HKSAR v. LO SHUN KWONG ALEXANDER

HCMA722/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 722 OF 1998

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J U D G M E N T

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1. The Appellant pleaded guilty on 23rd June 1998 before Mr P.C. White, sitting at Western Magistracy to two charges, one of driving a motor vehicle with an alcohol concentration in his blood exceeding the prescribed limit, and another of reckless driving.

2. The learned Magistrate adjourned the sentencing for two weeks, and in the meantime called for a Community Service Order Report and a Probation Officer's Report. When those reports were to hand on 10th July 1998, the learned Magistrate imposed a sentence of one month imprisonment on each charge, to be served concurrently, and disqualified the Appellant from holding or obtaining any class of driving licence for a period of two years.

3. The facts of the case are that at 3:42 am on 12th January 1998, the Appellant was driving his private car west-bound on the Harcourt Road Flyover but had strayed across to the opposite carriageway. A taxi was proceeding along the same flyover in an east-bound direction and the taxi-driver noticed the Appellant on the wrong side of the road. The taxi-driver immediately applied his brakes and veered to the left in order to avoid a collision. However, the Appellant also veered to his right and this resulted in a head-on collision between the two vehicles.

4. There was another taxi which was following the first taxi. The second taxi-driver witnessed what was about to happen and also veered to the left when he saw the Appellant on the wrong side of the road, and his taxi crashed into the central concrete barrier. There were three passengers on board the first taxi, and all three of them and the driver of the first taxi, together with the Appellant and his passenger received injuries. The Appellant and his passenger were detained for a week in hospital. The taxi-driver and two of his passengers fortunately were not seriously injured and after treatment were discharged from hospital the same morning. The remaining passenger who was a 76-year old lady, and who had been sitting in the front sit next to the driver, was much more seriously injured. As a result of the accident, she broke four of her ribs and on admission to hospital, she had a cardiac arrest which resulted in her lapsing into a coma. And she remained in a coma until 24th July 1998 when she died. At the time that the learned Magistrate sentenced the Appellant, the old lady had not died but was still in a coma.

5. After the accident, tests were done on the Appellant and a breath test revealed that there were 67 micrograms of alcohol in 100 milliliters of breath when the limit is 35 micrograms of alcohol in 100 milliliters of breath. A blood specimen also revealed that it contained 156 milligrams of alcohol per 100 milliliters of blood when the limit is 80 micrograms of alcohol in 100 milliliters.

6. The Appellant is aged 37 and is single. At the time of the accident and indeed now, he resides together with his mother, and I am told he is the sole support of his mother, his father being deceased. He was a licenced foreign exchange trader but because of this case has been suspended by the Securities and Futures Commission. He was a director of a licenced leverage foreign exchange trading company but also because of this case, he has been suspended by the owner of the company.

7. I am told, and I accept, that after the accident, he has shown great remorse for causing the consequences of this accident. He intended to visit the deceased lady, but was advised against doing it. He told the probation officer and his psychiatrist that since the accident he had not drunk any alcohol or driven any vehicles, and he does not intend doing either in the future. He was a highly successful foreign exchange trader and I am told in the year 1997, he made an annual income of about $3,000,000. He is a Canadian university graduate, and lived in Canada for a number of years before returning to Hong Kong. He had, prior to this accident, no previous convictions either in Canada or in Hong Kong for criminal offences or for any traffic offences. I am satisfied that it is most unlikely that he will commit similar offences again in the future.

8. He has now appealed against his sentence and Mr Cheng Huan, leading Counsel, has basically submitted two grounds of appeal. The first is that the learned Magistrate should not have imposed a deterrent sentence on a first offender. And the second is that the learned Magistrate did not sufficiently take into account the personal circumstances of the Appellant, more particularly the devastating effects of a term of imprisonment on the career and future of this Appellant.

9. I think a third ground was also advanced by Counsel in the course of his submission that because the learned Magistrate called for a Community Service Order Report and a Probation Officer's Report and adjourned the sentencing for 14 days, he had raised, in the Appellant, a reasonable expectation of a non immediate custodial sentence, and therefore it is said that that was bad sentencing practice to then ultimately impose an immediate custodial sentence.

10. A number of cases were referred to me by Mr Cheng and also by Miss Lily Ho, appearing for the Respondent. The first case that Mr Cheng referred me to was R. v. Mak Kau [1977] HKLR 39 where Briggs, C.J. said that it is only when a driving offence came within the second category should a custodial sentence be imposed and the second category is said to be where the accident was caused by the deliberate taking of a risk or driving in an irresponsible manner.

11. Mr Cheng does not submit that this is not applicable to the present case and he accepts that, in principle, an immediate custodial sentence could be appropriate in the case of reckless driving. However, he submits that in the case of a first offender, the personal circumstances of that offender should be considered for the court to decide whether it should be imprisonment or whether it should be a suspended sentence, or indeed a Community Service Order.

12. In R. v. Boswell [1984] 3 All ER 353, the Court of Appeal in England listed a number of aggravating factors in the offence of reckless driving causing death. Of the nine aggravating factors listed, it is true to say that only the first is applicable to this case, namely, the motorist's driving was affected by the consumption of alcohol. Seven mitigating factors are listed and Counsel's submission is that almost all of these mitigating factors are applicable to the instant case.

13. It is in my view arguable whether the first of those is applicable, that is "a momentary reckless error of judgment". The last factor is also not applicable and that is where the victim is a close friend or a relative of the driver, and the driver has a strong emotional effect because of the death of that friend. The other mitigating factors are clearly applicable, namely, good driving record, good character, plea of guilty, show of genuine remorse or shock.

14. The Court of Appeal in Boswell decided that where there is one or more aggravating features, a custodial sentence is generally appropriate and in a bad case relating to the actual manner of driving (e.g. racing on the public highway or reckless driving after the consumption of alcohol) a sentence of two or more years' imprisonment should be imposed.

15. It is said that in such cases, the Community Service Order or a suspended or partly suspended sentence will seldom be appropriate.

16. Boswell was adopted by the Court of Appeal in Hong Kong in the case of Attorney General v. Chung Yim Chow [1986] HKLR 109, where the Court of Appeal held that the decision in Boswell established a valuable principle which ought equally to be applied in Hong Kong and where the conduct of the defendant cannot be described as a "one off momentary reckless error of judgment" or a "momentary inattention in failing to notice the presence of a pedestrian", or something of that kind, and where, in addition, there is any feature of aggravation in the conduct of the defendant, a custodial sentence would normally be required.

17. Two cases quoted by Miss Ho are of some assistance in deciding what the Courts should do with such cases involving reckless driving and persons being killed.

18. In Attorney General v. Lau Chiu Tak & Another [1984] HKLR 23 the Court of Appeal said that even though they accepted that 'a deterrent sentence' should not be imposed on a first offender that did not mean that the deterrent element in a sentence is to be totally ignored, and the court must always bear in mind that undue leniency may encourage others to commit similar offences.

19. In R. v. Steel [1993] 96 CAR 121, the Court of Appeal in England said that :

"When sentencing an offender in cases of reckless driving where personal injury has been caused, the trial judge must consider and give full weight to all the facts and circumstances, including the gravity of the consequences of the driving to members of the public. A driver who drives recklessly takes his chances as to the consequences."

In that case, a young man of 25 had driven a powerful car at an excessive speed on a wet surface, with a blood alcohol concentration of nearly twice the prescribed limit. The car went out of control and very seriously injured a motor-cyclist on his right side of the road. A sentence of 15 months' immediate imprisonment was imposed by the Crown Court at Reading. This sentence was reduced on appeal by the Court of Appeal to 12 months in view of the mitigating circumstances which were a plea of guilty, genuine remorse and intention never to drive again.

20. In Attorney General v. Chan Chun Yuen [1991] 1 HKC 228 the Court of Appeal in Hong Kong was dealing with an appellant who was involved in an accident in which he knocked down and killed a man. Before the accident, he had drunk a good deal of brandy after having been out with his girlfriend. In mitigation it was submitted that the respondent, who was aged 50 and married, was a self-made merchant who was kind and generous. At the time of the accident, he was in desperate financial stress and had intended to commit suicide by driving his car into the sea. His wife supported him and he was remorseful. The Court of Appeal in dealing with a review of sentence by the Attorney General said that the appropriate sentence was two years' imprisonment.

21. In that case, counsel for the Attorney General had submitted that there were five aggravating features. Of those five, one is clearly applicable to the instant case, namely, the driving was grossly impaired by alcohol. The second is arguably applicable, which is the driving with a conscious realization that his faculties were grossly impaired and his clear realization that he had little or no effective control of the vehicle.

22. In my judgment, the present Appellant, even if he was not alive to the realization that his faculties were grossly impaired, should have been under that realization and should have realized that if he drove his vehicle, he was exposing himself and his passenger, pedestrians and other road users to extreme danger.

23. I have been asked by Counsel for both sides to disregard the death of the woman which occurred after the sentencing had been completed. Because I am looking at the sentence imposed by the learned Magistrate afresh, in my view, I am entitled to and should take into account the fact that because of this accident, the old lady died.

24. When the learned Magistrate adjourned sentence for reports, in my judgment, he made it quite clear to the Appellant that the Appellant could not expect, because he was calling for these reports, a non-immediate custodial sentence. This is what the learned Magistrate said to the Appellant :

"..... Custody is still under consideration and you ought not to think by that adjournment for that purpose of seeking reports that I am not still considering custody. Custody is under consideration, but I'll resolve that matter after I receive the reports, ....."

So, in my view, all the cases that Mr Cheng quoted to me about it being a bad sentencing practice to raise a reasonable expectation in the defendant of a non-custodial sentence and then passing an immediate custodial sentence are not applicable to the instant case.

25. I am aware that a term of imprisonment upon this Appellant will have devastating and long term effects on him. But I have to bear in mind what the Court of Appeal in Chan Chun Yuen, which I mentioned earlier, quoting the Court in R. v. Dennis Chiu Tat Shing Crim. App. 238/1984, said that it is the Court's duty to express society's repugnance at the circumstances of the offence in that case where the appellant, also because of being in an intoxicated state, had knocked down and killed a policeman manning a road block on Princess Margaret Road.

26. In my view, a very strong and clear message must be sent to the public that anyone who drinks, especially if he drinks excessively, and then drives and kills, or seriously injures another person is facing an immediate custodial sentence subject to any mitigating factors that he may have.

27. In my judgment, the sentence of one month imprisonment imposed by the learned Magistrate is manifestly inadequate. I am minded to allow the appeal by increasing the sentence but have decided against it to be fair to the Appellant who obviously launched this appeal upon legal advice, and it cannot be said that the grounds advanced by Mr Cheng are not arguable grounds of appeal.

28. I do urge, however, Magistrates who deal with this sort of offences in the future involving driving after drinking excessively and where death or serious injuries are caused, to consider, subject to any mitigating factors, sentences in the range of three to six months' immediate imprisonment. The appeal is dismissed.