Secretary for Justice v. Sze Sum

CAAR 2/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 2 OF 2013

(ON APPEAL FROM DCCC 65 OF 2013)

________________

BETWEEN

________________

Before: Hon Yeung VP, Cheung and Yuen JJA in Court

Date of Hearing: 29 October 2013

Date of Judgment: 29 October 2013

Date of Handing Down Reasons for Judgment: 6 November 2013

REASONS FOR JUDGMENT

Hon YEUNG VP (giving the Reasons for Judgment of the Court):

Background

1.This application arose from a fatal traffic accident.  The accident took place at about 11:30 p.m. on 22 June 2012.  The vehicles involved were a private car driven by the respondent (Sze Sum) and a motorcycle driven by the deceased.  

2.At the time of the accident, the deceased was driving a motorcycle along the fast lane of Yat Tung Street, Tung Chung in a northerly direction while the respondent was driving a private car along the fast lane of Yat Tung Street in a southerly direction.

3.On reaching the vehicle entrance of Yat Tung (II) Estate, the respondent crossed the continuous double white lines separating the northbound and southbound fast lanes, cut across the fast lane of northbound Yat Tung Street and turned right into the vehicle entrance. The deceased could not brake in time.  His motorcycle collided with the respondent’s private car.  The deceased was thrown off the motorcycle and he fell down onto the road.  After the incident, the respondent said to the investigating police officer, “I was travelling along the second left lane in the direction of Po Yat House.  While driving across (the road), (I) didn’t pay attention to the oncoming traffic.”

4.The deceased was sent to the hospital but died at about 5:00 a.m. the following day.  The cause of death was multiple bleedings, liver laceration, hemoperitoneum and multiple fractures of ribs.

5.As a result, the respondent was charged with the offence of dangerous driving causing death.  He denied the charge and was tried before District Judge Gary Lam (the trial judge).

6.On 16 May 2013, the trial judge acquitted the respondent of the original charge of dangerous driving causing death but convicted him of the charge of careless driving.  On 28 May 2013, the trial judge imposed a fine of $5,000 on the respondent and ordered him to be disqualified from driving for a period of 12 months and to complete a driving improvement course before he could drive again (the sentence).

7.The Secretary for Justice (the Secretary) considered that the sentence was too lenient.  It was one which a judge, having applied his mind to all the relevant factors, could not reasonably consider it to be within the appropriate range of sentences.  Therefore, pursuant to Section 81A of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong, an application was made to the Court of Appeal to review the sentence.

8.On 19 June 2013, the Acting CJHC gave leave to the Secretary to apply for review of the sentence.  After hearing, this Court granted the application for review.  Apart from the sentence, this Court further imposed on the respondent an additional sentence of 4 months’ imprisonment which is to be suspended for two years.  Here are the reasons of this Court.

Trial judge’ s reasons for sentence

9.The trial judge found that the accident was caused by the failure of the respondent to put on his right indicator light and to pay attention to the oncoming traffic while turning right into the vehicle entrance of Yat Tung (II) Estate.

10.In the view of the trial judge, the accident was probably “caused by a momentary lapse of attention” on the part of the respondent.  The trial judge pointed out that the respondent had pleaded guilty to careless driving from the outset, hence, he should be sentenced on the basis of a guilty plea.  The trial judge also pointed out that the respondent had a good driving record, and he didn’t even have a record of fixed penalty ticket.  In the view of the trial judge, although the life of the deceased had been taken away because of the incident, the sentence was sufficient to reflect the culpability of the respondent.

Background of the respondent

11.The respondent was born in Hong Kong on 21 October 1991.  In 2009, he was sentenced to probation for 18 months and fined $5,000 for claiming to be a member of a triad society.

12.The respondent is a Form 5 graduate, unmarried and living together with his parents and younger siblings. He is a property agent with a monthly salary of around $15,000.  The respondent obtained his driving licence in August 2011, which was less than one year prior to the accident.

The Secretary’s grounds of application

13.Mr William Tam, Deputy Director of Public Prosecutions who appeared on behalf of the Secretary, submitted that the sentence was inadequate to reflect that someone was killed in the accident.  It also failed to reflect the gravity of the offence committed by the respondent.  Mr Tam stressed that this was an extremely serious case of careless driving with quite severe level of culpability.  The appropriate sentence was an immediate term of imprisonment.

14.Mr Tam submitted that the sentence was inconsistent with those imposed in other cases of similar nature.  The trial judge failed to consider other sentencing options.  Mr Tam cited a number of similar cases in support of his contention.

Respondent’s position

15.Mr Geoffrey Chang, counsel for the respondent, agreed that when sentencing for the offence of careless driving, fatality was one of the factors to be taken into account.  He, however, stressed that when sentencing, greater prominence would be given to fatality only if there existed a higher level of culpability and criminality.  Mr Chang submitted that had no death been caused in the incident, the respondent might have been fined $2,000 to $3,000 only, and there might not have been a disqualification order either.

16.Mr Chang submitted that in the present case, the culpability and criminality of the respondent was relatively low.  He only failed to put on the right indicator light and pay attention to the oncoming traffic while turning right, thereby causing the accident.

17.Mr Chang asserted that the trial judge was entitled to find that the accident was caused by just “a momentary lapse of attention” on the part of the respondent.  He stressed that the accident happened in the still of the night.  The traffic was light and the motorcycle of the deceased was small.  It was not easily detectable.

18.Mr Chang further pointed out that the respondent had a good driving record.  Therefore, the sentence was not unreasonably lenient.  It was within the reasonable range of appropriate sentences, so the sentence should not be reviewed by the Court.

Discussion

19.It is surely no easy matter to deal with offences relating to traffic accidents.  The reason is that most traffic offenders involving accidents have no criminal record.  Throughout their lives, it may never occur to them that they will face sentences in courts.  However, this Court should at the same time stress that a vehicle in the hands of an irresponsible driver can become an extremely lethal weapon.  Countless examples show that traffic accidents may result in heavy casualties as well as substantial economic losses.  Victims of traffic accidents may die or suffer permanent impairment, bringing untold misery and anguish to the victims and/or the families of the victims.

20.The courts are duty-bound to deter the irresponsible drivers from causing distress to other innocent road users and/or their families.

21.While the respondent was driving on the road, he made an abrupt turn into another carriageway.  In so doing, he failed to take any reasonable measures.  He cut across the path of the vehicle in the opposite carriageway, causing the private car driven by him to collide with the motorcycle driven by the deceased and resulting in the death of the deceased.  Evidence showed that when the respondent made the turn, he did not reduce his speed or put on the right indicator light.

22.There were only two causes for the accident: (1) The respondent paid no heed at all to the road conditions while turning right.  According to the expert evidence, had the respondent observed the road conditions, he must have noticed that the deceased’s motorcycle was approaching; or (2) He did see the motorcycle and despite the insufficient distance between his private car and the motorcycle, he still recklessly proceeded with the right turn into the vehicle entrance of Yat Tung (II) Estate regardless.  No matter whether the accident was caused by which of the above reasons, the culpability and criminality of the respondent was on the extremely high side.      

23.This Court must not overlook that at the time of the accident, the weather was fine and the traffic was light on that stretch of the road.  The road surface was good and dry and the road was well-lit by street lights.  Also, this Court must not overlook that the accident took place at about 11:30 p.m. at night and the lights on the deceased’s motorcycle were on.  Had the defendant paid slightly more attention, he must have seen the motorcycle travelling in the opposite carriageway.  Nevertheless, the respondent still failed to take any safety measures and made an abrupt right turn to cut across the path of the deceased’s motorcycle, ending up in the collision of the two vehicles.

24.The respondent said he didn’t pay attention to the oncoming traffic while turning right.  If it was true, his negligence did fall into the more serious category.  When driving on a main road in the middle of the night and cutting across the opposite carriageway, he paid no attention to the road conditions at all and made an abrupt turn while he was rather close to the vehicle in the opposite carriageway, which resulted in the accident.  If the respondent did see the motorcycle of the deceased in the opposite carriageway but still proceeded with the right turn regardless, resulting in the collision of the two vehicles, then the driving manner of the respondent was extremely reckless.  The accident was absolutely not brought about by a momentary lapse of attention, but a result of the serious negligence and/or recklessness on the part of the respondent who abruptly turned right to cut across the path of the deceased.

25.The deceased was riding his motorcycle on the road in a normal manner.  It was his right to presume that drivers in the opposite carriageway would not abruptly cut across his path at an insufficient distance.

26.This Court must not overlook that in this incident, the deceased sustained serious injuries from which he died.  This is definitely a factor to be taken into account when sentencing.  The hardships caused to the deceased’s family as a result of the incident, their grievances and resentments are not to be disregarded too.  If the sentence passed on the offender is too lenient, they have the right to question the Court whether their feeling of injustice constituted by the incident had been taken into consideration.   

27.We absolutely disagree that this incident can be described as a result of a “momentary lapse of attention”.  The respondent had totally disregarded the safety of the drivers in the opposite carriageway and paid no heed to the oncoming traffic, which led to the extremely grave consequences.

28.In the present case, as pointed out by Mr Tam, the respondent was the only one at fault whereas the deceased was absolutely innocent.  Yet the latter lost his precious life as a result of this incident, leaving untold suffering to his family.

29.Submission of Mr Chang that the respondent has a good driving record is even not worth mentioning.  At the time of the accident, the respondent had obtained his driving licence for no more than a year.

30.We agree with the submissions of the Secretary.  In our judgment, the sentence was absolutely inappropriate as it failed to reflect the gravity of the present case.  It was a sentence that a judge, having applied his mind to all the relevant factors, could not reasonably consider it to be within the appropriate range of sentences.

31.Given the background of the case and the course of the event, in our view, the appropriate sentence should be a term of approximately 4 months’ imprisonment even for a plea of guilty. We take into account that this matter has hung over the respondent’s head for some time and this is an application for review of sentence, we order the term of imprisonment to be suspended for two years.

32.We granted the Secretary’s application and apart from the sentence, we further impose an additional sentence of 4 months’ imprisonment on the respondent, which is to be suspended for two years.

Mr William Tam, Deputy Director of Public Prosecutions of the Department of Justice, for the Applicant

Mr Geoffrey Chang, instructed by Herman H.M. Hui & Co., assigned by the Legal Aid Department, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vettedby Mr. Patrick W.S. Cheung, Barrister-at-law.