SECRETARY FOR JUSTICE v. CHENG TSZ HIN

CAAR 2/2019

[2020] HKCA 45

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 2 OF 2019

(ON REVIEW FROM DCCC NO 66 of 2019)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  On 11 July 2019, the respondent appeared before District Judge K Lo (“the judge”) in the District Court and pleaded guilty to one charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374. On 1 August 2019, the respondent was sentenced to 6 months’ imprisonment and was ordered to be disqualified from driving for 5 years and to attend a driving improvement course.

2.  On 28 August 2019, the Secretary for Justice applied, pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, for leave to review the sentence passed on the respondent.  Leave was granted by Poon Acting CJHC, as he then was, on the same day.

3.  At the hearing of the application we refused it.  These are our reasons for so doing. 

The background to the offence

4.  The Amended Summary of Facts admitted by the respondent and used for the purpose of his sentencing revealed that on 18 June 2018 at around 03:02 hours, the respondent was driving a taxi (“Taxi A”) when he collided with another taxi (“Taxi B”) at the junction of Nathan Road (Northbound) and Kansu Street, Kowloon.  A yellow hatched box was painted on the road in the centre of this junction and the junction was controlled by traffic lights.

5.  The respondent’s taxi was travelling in the centre lane of a three-lane carriageway separated by centre lines.  The right lane allowed drivers to drive straight ahead or turn right whilst cars travelling in the centre and left lanes could drive only straight ahead.  The weather was fine, the road surface was dry and the traffic volume was normal. 

6.  The speed limit was 50 km/h.  Dr Tao Chi Hang, a forensic scientist, examined CCTV footage which captured both taxis and confirmed that both were travelling within the speed limit at the time of the accident.  The respondent’s taxi, Taxi A, was being driven at 21 – 22 km/h before the impact whereas the other taxi, Taxi B, was being driven at 50 km/h before the collision and 33 km/h after the collision.

7.  Taxi B was being driven slightly behind Taxi A in the right lane but was not intending to turn right.  Instead, its driver was intending to proceed straight ahead through the junction.  Both taxis were, therefore, driving through the junction and at the time of the accident they had a green light for their direction of travel.  When both taxis were in the middle of the yellow hatched box at the centre of the junction, the respondent suddenly swerved his taxi to the right and hit the nearside of Taxi B. 

8.  As a result of the collision, the driver of Taxi B lost control of his vehicle.  However, instead of Taxi B veering off to the right, where it might have caused less or even no harm, it turned 90 degrees anti-clockwise and travelled to the pavement on the left side of Nathan Road, which was the side of the road on which the two vehicles were being driven. There, Taxi B hit and crashed through the guard rails that ran along the perimeter of the pavement and eventually struck a pedestrian, trapping him against the roller gate of a shop.  The pedestrian, a male aged 56 years-old, suffered multiple injuries from which he died.  A passenger on Taxi B also suffered minor injuries but the driver of the taxi, it seems, fortuitously escaped unscathed.

9.  In a subsequent video record of interview, the respondent said he had had two years of driving experience but only a few days of experience in driving a taxi.  He had checked his taxi before driving it that day and it was functioning properly.  He admitted that at the material time he was driving in the centre lane and he intended to cut to the right when he reached the hatched yellow box.  Although he did not use his taxi’s indicators, he said he had checked the offside mirror and then made a shoulder check before he steered to the right but Taxi B came at a rapid speed and collided with his taxi.   

10.  The Amended Summary of Facts concluded with the following paragraph:

“10. By making turns without paying attention to the road conditions at the Location, D caused the death of Yau Chi-man, Andy by driving Taxi A on a road dangerously at the material time.”[1]

The mitigation

11.  Counsel for the respondent, Mr Wong Ting Kwong, who also appeared for the respondent on the present application, informed the judge that the respondent was 24 years of age, single and with a clear record. His parents had been divorced for some time and he lived with his mother and elder brother in a public housing unit in Wong Tai Sin. His father lived in the Mainland. The respondent had enrolled in an electrical engineering course at the Institute of Vocational Training but dropped out of it when he encountered difficulties with the English language.

12.  In order to earn a stable income to help support his family he decided to become a taxi driver. He had obtained his driving licence as a taxi driver in May 2018 but as at the date of the accident he had worked as a taxi driver for just 5 days.  Prior to obtaining his taxi driver’s licence he had only limited driving experience. 

13.  On the day of the offence, the respondent was working a shift from 16:30 hours on 17 June to 04:30 hours on 18 June and so he had been working for approximately 10.5 hours when the accident occurred just after 03:00 hours.  At that time he was driving a passenger from Jordan to Lam Tin. 

14.  Mr Wong explained how, on his instructions, the accident happened.  He said that when the respondent was approaching the junction, his passenger suddenly yelled at him, telling him to turn right.  The respondent reacted by immediately swerving his taxi to the right, in the words of his counsel “without having had careful and sufficient observation from the oncoming traffic behind”[2], thereby causing him to collide with the other taxi. 

15.  Mr Wong submitted that the respondent had committed the offence out of poor judgment and recklessness, coupled with the fact that he was unfamiliar with the road and traffic.  Although recognising that the offence is very serious in its nature his counsel submitted that the respondent was not driving at an excessive speed or in a deliberately risk-taking manner and there were no aggravating factors present. 

16.  His counsel referred to a number of cases which set out the relevant sentencing principles for the offence of dangerous driving causing death.  For the purpose of determining an appropriate starting point his counsel relied on one case in particular, HKSAR v Lam Ying Yu[3].  This case involved a driver who failed to comply with a stop sign at a road junction and collided with a taxi which in turn hit three workers on the road, killing one of them and injuring two others.  The Court of Appeal held that by not concentrating and failing to keep a proper lookout, the driver’s dangerous driving placed her culpability at the higher end of the least culpable dangerous driving range for which the appropriate sentence was 18 months’ imprisonment.  Mr Wong argued that, similarly, the respondent’s driving should be regarded as falling within the least culpable category of dangerous driving and that an appropriate starting point for him was also 18 months’ imprisonment.

17.  In the present case, the respondent was so upset after the accident for what he had done that he had to seek psychiatric treatment on 21 March 2019.  His Mental State Examination revealed that he was suffering from “a depressed mood with a sense of guilt.”[4] He was diagnosed with Post Traumatic Stress Disorder (“PTSD”) and was prescribed with anti-depressant medication.

18.  His counsel also emphasised the respondent’s clear driving record, deep genuine remorse and the plea of guilty as the main elements of his mitigation.  

The judge’s Reasons for Sentence

19.  The judge referred to leading case authorities which set out the relevant sentencing principles for this offence and she acknowledged that when sentencing for this offence prominence is given to the culpability of the driving and the need for deterrent sentences.

20.  She then turned to her assessment of the respondent’s culpability.  She referred to the reports of the forensic scientist, Dr Tao, and noted that the speed at which Taxi B was being driven before the accident was 50 km/hr and after the collision was 33 km/hr. She then said:

“30. No doubt the defendant was reckless in not having a proper lookout for the traffic on his right side when he swerved to the right while his taxi was in the yellow box at the road junction.  This resulted in the collision between the two taxis but what followed next was something totally unexpected, at least from the defendant’s perspective, ie that Kong’s taxi had as a result lost control and ran across the two other lanes and rushed onto the pavement and struck the deceased, who died as a result.

31. In this case, the culpability of the defendant in my view is in the least culpable dangerous driving category as referred to in the Cooksley’s case, but, of course, the effect of which has resulted in disproportionate consequence causing death to the deceased as well as great stress to his family, having lost their very dear one.

…

34. This court accepts that the accident resulted partly from the defendant being an inexperienced taxi driver when suddenly confronted after driving for 11 hours by a passenger who yelled at him to immediately turn right to take the shortest route, he had made the wrong decision of following such a request, without paying proper attention to the traffic.  The relatively high speed of Kong’s taxi catching up from behind no doubt contributed to the appalling result that followed.”[5]

21.  The judge referred to the matters to which she would have to have regard in determining her starting point.  She started by noting the consequence of the respondent’s dangerous driving, saying:

“32. This court of course has to consider the tragic result of this accident, it took away the life of the deceased and caused great stress to his family.  In the sentencing exercise, retribution, denunciation and deterrence must be considered and given sufficient weight.”[6]

22.  She was conscious that this had to be balanced against the personal circumstances of the respondent.  She noted his age, clear record, lack of experience as a taxi driver and that he was suffering from PTSD. 

23.  She concluded her balancing of all these factors by saying:

“37. It is very sad that the deceased lost his life and great distress to his family because of the misdeed of the defendant, but at the same time, because of the seriousness of the nature of this offence, the defendant, although a fresh offender, lost his chance for other sentencing option other than an immediate custodial sentence.  The defendant has indicated his great remorse in his letter to this court and the court accepted that it is genuine.

38. Considering all the circumstances of this case and predominantly, as said by the Court of Appeal in previous cases, the culpability of the defendant, the court adopts a 15 months’ sentencing starting point for the defendant in this case.”[7]

24.  The judge gave a full one third discount for the respondent’s plea of guilty which reduced the starting point to 10 months’ imprisonment.  She found the fact of the respondent suffering from PTSD to be a valid mitigating ground and reduced the sentence to 8 months’ imprisonment.  Lastly, the judge recognized the clear record and the perfect driving record of the respondent and reduced the starting point by a further 2 months. The final sentence imposed on the respondent was 6 months’ imprisonment with an order that the respondent be disqualified from driving for 5 years and that he attend and complete a driving improvement course.

The application to review the sentence

25.  The application to review was made on the basis that part of the sentence, being the custodial sentence imposed on the respondent, was wrong in principle and/or manifestly inadequate.  The application was based on the following four grounds:

(i) the sentence failed to sufficiently reflect the respondent’s culpability (Ground 1);

(ii) the discount of 2 months based on the “perfect driving record” and “clear record” of the respondent was wrong in principle (Ground 2);

(iii) the discount of 2 months for the fact that the respondent suffered from PTSD was wrong in principle (Ground 3); and

(iv) the resultant sentence imposed was in itself wrong in principle and/or manifestly inadequate (Ground 4).

(i) The respondent’s culpability

26.  In support of Ground 1, Ms Vinci Lam submitted that the respondent was, at the material time, driving in an irresponsible manner and the culpability of his driving misconduct laid in the following:

(i) he swerved sharply to the right, when he was travelling along the centre lane of a three-lane carriageway and was in the yellow hatched box at the road junction;

(ii) he failed to follow the road markings as turning right was prohibited for vehicles in the centre lane;

(iii) he made a right turn very sharply;

(iv) other vehicles travelling in the right lane would not be expecting vehicles cutting into their lane from the centre lane;

(v) he failed to check the road condition and keep a proper look out when he made the right turn;

(vi) he failed to use his indicator lights before turning right; and

(vii) given the respondent’s very limited experience in driving and his unfamiliarity with the roads, he should have been more cautious and attentive in his driving.

27.  Ms Lam submitted that the judge erred in finding that Taxi B’s high speed contributed to the accident.  Taxi B was in full compliance with the road markings and speed limit and no fault could be reasonably attributed to its driver or be regarded as a reason to lessen the respondent’s culpability. 

28.  She also argued that the judge placed too much weight on the mitigation submission that the accident partly resulted from the respondent being an inexperienced driver who was confronted with a sudden request by his passenger. 

29.  Having regard to all these matters, she submitted that the starting point of 15 months’ imprisonment failed to sufficiently reflect the culpability of the respondent, the harm brought about by his driving misconduct and the need to impose a deterrent sentence.

(ii) The discount for a clear driving record

30.  In support of Ground 2, Ms Lam submitted that the Court of Appeal judgment in Secretary for Justice v Liu Kwok Chun[8], on which the judge had relied in awarding a discount for the respondent’s clear record, merely acknowledged that a good driving record and the absence of previous convictions were mitigating factors but it did not endorse a practice of awarding a specific discount for them.  Ms Lam submitted that a clear driving record, other aspects of “good character” and remorse must not be given undue prominence and are, in law subsumed into the one third discount that is awarded for a plea of guilty.  In any event, these mitigating factors are not a sufficient reason for not imposing a deterrent sentence.  A reduction of 2 months beyond the discount given for the guilty plea was wrong in principle and/or unduly lenient.

(iii) Discount for the respondent’s PTSD

31.  In support of Ground 3, Ms Lam submitted that only very serious or life changing injury suffered by the respondent should have a significant effect on the sentence.  The PTSD suffered by the respondent was not in that category.  The respondent only sought medical assistance 9 months after the accident and was found to be in a depressed mood with a sense of guilt.  Ms Lam submitted that these emotions are akin to a person feeling remorseful for what he had done and courts should not attach much weight to it.  Feelings of guilt, and possibly of depression, are a natural consequence of the harm caused by the driving misconduct and do not justify a reduction of sentence.

(iv) Resultant sentence manifestly inadequate 

32.  Regarding Ground 4, Ms Lam submitted that the total reduction from the original starting point of 15 months’ imprisonment adopted by the judge was 9 months, representing a discount of 60% and was, in the circumstances, a manifestly excessive discount.  Ms Lam referred this court to a number of authorities to show that a sentence of 6 months’ imprisonment upon a plea is out of line with sentences passed in similar cases.  In support of this proposition she relied on the following cases:

(a) HKSAR v Lam Ying Yu[9]: The defendant drove within the speed limit through a stop sign without stopping and collided with a taxi.  The taxi ran into three road workers causing serious injuries to one of them who later died.  The defendant’s culpability was in failing to keep a proper lookout.  Without any serious aggravating factor being identified, the defendant, on appeal, was sentenced to 18 months’ imprisonment;

(b) HKSAR v Lei Tin Seng[10]: The defendant drove a light goods vehicle at an excessive speed when he was making a sharp turn in an extremely busy street at peak hour.  The vehicle rammed into a pavement and hit four pedestrians causing death to one pedestrian and injuries to the others. The defendant’s culpability was in making an error of judgment with no aggravating features present in his driving.  On appeal, the starting point was reduced to 2 years’ imprisonment but was commented by the Court of Appeal in HKSAR v Chan Kwok Fai to be “remarkably light on the facts”[11].

33.  Ms Lam submitted that the sentence imposed by the judge in the present case was unduly lenient as it fell outside the range of sentences which the judge, when applying her mind to all the relevant factors, could reasonably consider appropriate.

The respondent’s reply

34.  Mr Wong submitted that the Court of Appeal should not interfere with the sentence unless it had been shown that there was some error of principle in the judge’s sentence, which would cause public confidence to be damaged if the sentence was not altered.  Even if the court considered the sentence to be unduly lenient, it still has the discretion on whether to exercise its power to alter the original sentence.

35.  Replying to the applicant’s Ground 1, Mr Wong submitted that the judge clearly took into account every aspect of the case when she sentenced the respondent.  Mr Wong argued that whilst the respondent’s driving misconduct resulted in the accident, the manner of his driving was not the type of “irresponsible behaviour” within the meaning of that term as explained in R v Cooksley[12].

36.  Mr Wong further argued that the judge was correct in principle to accept the explanation as to how the accident happened.  Furthermore, on that explanation the judge was correct to find that Taxi B’s “relatively” high speed contributed to the outcome of the accident. 

37.  Mr Wong submitted that the judge was alive to the serious nature of the offence and that the sentence should contain a strong element of deterrence thereby rendering as necessary the imposition of an immediate custodial sentence.  Mr Wong, argued that the judge was correct to find that the respondent’s offending was at the least culpable dangerous driving category and the appropriate starting point should be between 12 and 18 months’ imprisonment.  The starting point of 15 months’ imprisonment imposed on the respondent was well within the range prescribed by the authorities and correct in principle.

38.  In reply to Ground 2, Mr Wong submitted that even though remorse and previous good character are normally subsumed into the one third discount that is awarded for the guilty plea, a clear criminal record together with a perfect driving record have been recognized by the courts to be an additional mitigating factor and in this respect he relied on Liu Kwok Chun.  He submitted that the judge was entitled to grant a discount of 2 months for this factor.

39.  In respect of Ground 3, Mr Wong referred to the remarks made by the English Court of Appeal in Cooksley:

“The injuries can make the sentence of imprisonment a greater punishment than usual. His injuries are also in themselves a punishment and should bring home to the offender, in the most direct possible way, what can be the consequences of dangerous driving.”[13]

40.  Mr Wong submitted that the PTSD suffered by the respondent, being a serious psychiatric injury, could bring home to the respondent the possible consequences of dangerous driving than that of most physical injuries.  It was therefore reasonable for the judge to recognize such effect of the respondent’s PTSD in relation to the retribution and deterrence element and to grant a further 2 months’ discount.

41.  Mr Wong submitted that even if the sentence imposed by the judge appeared to be lenient, it could never be regarded as manifestly inadequate or unduly lenient.  Finally, Mr Wong reminded us that the respondent has now undergone the additional stress of having to be sentenced twice and his discharge date on his present sentence was 10 November 2019 – a mere 4 days after the hearing of this application.

Discussion

42.  As Mr Wong challenged whether this is an appropriate case for the use of the section 81B power to review the respondent’s sentence that is granted to the Court of Appeal under the Criminal Procedure Ordinance, it is helpful to revisit the legal principles that underlie this very special provision.

The legal principles applicable to a Secretary for Justice’s review of sentence

43.  The Secretary for Justice’s power to review an offender’s sentence was recently discussed by the Court of Final Appeal in its judgment in Secretary for Justice v Wong Chi Fung[14]. From the speech of the Attorney General in moving the bill, the court derived the following legislative purposes of sections 81A and 81B:

“… to maintain uniformity of sentence and to avoid the injustice caused by substantial disparity in sentences imposed by different magistrates and judges dealing with similar offences.”[15]

44.  It serves these purposes through enabling the Court of Appeal to correct important legal errors in the sentencing process and to expound upon sentencing principles.  But, it also serves the very important purpose of maintaining public confidence in the administration of criminal justice.

45.  The importance of uniformity of sentence and how it contributes to public confidence in the sentencing process was discussed by McHugh J in the Australian High Court’s judgment in Everett v R.  In his separate concurring judgment he said:

“The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.”[16]

46.  These various purposes of the power and that it is regarded as an exceptional power, can be seen in what was said by Lord Lane CJ, in Attorney General’s Reference No 5 of 1989:

“He submits that before this Court grants an application of this sort by the Attorney General, it must be shown that there was some error in principle in the judge’s sentence. It must be shown, he said, that in the absence of the sentence being altered by this Court, public confidence would be damaged. He submits finally on this aspect of the case, that the Court should only grant leave in exceptional circumstances and not in the borderline type of case.

With those submissions we agree entirely.”[17]

47.  One of the reasons the power is regarded as exceptional is because, as the Court of Final Appeal noted in Wong Chi Fung, its ambit “is subject also, as a matter of legal context, to the constitutionally protected right against double jeopardy” and, “whilst an increase of sentence is not incompatible with the concept of double jeopardy”, this explains why “as a matter of practice the Court of Appeal customarily makes allowance for the concept when increasing a sentence on review by applying a discount to the increased sentence.”[18] This exposure of a defendant to the risk of having his sentence increased is the feature of the power which makes it so exceptional and which has prompted Courts of Appeal to be careful in exercising it.

48.  The basis for empowering the Court of Appeal to intervene is laid down in section 81B and is that the Court of Appeal “thinks that the sentence was not authorized by law, was wrong in principle or was manifestly excessive or manifestly inadequate”.

49.  But the approach the Court of Appeal takes to determining whether manifest inadequacy is satisfied is a stricter one than that employed in a convicted defendant’s sentence appeal.  In Wong Chi Fung the Court of Final Appeal emphasized that the section 81A power does not confer on the Secretary for Justice “an analogous right to that of a convicted person appealing against sentence.”[19] It affirmed the following statement by Rigby CJ in Re Application for Review of Sentences by Attorney General:

“For my part, I am satisfied that there is a substantial distinction and I adhere to the view that … a far more stringent test should be applied by the Full Court in considering an application by the Attorney General for leave to apply for review of sentence on the grounds of manifest inadequacy than the test required or imposed by the same court in an appeal by a convicted person against sentence.”[20]

50.  In Attorney General v Lau Chiu Tak and Another[21], Sir Alan Huggins VP contrasted the difference in approach the Court of Appeal would take when dealing with a review of sentence from that it would take in a defendant’s appeal against sentence based on manifest excessiveness.  After discussing the two terms of “manifestly inadequate” and “manifestly excessive”, he said:

“It follows from what we have just said that the test of manifest inadequacy is no different from the test of manifest excessiveness and that the same test must be applied whether the case happens to be an appeal brought by the appellant or a review at the instance of the Attorney General. Nevertheless, we emphasize that this court will be much more easily persuaded that a sentence is manifestly excessive than that it is manifestly inadequate - not because the test is different but because there is a presumption in favorem libertatis which the Crown has to overcome: see Reg. v. Bitter [1981] 27 SASR 183, 185.”[22]

51.  The Court of Final Appeal in Wong Chi Fung expanded upon what this stricter approach would mean when the Court of Appeal is examining a trial judge’s reasons for sentence, saying:

“62. It is also not open to the Court of Appeal in a review of sentence to ascribe a different weight to a factor properly taken into account by the sentencing judge in arriving at a sentence that is otherwise within the range of sentences appropriate for the offence. If the judge has failed to take a relevant matter into account or has taken into account an irrelevant factor, that is an error of principle. However, the relative weight the sentencing judge ascribes to each relevant factor is a matter within the judge's discretion and, unless that exercise results in the imposition of a sentence that is manifestly inadequate, the relative weight attributed to each individual relevant factor is a matter for the judge. Save where it concludes that the sentence is manifestly inadequate, the Court of Appeal is not entitled to ascribe more or less weight to a relevant factor than did the sentencing court.

63. … Unless the sentence imposed is manifestly inadequate or excessive, the Court of Appeal may not review the sentence on the basis that, had it been the sentencing court, it would have ascribed a different weight to a particular relevant factor. This limitation is simply a reflection of the statutory grounds for review of sentence laid down in s.81A.”[23]

52.  Similarly, in Attorney General’s Reference No 4 of 1989, Lord Lane CJ emphasized that it cannot have been the intention of Parliament by the enactment of this power to review a sentence:

“… to subject defendants to the risk of having their sentences increased - with all the anxiety that that naturally gives rise to - merely because in the opinion of this Court the sentence was less than this Court would have imposed.”[24]

53.  It is important to remember that the Secretary for Justice’s power does not exist in order to deny sentencing courts the discretion to exercise leniency in appropriate cases or from discouraging or inhibiting them from so doing.  In Attorney General’s Reference No 4 of 1989, Lord Lane CJ said:

“However, it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.” [25]

54.  The importance of a sentencing court’s discretion to impose a lenient sentence was also emphasized by Sir Alan Huggins VP in Lau Chiu Tak, when he said:

“The power of review was conferred to correct errors in exceptional cases and the court will be jealous to prevent encroachment on the discretion of judges and magistrates to impose a lenient sentence as they may think appropriate, provided that the sentence is one which in all the circumstances could reasonably be passed.[26]

55.  Although there are a number of bases for the exercise of the power, the reality is that sentences are rarely found to be not authorized by law and the application to review the sentence will usually have been made because the sentence being reviewed is said to be manifestly inadequate.

56.  In the equivalent English legislation from which our sections 81A and 81B were taken, the term that is used is not manifestly inadequate but is “unduly lenient”.  In Attorney General’s Reference No 4 of 1989, Lord Lane CJ explained what this term meant:

“A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.”[27]

This definition is applied by our Court of Appeal to the term “manifestly inadequate”[28].

57.  Of course, it is not always easy to identify a range of sentence for a particular offence and this has been another reason why Courts of Appeal have approached the exercise of the sentencing review power with caution, treating it as only to be deployed in exceptional circumstances.  This point was expanded upon by McHugh J in Everett when he said:

“If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave.” [29]

58.  Finally, and this is very important, even if the Court of Appeal concludes the sentence is unduly lenient, it has a discretion as to whether it should use its powers to alter the sentence[30]. As to when the Court of Appeal might choose not to alter the sentence, Lord Lane CJ, in his judgment in Attorney General’s Reference No 4 of 1989, said:

“Without attempting an exhaustive definition of the circumstances in which this Court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the Court ought to be concerned.”[31]

59.  The discretion whether or not to alter the sentence only arises once the Court of Appeal thinks that the sentence under review is erroneous for one of the section 81B reasons; that is, because it “was not authorized by law, was wrong in principle or was manifestly excessive or manifestly inadequate”. Its manifest excessiveness or inadequacy may be due to the fact that the sentence is not authorized by law or is wrong in principle but it can be due to another reason.

60.  In exercising its discretion as to whether it alters the sentence, the Court of Appeal will have regard to whether the public interest requires correction of the sentence.  This was adverted to by Lord Lane CJ in Attorney General’s Reference No 5 of 1989 in his remarks quoted at paragraph 46 of this judgment.  It is, we apprehend, what would elevate a sentence under review into an “exceptional case” to use the words of Sir Alan Huggins VP in Lau Chiu Tak.

61.  In determining whether the public interest requires correction of the sentence, the Court of Appeal will be mindful of the fact that the sentencing process is a crucial, though at times controversial, element of the criminal justice system.  Maintaining public confidence in the sentencing element of the system is key to maintaining public confidence in the administration of criminal justice.  The importance of maintaining public confidence in the sentencing process was emphasized by Lord Bingham CJ in R v Howells when he said:

“Courts cannot and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system.”[32]

62.  The question of whether allowing the sentence to remain unaltered would damage public confidence in the criminal justice system brings into play the views of the victim and the victim’s family and the public. In Attorney General’s Reference No 3 of 1999, Lord Steyn eloquently spoke of the need of the criminal law to ensure fairness to all sides.  Explaining how this is achieved he said:

“In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public”[33]

63.  Thus, proving inadequacy of sentence does not automatically mean the Court of Appeal must intervene and must correct the sentence.  It will only do so when it is necessary in the interests of justice.  Determining whether it is in the interests of justice involves balancing Lord Steyn’s triangulation of interests of all those affected by the criminal justice process.  In doing so great regard will, of course, be paid to the interests of the victim and the victim’s family but their interests will not necessarily be synonymous with the public interest and may not be determinative of the interests of justice.  As much as the Court of Appeal may be sympathetic to all that the victim and the victim’s family has had to endure as a consequence of the offender’s criminal conduct, and this is especially so when a death has resulted, it must focus on the relevant legal principles when determining this very important issue. 

The culpability of the respondent’s driving

64.  Against this backdrop of the relevant legal principles, we turn to a consideration of the application before us. It is helpful to commence our discussion of this application by reminding ourselves of what is not being challenged by the applicant.  The most important thing that is not being challenged is the respondent’s explanation of how the accident occurred.  The respondent’s explanation is that he was suddenly shouted at by his passenger to turn right.  This may well have startled him but, in any event, it prompted him to respond in what appears to be an instinctive reaction to immediately swerve his vehicle to the right. This explanation is clearly inconsistent with a considered reaction in which time is taken to check the traffic conditions to make sure that it is safe to do so.

65.  Why did the respondent react in such an incautious and unconsidered manner?  The answer to this question, in all probability, lies in the extent of his driving experience and the circumstances in which he found himself.  He was not only at the beginning of his career as a taxi driver he was also significantly inexperienced as a driver.  He did not own a vehicle and, since obtaining his driving licence had only driven occasionally when he was able to have access to the motor vehicles of friends.  Then, there was the element of context and by this we are referring to the fact that the accident occurred at 03:00 hours when traffic was light and the respondent was entering the final hour of his 12-hour shift.

66.  All of this is consistent with what was admitted by the respondent in the Amended Summary of Facts, namely that the respondent made a turn “without paying attention to the road conditions.”[34] It is this failure which the Amended Summary of Facts says caused the death of the victim and which constituted dangerous driving.

67.  In respect of this context and given the judge’s acceptance of the explanation of the reason for the accident, Ms Lam accepted that the judge was correct to assess the respondent’s dangerous driving as falling within the least culpable range which called for a sentence of 12-18 months’ imprisonment.

68.  The judge assessed the culpability of the respondent’s dangerous driving as falling at the mid-point of this range, that is, 15 months’ imprisonment.  Ms Lam argued that in so doing the judge erred and she should have assessed it as falling at the top of this range and adopted a starting point of 17-18 months’ imprisonment.

69.  In order to support the submission that the judge’s assessment of the culpability of the respondent’s driving was erroneous, Ms Lam broke down the dangerous driving into a number of component elements.  This, with respect, resulted in a somewhat artificial analysis that was rather distant from the reality of the situation.  That reality we have already described and it is encapsulated by the succinct phrase of the Amended Summary of Facts that the respondent drove dangerously by turning his vehicle “without paying attention to the road condition”.

70.  Ms Lam also argued that the judge lessened the culpability of the respondent by implicitly ascribing some degree of fault for the accident to the speed at which Taxi B was being driven.  We do not understand the judge’s comment in the way Ms Lam has interpreted it.

71.  The judge, it is true, did refer to the speed at which Taxi B was being driven.  However, her comment was not directed at the cause of the accident but rather at its outcome.  The point the judge was making was that had Taxi B, which was being driven at the very top of the speed limit, been driven at a slower speed, the outcome of the accident may well have been different.  One would expect that driving into Taxi B in the way the respondent did would push it towards the opposite side of Nathan Road.  However, it did the opposite.  It caused Taxi B to spin around and travel across the side of Nathan Road in which it had been travelling and to crash into guard rails with such force that it simply plowed through them.  It seems to us that, in trying to understand why the collision led to the tragic death of the victim, the judge’s comment was entirely justified. 

72.  Assessing the respondent’s level of culpability for his dangerous driving was an analytical process which the judge conscientiously undertook. We can find nothing in her Reasons for Sentence which evidences any error by her in this process.  Indeed, quite the opposite.  Her analysis of the facts was careful and well reasoned.  On the facts as she found them and on the cause of the accident which she accepted, neither of which was challenged by Ms Lam, she was correct to find that the respondent’s culpability fell within the least culpable band.  Placing it at the mid-point of this band cannot be said to be erroneous. Indeed, some may argue that she could have assessed it closer to the low end of that band.

73.  However, before leaving the judge’s analysis of the culpability of the respondent, which was the main focus of the application for review, we wish to say that sections 81A and 81B were not enacted to correct what may amount to no more than a potentially slightly erroneous factual analysis which resulted in a potentially slightly more lenient sentence than should have been imposed. A potential leniency of 2-3 months in the starting point adopted by a trial judge comes nowhere close to justifying the use of this exceptional power.  As we have demonstrated from our analysis of the case law, the section 81A power of review was designed for important disputes of sentencing principle to be resolved and major mistakes in the exercise of sentencing discretion, which if left uncorrected could cause public confidence to be eroded in the courts and the administration of criminal justice. Had this review only been concerned with the assessment by the judge of the culpability of the respondent and by that assessment the identification of an appropriate starting point within the least culpable band, then we would have had no hesitation in refusing it.  However, the applicant relied on other grounds which involve issues of sentencing principle, and it is to these that we now turn. 

The other grounds of review

74.  The other grounds of the application to review sentence were really only two, namely that the judge erred in the additional discounts she awarded the respondent, namely, 2 months for his clear record and 2 months for his PTSD.  We agree that the judge erred in discounting the respondent’s sentence for his clear record.  There was nothing special about the respondent’s character.  A clear criminal record, absent positive good character, which was not claimed for the respondent, does not entitle an offender, especially one as young as this respondent, to a discount beyond the one third which he receives for his plea of guilty.  As to the respondent’s driving record, we note that the respondent had been a driver for a very short period of time and within that period of time had only driven occasionally. His clear driving record, in these circumstances, was of little significance.  In awarding the respondent an additional discount of 2 months for these matters the judge erred.

75.  The position with respect to the respondent’s PTSD is not so easily resolved.  It was Ms Lam’s submission that it should be treated as a medical condition of the respondent which can properly be treated in prison and even if it was caused by the accident then the respondent is in the category of a criminal who has been injured by his own criminal conduct.  However one regards it, she argued, it does not entitle the respondent to any additional discount.  Alternatively, she argued, it is really just a more severe manifestation of guilt and does not possess the qualities of an extreme medical condition that compels the intervention of the court.

76.  We are not persuaded that this is the correct way to analyse the respondent’s PTSD.  The medical evidence is that the respondent’s condition arises from the guilt he feels over what he has done.  Ms Lam emphasized that the respondent did not consult a psychiatrist until some 9 months after the accident and that an apology that he offered the victim’s relatives at court was only offered in response to prompting by the judge and was not accepted by the deceased’s mother.

77.  But our analysis of this issue, in the absence of evidence to the contrary, has to proceed on the basis that the PTSD is genuine and that the remorse the respondent claims he feels, is genuinely felt.  There is nothing unusual in persons who suffer from depression delaying in seeking treatment.  As to what transpired at court, it is impossible to derive from it anything relevant to the respondent’s character or the true nature of his feelings.

78.  It is important to recognise that the PTSD flows not from the respondent’s predicament of facing a prison sentence but from the fact that as a result of his actions he caused an accident which resulted in the death of another person; a person who, like him, had family who loved him and will grieve for him and who also, again like him, turned to him for support and assistance in their lives.  He took this loved one from them and he must forever live with that reality.  That he feels this acutely and that it has caused him to become conscience stricken and to develop strong feelings of guilt and remorse we must accept.       

79.  Many offenders become conscience stricken after they are prosecuted but their conscience did not inhibit them from committing the crime.  Such persons may be horrified that they have been caught and publicly shamed and will be going to prison.  But such offenders are quite different from the respondent.  He is genuinely horrified at the crime itself, and the consequences of it, not to himself, but to the deceased and his family. 

80.  This, we think is different from an offender who suffers ill-health or who injures himself in the course of committing his crime.  We are more inclined to see this as an extreme form of remorse, just as positive good character is an extreme form of good character, which manifests itself in a medical disorder.  Like positive good character we are of the view that it can properly be regarded as a mitigating factor warranting an additional discount.  But, again like positive good character, the amount of the discount must be within reasonable limits and must not be disproportionate to the sentence. Here, the starting point was 15 months discounted to 10 months for the guilty plea.  To reduce that figure by a further 20% was to award the respondent a disproportionate discount for his PTSD.  We believe that, in the circumstances of this case, a discount of only 1 month is warranted.

Do the interests of justice require correction of the respondent’s sentence?

81.  Were we to interfere with this sentence we would not depart from the 15 month starting point, we would not allow the discount for the respondent’s driving record and we would allow a 1 month discount for his PTSD. This would result in a sentence of 9 months’ imprisonment.

82.  Having found error by the judge we had to consider whether the interests of justice required us to intervene and correct the sentence.   In determining this issue we also had to have regard to the circumstance that the respondent was due to be discharged from prison 4 days after the hearing of the application.

83.  When the Court of Appeal grants a review of sentence application and extends an offender’s prison term close to his release date it would normally discount the substituted sentence to allow for the hardship the prisoner has to endure of having his hopes dashed of shortly being released.  The difficulties that a review of sentence presents for an offender were described by Lord Taylor CJ in Attorney General’s Reference No 16 of 1992, where he said:

“ A further consideration which was mentioned in later cases and which this Court has to have in mind, is this, that where the Court has to consider whether to alter the sentence or not, it must have in mind that to vary a sentence which has already been passed and which the offender has become used to accepting as his desserts, to something more severe, is in itself a form of punishment. Some allowance needs to be made for the fact that the reference causes suspense and anxiety a second time for the offender whilst he is waiting to know the outcome.”[35]

84.  This was adverted to by Stock VP in Secretary for Justice v Wong Hong Leung where he set out what the correct course for the Court of Appeal should be in adjudicating a review of sentence:

“In a case of the present kind, where the review court is faced with a first instance sentence which is dramatically overly lenient, the review court’s duty must be to state what the proper sentence should have been; otherwise it would set an inappropriate sentencing precedent for future cases. What it can do, however, is to accord an appropriate discount from the sentence, so as to reflect the punitive element of the anxiety occasioned to the respondent pending the review, and of the shock or disappointment occasioned by a substantial increase in sentence and the dashed hope of pending release.”[36]

85.  In the present case the appropriate discount would be at least one month.  Thus, were we to intervene we would only be altering the sentence by adding a further two months to it, just four days before the respondent was due to be released from prison.  This squarely raised the issue of whether this case was in the exceptional category and was one where the interests of justice dictated that we should intervene.

86.  In deciding this issue we had regard to the following:

(i) the judge’s starting point was based on an accurate assessment of the respondent’s culpability and cannot be said to be unduly lenient;

(ii) such errors that crept into the final sentence have been addressed by us in this judgment;

(iii) in terms of sentencing principle, the errors of the judge are not errors of great significance; and 

(iv) the errors of the judge, as determined by us, did not have a great impact upon the length of the final sentence.

87.  Having regard to all these matters and the circumstances of the case generally, we concluded that the final sentence is not one that will erode public confidence in the administration of criminal justice, even though it may not meet the expectations and hopes of the deceased’s family.  As we have explained earlier in this judgment, these applications are decided by having regard to the interests of justice and within that legal concept are a number of interests, including those of the victim and the victim’s family.  Balancing all those interests, and taking into account the overall sentence imposed, we were not persuaded that even though the judge may have been overly generous in the discounts she awarded the respondent, we should grant the application to review the sentence.       

Disposition

88.  For these reasons we refused the application.