HKSAR v. Pang Kun Wah
Read the full judgment text of CACC 410/2013 on BabelCite. This Court of Appeal judgment was delivered on 17 October 2014 before Cheung JA, D. Pang J.
Criminal law – dangerous driving causing death – dangerous driving causing grievous bodily harm – Road Traffic Ordinance (Cap 374) sections 36(1) and 36(A) – sentencing – appeal – whether sentence manifestly excessive – CCTV evidence of three successive impacts over 21 seconds – applicant knew two workers were behind his car – repeated reversing manoeuvres at speeds up to 12 km/h causing death of 45-year-old renovation worker and grievous bodily harm to 24-year-old colleague – starting points of eight years and six years – reduction of one-third for guilty plea – further four-month reduction for compensation paid – whether sentencing judge wrongly treated acts as deliberate or akin to murder – whether adverse inferences wrongly drawn – sentencing guidelines in R v Cooksley & others [2003] 3 All ER 40 and R v Stephen George Topasna [2007] 1 Cr App R (S) 76 – four categories of culpability – intermediate culpability calls for 2-3 years; most serious culpability 6 years onwards – whether case falls within intermediate or most serious category – aggravating factors including applicant's knowledge of victims behind car and repeated reversing manoeuvres – mitigating factors including advanced age and good driving record – leave to appeal refused – sentence not manifestly excessive – application dismissed.
Legal issues: Whether sentence for dangerous driving causing death and grievous bodily harm was manifestly excessive
Outcome: Application for leave to appeal against sentence dismissed.
Cited by 7 cases · Cites 4 cases
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CACC 410/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 410 OF 2013 (On Appeal From High Court Criminal Case No. 460 of 2012) ________________________ BETWEEN
________________________ Before : Hon Cheung JA and D. Pang J in Court Date of Hearing : 17 October 2014 Date of Judgment : 17 October 2014 Date of Reasons for Judgment: 24 October 2014 ________________________ REASONS FOR JUDGMENT ________________________ Hon Cheung JA (giving Reasons for Judgment of the Court) : 1.The applicant pleaded guilty before Deputy High Court Judge Stuart-Moore to two offences under the Road Traffic Ordinance (‘the Ordinance’) (Cap 374), namely, one charge of causing death by dangerous driving contrary to section 36(1) (‘Count 2’) and one charge of causing grievous bodily harm by dangerous driving contrary to section 36(A) (‘Count 3’). In respect of Count 2, the applicant was sentenced to five years of imprisonment which was based on a starting point of eight years’ imprisonment, reduced by one third because of the plea and further reduced by four months in recognition of the compensation paid by the applicant to the victim of the accident. The applicant was disqualified from driving any motor vehicle of any description for ten years. He was also ordered to complete a driving improvement course pursuant to section 72A of the Ordinance. 2.In respect of Count 3, he was sentenced to 3 years and 10 months of imprisonment. This was based on a starting point of six years’ imprisonment with the same reductions as in Count 2. This sentence is to run concurrently with the sentence on Count 2. He was also disqualified from driving any motor vehicle of any description for ten years. 3.The applicant applied for leave to appeal against sentence. We dismissed the application at the conclusion of the hearing. We now give our reasons. Facts of the case 4.The two offences occurred at around noon on 26 November 2011 at a parking space outside a house (‘the house’) in Pollock’s Path on the Peak. The events leading to the offences were recorded by a CCTV installed at the compound of the house. The summary of facts of the case which was agreed to by the applicant is as follows :
The applicant’s case 5.The applicant’s case is that he was not aware that the deceased and the injured person were behind his car when he moved his car. Further the accident was caused by two major coincidences which came together at precisely the same time. The first was that the gear lever went from drive through neutral and straight into reverse without the applicant meaning to do that as he was unaware of the fault until that moment. Secondly, he had put his foot on the accelerator pedal when he meant to brake the car. The Judge’s view 6.The Judge rejected the applicant’s contention that he was not aware of the presence of the victims when he moved his car. In respect of the defect of the gear and the applicant’s contention he put his foot on the accelerator instead of the brake, the Judge held that :
Grounds of appeal 7.The applicant relied on the following grounds of appeal :
8.In his written submission, Mr Yu, counsel for the applicant, focused his appeal on the following four grounds. Ground 1 : Is the sentence manifestly excessive? Cooksley & others 9.Mr Yu referred to R v. Cooksley & others [2003] 3 All ER 40 which provides guideline for sentencing in dangerous driving causing death cases. He submitted that the present case falls within the ‘intermediate culpability’ range which calls for a sentence of 2 to 3 years. He submitted that many of the aggravating factors identified in Cooksley for highly culpable case of driving such as driving under the influence of drugs or alcohol or driving at excessive speed or racing were not present in this case. Overview 10.It is necessary to take an overview of the case first. The maximum sentence for dangerous driving causing death is ten years’ imprisonment while dangerous driving causing grievous bodily harm is seven years’ imprisonment. 11.A person is to be regarded driving dangerously if
12.The standard is an objective one as affirmed in R v Bannister [2010] R.T.R. 4. 13.This Court in cases such as Secretary for Justice v. Poon Wing Kay [2007] 1 HKLRD 660, Secretary for Justice v. Fong Chai Man [2008] 3 HKLRD 493, Secretary for Justice v. Law Siu Kuen, CAAR 9/2009 and Secretary for Justice v. Liu Kwok Chun, CAAR 3/2009 adopted the sentencing guideline in Cooksley for dangerous driving causing death. The two guiding features are the need for a deterrent sentence because of the grave consequence caused by the dangerous driving and the culpability of the defendant. The latter is the dominant factor in the sentencing exercise. 14.In Liu Kwok Chun, this Court suggested that between the two extreme situations of dangerous driving because of momentary error or judgment on the one hand and a selfish disregard by the driver for the safety of other road users or with a degree of recklessness on the other hand, there are varying degree of culpability depending on the presence of the aggravating factors. Factors such as consumption of drugs and alcohol, driving at greatly excessive speed or racing are usually present in highly culpable standard of driving. This Court also suggested the range of sentence for each of the four categories of culpability :
Topasna 15.While Cooksley referred to the aggravating factors which pointed to a highly culpable case of driving, it is important to bear in mind that the facts of each case are different and as pointed out in R v Stephen George Topasna [2007] 1 Cr. App. R. (S) 76 at paragraph 23 that whilst Cooksley provides valuable assistance to sentencers in determining where in the spectrum of sentencing a particular case falls, it was, and remains, a guideline case. It is therefore of assistance to a sentencer but it is not prescriptive. 16.Topasna is illustrative of the unique nature of an individual case on dangerous driving causing death. The appellant there pleaded guilty to five counts of causing death by dangerous driving. He was driving a double-decker bus when he stopped at a bus-stop to let off passengers and take on other passengers. The area was extremely busy with people walking across the road in front of the bus. When the appellant came to close the doors, the bus moved off and struck five people who were killed as a result. A man received grave injuries. It was accepted that when the appellant originally stopped the bus he applied the handbrake but left the automatic gear-box in drive. Once the handbrake was released, the bus moved forward and the appellant would place his foot on the foot brake in order to restrain the bus before allowing it to move off. On the occasion of the accident he mistakenly put his foot on the accelerator as he released the handbrake, with the result that the bus moved forward. The appellant continued to believe that he had his foot on the brake and that the brake had failed. He then realized that his foot was not on the brake, applied the brake and brought the bus to a halt. The episode was estimated to have lasted about 16 seconds. Sentenced to five years’ imprisonment concurrent on each count and disqualified from driving for seven years. 17.The English Court of Appeal dismissed the appeal. Latham LJ at paragraph 13 held that :
18.In Topasna the sentencing judge placed the case in the intermediate category, whereas the Court of Appeal expressed the view at paragraph 25 that :
19.The Court of Appeal further expressed the view that irrespective of which category the case belonged, the seven and a half years’ starting point applied by the sentencing judge was not manifestly excessive. The maximum sentence for the offence in England is 14 years. The present case 20.In the present case although the whole incident lasted only 21 seconds, the repeated manoeuvres which took place within this period of time resulted in the death and serious injury of two persons. The case clearly does not fall within the ‘intermediate culpability’ of Cooksley which calls for a starting point of 2 to 3 years as urged upon us by Mr Yu. 21.The present case is plainly a unique case. It is different from the usual cases of this nature which may contain the aggravating features indentified in Cooksley. Many of the cases referred to by Mr Yu are clearly not applicable to the facts of the present case. Those cases are after all illustrations of the guidelines set out in Cooksley. 22.The two most aggravating features in this case are, as found by the Judge, first, the applicant was aware that the two victims were behind his car and second, the repeated manoeuvres of the applicant in reversing his car to the wall where the two victims were working. Knowledge 23.The Judge’s view that the applicant knew the presence of the two victims behind his car when he got into his car to move it, is clearly supported by the applicant’s own admission to the police that he knew of their presence and also that he decided to move his car in order to give the men more space in which to work. They are contained in the agreed summary of facts. If the applicant’s case is that he thought that the men had left to take their lunch by the time he had finished reading his documents in the car, then he ought to have explained this by giving evidence at the Newton inquiry. This is more so when the Judge had actually stated that he did not accept the applicant was not aware of their presence and invited Mr Yu to deal with this. However, the applicant chose not to give evidence. 24.The evidence also showed that the applicant’s car had a beeping device which would give a beep sound when the gear was put in reverse and when the car came close to other objects. The agreed summary of facts which is based on events depicted on the CCTV recording further showed that after the first impact, a female cleaner ran to the car and then went to the wall where the two victims remained. The applicant’s denial of his knowledge of the two victims is totally unbelievable. Mechanical failure and panic 25.The applicant’s contention that he reacted in a panicky manner is also unbelievable. The car was parked on a slight incline, sloping downwards. As the Judge observed, the handbrake must have been used to prevent it from rolling forwards. When the applicant started the car, it did not immediately reverse back to the wall from that position, rather it moved forward for a distance of 1.8 meters and then stopped. The stoppage must due to the applicant either put his foot on the footbrake or applied the handbrake. It is inexplicable that the applicant would then release either the handbrake or footbrake and press on the accelerator which caused the car to reverse at a very fast speed of 12 km per hour towards the two victims, hit them and the wall behind them in the first impact. 26.Even accepting, for the purpose of argument, what happened at the first impact was a result of panic reaction and mechanical failure of the gear, what followed afterwards was totally inexplicable. 27.What is surprising is that after the second rebound in the first impact, the car actually halted and became stationary. This means the applicant must have again actually managed to put the car to a stop. As the Judge observed, all that the applicant had to do at that stage was to put on his handbrake or keep his foot on the footbrake. Yet the dangerous manoeuvre happened again resulting in the second impact. 28.After the second impact, the car actually moved forward to a distance of 3.8 meters. This means the applicant must have again managed to change the gear from the reverse to the forward position. It is simply incredible that somehow that after moving forward the car would reverse again and caused the third impact. The series of forward and backward movements could not simply be explained away by the defect of the gear button or the applicant stepping on the wrong peddle on the floor of the car. Highly dangerous driving 29.Applying the test for dangerous driving, the acts of the applicant in these three manoeuvres clearly constitute driving of a most highly dangerous kind. With these factors the present case is plainly not a case involving momentary error of judgment on the part of the applicant. The case comes within the top end of the category of culpability. The Judge’s choice of eight years and six years’ starting points which are close to the maximum sentence is clearly a reflection on the highly culpable nature of the applicant’s driving. 30.In our view no useful purpose is served by comparing the sentence in this case with that in Topasna where the maximum sentence of 14 years is higher than our statutory maximum of 10 years. Ultimately the issue is whether the sentence in this case is manifestly excessive having regard to the facts of the case. By giving a further four months’ reduction after the guilty plea, the Judge in effect adopted a starting point of seven and a half years. He had the opportunity of viewing the CCTV recording and the horror that was depicted in it. The sentence imposed by the Judge is not one that we are disposed to interfere for being manifestly excessive. Ground 2 : Adverse inference wrongly drawn against the applicant? 1) Deliberate untrue account given by the applicant 31.The Judge held that the applicant had given untrue account of the incident to the police at the scene. Mr Yu contended that the applicant was unlikely to give a false account given his knowledge of the presence of a CCTV camera at the scene. Further, given the sudden events that had happened which caused panic and anxiety on the part of the applicant, he might have simply given a brief description of the event to the police. 32.The account given by the applicant to the police gave the impression that the incident was caused by a momentary error of judgment on his part namely, he wrongly turned the gear to the reverse position and wrongly stepped on the accelerator. More importantly, there was only one sudden impact which caused the tragedy. However, based on what was captured on the CCTV, the repeated reversing clearly showed that it was not an event that had happened in the flash of a second. In our view the Judge was justified to describe the account given by the applicant as being untrue. However, the Judge did not sentence on the basis that the applicant had given such a false account. It is plain that the sentence was imposed because of the gravity of the factors that we have outlined earlier. 2) Applicant’s knowledge of the presence of the two victims 33.I had already addressed this issue earlier. 3) Applicant had reversed the car three times into the two victims 34.Mr Yu contended that the Judge had wrongly inferred that the car hit the deceased’s body for a third time when the expert had agreed that it was possible that the applicant had applied the brake and halted the car instead of hitting the deceased. 35.The contention is misconceived as the applicant had agreed with the summary of facts which stated that in respect of the third impact, it is likely that the car struck the deceased again and it was this which prevented the car from hitting the wall. The Judge’s statement simply followed that of the agreed facts. 36.In any event the death was caused by the first two impacts. 4) Reaction time 37.Mr Yu contended the Judge failed to consider that a driver’s reaction will depend on different circumstances, such as one’s age, reflexes, mental state, some unexpected events and other variables. 38.The question of reaction time must be judged in the context of the three impacts that we have outlined. Further as observed by this Court at the hearing, the answer to the question of the applicant’s competence and reaction is to be found in the meaning of dangerous driving. In the present case, the applicant’s standard certainly fell far below that of a competent and careful driver. 5) Panic reaction of the applicant and deliberate act 39.Mr Yu contended that the Judge had erred in neglecting the impact of the sudden failure of the lock-release button on the gear. The Judge had also treated the acts of the applicant as deliberate. 40.We have already set out the reasons of the Judge when he addressed the contention of the applicant on how the accident occurred. In our view the reasons had addressed the issue of panic reaction on the part of the applicant. The Judge had refrained, as it was not necessary for him to do, from describing the acts of the applicant as a deliberate act in the sense that he wanted to kill or injure the two victims. The Judge stated that the applicant’s actions ‘are beyond any sensible understanding’ and proceeded to sentence on the basis that the applicant’s driving skill fell far below the standard of a reasonable or competent driver. The Judge rightly observed that :
Ground 3 : The Judge erred in treating the offence of dangerous driving causing death as if it was a charge of murder 41.The applicant was originally also charged with murder (‘Count 1’). The second count of dangerous driving causing death was an alternative to Count 1. The prosecution reduced the first count to manslaughter. Eventually the prosecution accepted the applicant’s plea to dangerous driving causing death and the manslaughter charge was left on the court file. The prosecution’s case on the manslaughter charge was that of gross negligence. Mr Yu submitted that :
42.Mr Yu submitted that the Judge actually sentenced the applicant on the basis of a murder charge. 43.The difference between dangerous driving causing death and manslaughter has been noted by this Court in Law Siu Kuen at paragraph 54. However, nothing turns on this distinction in the present case. The Judge’s comment came during the sentencing hearing when the prosecution presented the Court with the manslaughter charge. From this observation, it is a quantum leap to say that the Judge had sentenced the applicant on basis of a murder charge. As pointed out by Mr Simon Tam SC, counsel for the respondent, that the Judge was simply explaining to prosecuting counsel what was required to be proved in a charge of manslaughter by gross negligence and reminded counsel the basis of his case was one of a ‘deliberate act’ rather than a ‘negligent omission’. 44.In sentencing the applicant, the Judge observed that :
Ground 4 : The Judge failed to take sufficient account of the advanced age and good driving record of the applicant 45.The Judge had plainly taken these mitigating factors into account. Conclusion 46.Accordingly the application was refused.
Mr Simon Tam, SC, SADPP of Department of Justice, for the respondent Mr Raymond Yu, instructed by C. Y. Lam & Co., assigned by Director of Legal Aid, for the applicant |
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