Hon Yeung JA (delivering the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Introduction
引言

At around 3:30 p.m. on 1 August 2008, the Applicant Lei Tin Seng was driving a goods vehicle with registration number DS 7296 along San Fung Avenue, Sheung Shui. Upon reaching the junction of San Fung Avenue and Tsun Fu Street and when the Applicant turned left into Tsun Fu Avenue, which was an one-way road, his goods vehicle suddenly turned sideways and rammed onto the pavement on the right of Tsun Fu Street. The goods vehicle driven by the Applicant first hit and damaged the iron railings at the pavement before it hit four pedestrians, namely Yeung Yu Kwong (transliteration), Fan Yuk Mui (transliteration), Chung So Ha (transliteration) and Yung Yee Man (transliteration), on the pavement.
2008年8月1日下午約3時30分，申請人李天生駕駛貨車DS 7296號沿上水新豐路行走。當到達新豐路和巡撫街交界，申請人轉左入單程路巡撫街時，貨車突然打斜衝上巡撫街右邊的行人路上。申請人駕駛的貨車先撞毀行人路邊鐵欄，再撞到行人路上的四名路人，包括楊裕光、范玉妹、鍾素霞及容綺文。

Yeung Yu Kwong was stuck between the front of the light goods vehicle and a shop. Chung So Ha and Yung Yee Man were hit by the offside front of the goods vehicle whereas Fan Yuk Mui was hit by the nearside front of the goods vehicle.
楊裕光被夾在輕型貨車車頭和一店鋪之間，鍾素霞和容綺文被貨車右車頭撞到而范玉妹則被貨車左車頭撞到。

On 3 August 2008, Yeung Yu Kwong died from his injuries. His cause of death was that he had sustained multiple traumatic injuries. The other three casualties also sustained injuries. The injuries of Fan Yuk Mui and Yung Yee Man were relatively minor and they were discharged on the same day. Chung So Ha’s injuries were rather serious and she had to be hospitalized for 7 days. They all had to return for follow-up treatments but none suffered any permanent injuries/disability.
2008年8月3日，楊裕光傷重不治，死因是身體多處創傷，其餘三名傷者亦受傷。范玉妹和容綺文傷勢較輕，可即日出院。鍾素霞則傷勢較重，需留醫7天。她們都要定時回醫院覆診，但沒有蒙受任何永久性傷殘。

The Applicant was arrested after the accident. Under caution, the Applicant said that when he was turning into Tsun Fu Street, he did try to step on the foot brake to decelerate but was not successful. On the contrary, the goods vehicle rammed onto the right pavement of Tsun Fu Street. Later when the police sought to interview the Applicant again, he indicated that he was afraid that the more he answered, the worse it would get, and so he chose not to answer any more questions. In view of the above incident, the Applicant was charged with an offence of ‘dangerous driving causing death’. The Applicant pleaded not guilty to the charge and came before District Judge Mary Yuen for trial.
意外後，申請人被拘捕，警誡後，申請人聲稱轉入巡撫街時，他曾嘗試踩腳掣減速，但不成功，而貨車反而向前衝上巡撫街右邊行人路。其後警員再想會見申請人時，申請人表示害怕越答越錯，故選擇不再回答問題。上述事件導致申請人被控危險駕駛引致他人死亡罪。申請人否認控罪並在區域法院源麗華法官席前接受審訊。

On 30 July 2009, Judge Yuen found the Applicant guilty of the charge and sentenced him to 3 years and 6 months’ imprisonment. He was also disqualified for 3 years and had to re-take the driving licence test before he could drive any vehicle. Judge Yuen took 4 years as the starting point and deducted 6 months for his clear record and being hard working, resulting in a sentence of 3 years and 6 months’ imprisonment.
2009年7月30日，源法官裁定申請人罪名成立，並判申請人入獄3年6個月，另加停牌3年及需重考車牌試才能再次駕駛車輛。源法官以4年為量刑基準，但因申請人無犯罪記錄，並勤奮工作，故將刑期扣減6個月至3年6個月。

The Applicant felt aggrieved by his conviction and sentence, and sought leave to appeal against the conviction or the sentence. In his application for leave against conviction, the Applicant was not legally represented and acted in person. But he was offered assistance by the Legal Aid Department to instruct Counsel Mr Jasper Kwan to appear for him in his application for leave to appeal against sentence. When the hearing commenced, the Applicant indicated that he would abandon his appeal against conviction. That application was then dismissed. Therefore this Court only needs to deal with his application on sentence.
申請人原不服定罪及判刑，要求獲准就定罪或判刑上訴。就定罪之申請，申請人沒有律師代表親自行事。但申請人獲法援處協助，轉聘關恆芬大律師代表，要求法庭批准他就判刑上訴。開庭時，申請人表示放棄就定罪之上訴，該申請亦遭撤銷。因此本庭只需考慮有關判刑之申請。

Grounds of Appeal
上訴理由

Mr Kwan put forward several grounds of appeal to support the application for reduction of sentence. Mr Kwan argued that the trial judge should not have sentenced the Applicant on the basis that the Applicant was reckless as to or had overlooked the safety of other road users. Mr Kwan emphasized that the trial judge’s finding that the Applicant was travelling at a speed of nearly 50 kilometres per hour was not substantiated by sufficient evidence. Mr Kwan said that the Applicant caused the accident merely because he had made a wrong estimate or was careless for a short period of time, or had at most made a wrong judgment out of a moment’s recklessness or driven his goods vehicle in a bad manner for a short period of time.
關大律師提出多點上訴理由支持減刑申請。關大律師認為原審法官不應以申請人是罔顧或漠視其他路人的安危為判刑基礎。關大律師強調原審法官指意外時，申請人之車速近每小時50公里的裁定沒有足夠證據支持。關大律師認為申請人只是錯誤估計或短暫不慎，或極其量是一時間魯莽的錯誤判斷或短暫地以不良駕駛方式駕駛其貨車，導致意外。

Mr Kwan stressed that the trial judge’s finding that the Applicant was travelling at a speed much higher that 30 kilometres per hour prior to the accident was incorrect.  Mr Kwan said that although PW1 and PW2 alleged that the speed of the Applicant’s vehicle was very high and was over 50 kilometres per hour, they made their estimates on the Applicant’s speed in a spilt of a second and therefore could be inaccurate. Mr Kwan emphasized that it had been suggested by a witness (witnesses) that the Applicant’s speed was only about 20 to 30 kilometres per hour, which was not far from the reasonable speed of 20 kilometres per hour as provided by one of the witnesses, namely the driving examiner.
關大律師強調原審法官指碰撞前申請人車速遠高於時速30公里的裁決不正確。關大律師認為雖然PW1及PW2指申請人的車速很高, 超過時速50公里，但他們是在電光火石間對申請人的車速作出估計，故可能會有偏差。關大律師強調有證人指申請人的車速只是約每小時20至30公里，而該速度和證人之一，考牌主任所指的20公里合理時速相差不遠。

Mr Kwan also emphasized that the Applicant was travelling at a speed of 20 to 30 kilometres per hour when he was crossing the white lines before the traffic lights at the junction of San Fung Avenue and Tsun Fu Street. When he changed to the slow lane on San Fung Avenue, he even decelerated. The accident happened merely because the Applicant accelerated too soon and could not control the steering of his goods vehicle.
關大律師亦強調申請人在新豐路與巡撫街的交通燈白界線時，時速只是20至30公里，而在新豐路轉入慢線時更有減速，意外只是因申請人過早加速，未能控制貨車的定向做成。

Mr Kwan submitted that considering the incident on the basis of the matters mentioned above, with respect to the yardsticks laid down in R v Cooksley [2003] 3 All ER 40, the culpability of the Applicant was at most in the middle of the scale. Therefore the starting point of 4 years was manifestly excessive. Mr Kwan emphasized that there was no additional aggravating factors in the present case but the sentence was higher than other cases of its type.
關大律師認為以上述基礎來考慮事件，並根據R v Cooksley [2003] 3 All ER 40案件列出之標準，申請人的刑責最多只是中度，因此四年的量刑基準屬明顯過高。關大律師強調本案並沒有額外加重罪責因素，但判刑卻較同類案件為重。

Discussion
討論

The undisputed evidence shows that when the Applicant’s goods vehicle was turning left into Tsun Fu Street, it suddenly moved sideways and rammed onto the right pavement, causing death and injuries to a total of four pedestrians. From the injuries of the casualties and the position of the light goods vehicle after the accident, it can be concluded that the impact was not insignificant.
無爭議的證據顯示，申請人駕駛之貨車左轉入巡撫街時，突然打斜衝上右邊行人路撞死及撞傷共四名途人。從死傷者的傷勢及輕型貨車在意外後的位置，可以得出的結論是衝撞力度不輕。

In accordance with the evidence of the witnesses, the trial judge held that the Applicant began to accelerate when he was driving into the bend, and that he was travelling at a speed much higher than 30 kilometres per hour before the collision.
原審法官根據證人的證供裁定申請人入彎位時已開始加油，而在碰撞前的車速遠高於時速30公里。

This Court agrees that the many witnesses who claimed to have eye-witnessed the accident were at different locations, made the observation at different moments, and had different estimates and feelings regarding speeds. So the accuracy of their descriptions of a vehicle’s speed on the spur of the moment was doubtful.
本庭同意聲稱目睹意外的多名證人，由於位置不同，觀察時刻有別, 加上各人對速度的評估，感受都不一樣，他們在一瞬間對車輛速度描述的準確性值得存疑。

However this Court cannot ignore the fact that the light goods vehicle driven by the Applicant was totally out of control and rammed right onto the pavement at an angle of 45 degrees when it was turning left into Tsun Fu Street. The course of the accident, the resulting casualties and the damage to the anti-bumping railings at the edge of the pavement all showed that the speed of the Applicant’s vehicle was extremely high. The Applicant said that he tried to decelerate when he was conducting the turn but was unsuccessful. It showed that his speed at the material time was definitely too high and that his goods vehicle was not in control. Otherwise he would not have felt that there was the need to decelerate.
但本庭不能忽視申請人駕駛其輕型貨車左轉入巡撫街時，完全失控，以45度角直衝上行人路。意外發生的經過和意外所導致的人命傷亡及對行人路邊防撞攔造成的損毀都顯示申請人的車速極高。申請人表示轉彎時曾試圖減速，但不成功。這亦表示他當時的車速必然是過高，貨車不受控制，否則他不會感到有需要減速。

This Court disagrees with Mr Kwan’s assertion that the accident happened simply because the Applicant accelerated too early and failed to control his vehicle. Assuming that the Applicant had merely accelerated too soon when he conducted the turn, he would not have lost control of his vehicle.
本庭不同意關大律師所指意外只是因為申請人過早加速，未能控制其車輛做成，假若申請人只是在轉彎時過早加速，他不會不能控制車輛。

The Applicant conducted a sharp turn at a high speed at the peak hours at a location that had pedestrian crossings and plenty of pedestrians. As a result, his goods vehicle was out of control and rammed onto the pavement, causing the accident. His manner of driving should be condemned.
申請人是在繁忙時段在行人眾多的地點及有行人過馬路的地方以高車速急轉彎導致貨車失控，衝上行人路造成意外。申請人的駕駛方法應受遣責。

This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.
本庭屢次強調，一輛汽車在不負責任的駕駛者手中，可以是極具殺傷力的兇器。駕駛者必需時刻緊記小心駕駛避免對無辜市民造成傷亡。

The Applicant made a sharp turn at high speed in an extremely busy street, killing/causing injuries to many innocent pedestrians and great pain and distress to the families of the victims.
申請人在極為繁忙的街道高車速急轉彎，結果失控導致多名無辜路人傷亡，對傷亡者的家庭亦必然會造成極大的困擾及傷痛。

The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.
法庭有責任發出明確信息，危險駕駛導致他人死亡的罪行必會受到嚴懲。

However the Applicant did not have the intention to drive extremely irresponsibly and dangerously over a long period of time or when the risks of killing/injuring other road users were foreseeable. Those aggravating factors as set out in R v Cooksley are not present in this case. The accident happened because the Applicant made a wrong judgment and conducted the turn at a higher than reasonable speed over that brief moment of time. His criminality is not on the high side, and does not fall within the extremely serious category.
但申請人並非故意長時間及在預計到其他道路使用者會受傷亡的情況下，以極不負責任及危險的方式駕駛車輛。本案不具R v Cooksley 案所列出之加重罪責因素。申請人是在錯誤判斷及短暫地以高於合理速度轉彎時失控，造成意外。他的刑責不屬高度刑責，更非極度嚴重刑責之類別。

The Respondent was represented by Mr David Leung, Senior Assistant Director of Public Prosecutions, who emphasized that the legislative authorities had increased the maximum penalty of dangerous driving causing death from 5 to 10 years’ imprisonment in order to reflect public abhorrence of the offence. Mr. Leung argued that the overall sentence of that category of offence should be accordingly increased. We agree that the legislature has raised the maximum penalty of the offence to reflect the concern of the general public on the offence. However it does not mean that all offences of dangerous driving causing death should attract heavier sentences. The legislature has increased the maximum penalty of the offence to indicate mainly that the original maximum penalty was inadequate to reflect the criminality in the most serious cases of this type of offence. It has not been suggested that heavy sentences should be imposed in the relative minor cases of the same type. Even though the sentence of this category of cases has been doubled, it does not follow that the overall sentences that were imposed in the past should be raised.
代表答辯人的高級刑事檢控專員梁卓然強調立法當局已將危險駕駛引致他人死亡罪行的最高刑罰由5年提升至10年，以反映社會對該罪行之厭惡。梁先生認為該類罪行之整體刑期都應有所增加。本庭同意立法當局將有關罪行的最高刑罰提高是反映社會大眾對該罪行的重視，但不表示所有危險駕駛引致他人死亡罪行的判刑都需增加。立法當局將罪行之最高刑罰提升，主要是表示原本之最高刑罸不足以反映該類罪行最嚴重情況之刑責，而非表示較輕微的同類罪行亦必需處以重刑，將以往同類案件的判刑倍增，亦非必需將以往的判刑整體提高。

This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment.
本庭不能忽視，對一名駕駛者而言，因交通意外而遭監禁本身，不論監禁時間長短，已是極為嚴苛之懲罸。

It goes without saying that for the sake of protecting the safety of the general public, any deliberate, prolonged acts of extremely dangerous driving that pose definitely foreseeable risks to other road users should be subject to severe sentences if anyone is killed in the accident. Such extremely dangerous acts of driving include drink driving, high-speed car racing on highways, speeding at a speed far above the limit over a prolonged period of time and contravention of traffic signs, jumping red lights at road junctions controlled by traffic lights and certain dangerous acts of cutting lanes at high speeds. The reason is that a normal driver can definitely foresee that it is very likely that such dangerous acts of driving will cause extremely great harm to other road users.
當然，一些故意、長時段及預計必會對其他道路使用者做成危害的極度危險駕駛行為，在意外導致有人死亡時，必需重判，以保障大眾的安全。本庭所指的極度危險駕駛行為包括酒後危險駕駛，在公路上高速賽車，長時間以遠超過車速限制的車速及違反交通標誌行駛，在交通燈管制的路口衝紅燈及一些以高速切線駕駛的危險行為。原因是一名正常駕駛者必能預計該些危險駕駛行為很大可能會對其他道路使用者做成極大之危害。

The present case did not involve any of the extremely dangerous acts of driving mentioned above. Taking into account the background of the case and the fact that the Applicant does not have any previous conviction or driving records, this Court is of the view that a sentence of 2 years’ imprisonment is sufficient to reflect his culpability in this incident and is an adequate deterrent against similar acts of dangerous driving.
本案不涉及上述所指的極度危險駕駛行為。本庭認為以本案的背景及考慮到申請人全無任何犯罪或駕駛犯錯記錄，2年監禁已足以反映在事件中申請人應負的刑責，亦足以阻嚇同類之危險駕駛行為。

The Applicant’s application for leave to appeal against sentence is granted, and treating his application as the formal appeal, this Court allows the Applicant’s appeal and reduces his sentence from 3 ½ years’ to 2 years’ imprisonment.
本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭判申請人上訴得直，其刑期由3年半減為2年。

Mr David Leung, SADPP, of Department of Justice, for the Respondent.
申請人(判刑): 由法律援助署委派文志昌律師行轉聘關恆芬大律師代表。

Mr Jasper Kwan, instructed by Messrs. Kenneth C. C. Man & Co., assigned by the Legal Aid Department, for the Applicant (on sentence).
申請人(定罪): 無律師代表，親自應訊。

The Applicant, in person, present (on conviction).
答辯人：由律政司高級助理刑事檢控專員梁卓然代表。