on two levels the seriousness of the appellant’s conduct (see paragraphs 16 and 17 of the magistrate’s written judgment, quoted in paragraph 3 hereinabove).  However, this analysis was confined to the appellant’s own attitude and did not cover any further possible harm which might have been caused to the female motorcyclist.  In my view, it was extremely improper to rely on other passers-by or drivers to report to the police without knowing the extent of the victim’s injury. One cannot hope for luck or fortuity in a rescue operation in which every minute and second counts, particularly so when the accident happened at late night in an area with little traffic flow.  As it turned out, the female motorcyclist was not in critical condition (although she suffered bone fractures in all her right toes and was hospitalized for ten days and then on sick leave for slightly less than two months) and a kind-hearted taxi driver came to assistance.  These were forfuitous and did not happen as matters of course.

12.On the above basis, I should not consider the sentence imposed in the present case inconsistent with the cases cited by the appellant.  In Wong Chuen Fuk[3], the defendant left the scene after the accident because he accompanied his pregnant wife to see the doctor, but his light goods vehicle was left at the scene, and so it was not difficult for the police to trace the defendant.  Furthermore, the injured person was the passenger on board the taxi which had been hit, and so at least the taxi driver was available to call the police forthwith and have him sent to the hospital.  Therefore, if the circumstances in Wong Chuen Fuk are considered to be more serious than those in the present case, such seriousness can only refer to the defendant’s driving manner but not his conduct after the accident.  It is accordingly understandable that the defendant received a more lenient sentence of 3 months’ imprisonment for each of the two offences which were the same as Charges (2) and (3) in the present case.  The defendant did not appeal the sentence.

13.In Ho Kwong Wai, of which the magistrate had provided a summary (see paragraph 11 of the magistrate’s written judgment, quoted in paragraph 3 hereinabove), a heavier sentence than that in the present case was imposed mainly because the offences included “causing grievous bodily harm by dangerous driving” and “perverting the course of public justice” by setting fire to a vehicle.  The two remaining charges were the same as Charges (2) and (3) in the present case, and the circumstances of the offences were also similar to those in the present case. The sentences imposed in that case, which were also the same as those in the present case, had not been challenged by way of appeal.   By hindsight, the sentence imposed in that case may be considered too lenient: the accident happened at night on Tai Mo Shan, and the likelihood of the motorcyclist not being rescued might be even higher than that in the present case.

14.Apart from the above two cases, the appellant has also cited a few decided cases in which fines were imposed for the offences.  Nevertheless, they are cases either not involving any personal injury (HKSAR v Wong Hiu Wah, HCMA 22/2010), or involving appeal against conviction but not sentence (HKSAR v Leung Lai Ling, HCMA 688/2010), or with no discussion of the relevant issues (HKSAR v Chan Ying Ken, HCMA 1233/2004)[4]. I do not think these cases are of assistance.  

15.In short, I do not consider the sentences imposed for Charges (2) and (3) manifestly excessive.  The appellant’s pension should not carry any weight for sentencing purposes. The sentence to be imposed for this kind of offences should ultimately depend on whether any further harm might be caused to the injured victim by reason of delay in rescue or the victim being hit by other vehicles.

16.Finally, I accept that Charges (2) and (3) are two different offences.  Here I am not holding that consecutive sentences can never be imposed for these two offences.  Nevertheless, for purposes of the present case, it is indeed more reasonable to treat the failure to stop and failure to report to the police as one single incident.  This is my judgment.

Judgment

17.The appeal is allowed.  The individual sentences for Charges (2) and (3) are not disturbed, but they are to run concurrently, making a total term of 6 months.

Mr. Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the respondent/HKSAR.

Mr. Jackson Poon and Mr. Victor Lee, instructed by Messrs. Shea & Co., Damien, for the appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.