ATTORNEY GENERAL v. CHAN CHUN YUEN

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J U D G M E N T

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Hon. Yang, C.J.:

1. This is the Attorney General's application for review of a sentence of two years' imprisonment suspended for three years and disqualification from driving all classes of vehicle for a period of five years imposed upon the respondent for causing death by reckless driving. The maximum sentence that may be imposed for this offence is 5 years.

2. The respondent pleaded quilty and the learned trial judge called for a probation officer's report.

3. The Summary of Facts was admitted.

4. At about 3.45 a.m. on the 5th October 1989 the deceased and two other men were standing and talking together on a traffic island at the junction of Essex Crescent and Cumberland Road in Kowloon. All three men were taxi drivers. At the time the weather was fine, the road was dry and the lighting and visibility good. At that time a Toyota station wagon driven by the respondent approached the junction from the north along Essex Crescent, at a speed of about 30 k/h. As the vehicle approached the road, it deviated from one side of the road to the other. It got onto the wrong side of the road and headed towards a taxi parked by the kerb. As it was a few feet from the front of the taxi, it swerved to the left and missed the taxi but headed towards the traffic island. It was then only about 20/25 feet away from the three taxi drivers. It did not mount the traffic island, but narrowly missed one of the three men. However the vehicle collided with the deceased who had stepped onto the carriageway of Essex Crescent in his attempt to avoid the vehicle.

5. After being struck by the vehicle, he fell to the ground and was trapped underneath the front of the car and dragged along for some 30 to 40 feet. The vehicle failed to slow down or stop and continued along Sussex Crescent. The deceased was taken to hospital with multiple injuries and was certified dead at 4.53 a.m.

6. In due course the respondent drove the vehicle onto Nathan Road towards Tsimshatsui. At the traffic lights on the intersection of Nathan Road to Waterloo Road there were a taxi and a goods vehicle in the same lane waiting for the light to turn green. The respondent drove his vehicle into the back of the goods vehicle which in turn was forced into the back of the taxi. This collision occurred at about 3.50 a.m.

7. After a brief conversation with the occupants of the two vehicles the respondent fled in a taxi, leaving his Toyota in the middle of Nathan Road.

8. Earlier that evening, between 11 p.m. and 1 a.m. the respondent had been with his girlfriend and consumed half of a small bottle of brandy by himself. On the way home with his girlfriend, he purchased a quart bottle of brandy and drank that as he continued to drive towards his home. By the time he reached home he had drunk less than half of that bottle. As his wife was home his girlfriend decided to leave. As he was going downstairs with his girlfriend he drank the remaining portion of the bottle of brandy in one gulp.

9. He then proceeded to drive his girlfriend to her home. Shortly after they commenced the journey, a police patrol stopped his vehicle as its lights had not been turned on. During a conversation with police, the smell of liquor was detected about his person and he spoke in a loud voice. At one point, he threw a pile of bank notes to the ground and told the police to summons him if they wanted. The police then requested his girlfriend to drive the vehicle, which she did.

10. His girlfriend then drove him to his home. At that point he alighted from the vehicle announcing an intention to chase and scold the two police officers who had stopped his vehicle. His girlfriend at this time observed that he walked in a staggering manner. His girlfriend then left.

11. He shortly afterwards returned to the vehicle and drove off. He was then involved in the two traffic incidents referred to.

12. In his cautioned statement he admitted he had wanted to commit suicide. He said his girlfriend advised him against drinking any more, but he ignored her. When asked as to why he had taken an unusual quantity of liquor and had then driven, he said that he was in bad mood at the time and intended to have alcoholic drinks to render himself insensible and then drove the car into the sea. He did not want to commit suicide by jumping from a height.

13. In mitigation it was pointed that the respondent was a kind and generous person who foolishly got himself into debt and this put himself into financial difficulties. He had built up a thriving business from nothing. And it was in desperate financial stress he took to drinking and was that night intending to run the vehicle off the road into the sea. His wife was "100 per cent behind him", and he was remorseful.

14. After considering the probation officer's report, and in assessiung sentence, the judge noted that this was "an appalling case of reckless driving", and that the respondent was very intoxicated, having taken a great deal of brandy. He was 50 years of age and a man of good repute. From being a simple hawker of vegetables he now had this thriving business, operating a vegetable wholesale dealer's shop in Kowloon City making a profit of about $100,000 p.m. The judge stated that normaly a case of this type would attract an immediate custodial sentence of three to four years' imprisonment, but in pursuing a "merciful course" he passed the sentence that he did.

15. Mr. Cross for the Attorney General submits that five aggravating features exist in this case, viz., (1) the driving which was grossly impaired by alcohol; (2) the disregard of the warning from the police; (3) the driving in the conscious realization that his faculties were grossly impaired and his clear realization that he had little or no effective control of the vehicle; (4) his failure to stop after hitting the deceased; and (5) continuing to drive in the realization that he had hit something as demonstrated by the fear that if he stopped, he might be beaten up, according to his cautioned statement.

16. The guideline case in England on the subject is R. v. Boswell [1984] 3 All ER 353, referred to in Hong Kong in Attorney General v. Chung Yim-chow [1986] HKLR 109. There McMullin, V.-P. said (at p. 113):

"Mr. Macrae contended that we should not lean too heavily on the decision in Boswell. He put this on the basis that these offences are 'epidemic' in the United Kingdom, while such is not yet the case in Hong Kong. However, we are satisfied that, whatever be the position in the United Kingdom, the feelings of the public in respect of such offences in Hong Kong are accurately reflected in the decision of the legislature so greatly to enhance the penalties for this offence in this territory.

    We think that the decision in Boswell establishes a valuable principle which ought equally to be applied in Hong Kong."

17. That it is the Court's duty to express the society's repugnance at what transpired was referred to by Kempster, J.A. in R. v. Dennis Chiu Tat-shing [1984] 238 (Criminal Appeal) - though there the charge had been one of murder and the conviction not of manslaughter.

18. There are, in the peculiar circumstances of the respondent, strong mitigating factors as was forcefully urged upon us by Mr. Hagon. However in the Attorney General's Reference No. 15 of 1990 [1991] 2 Cr App R 194, the Lord Chief Justice referred to "the sort of problems which do arise when people ... have to be sent to prison. Although sympathising not only with this man, but more particularly with his wife and family we do not feel those matters justify us in coming below the figures in the guidelines" laid down in Boswell's Case.

19. Whilst we do not necessarily adopt the same guidelines as in England, we do not quarrel with the learned trial judge's starting point in the three to four years imprisonment range. Nor can we say the sentence he arrived at, after taking into account all the mitigating considerations, was wrong. What we do say is that that sentence ought to have been immediate and not suspended.

20. We grant the review. In our judgment the appropriate sentence for the respondent in this case was and is two years' imprisonment. However, having regard to the fact that he has not been detained in prison, and this is a review, we allow a discount of six months. The result is that he is sentenced to a term of 18 months in prison.