SECRETARY FOR JUSTICE v. LAU SIN TING

CAAR3/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 2010

(ON APPEAL FROM DCCC NO. 888 OF 2009)

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BETWEEN

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.  This is an application for review of sentence pursuant to s. 81A of the Criminal Procedure Ordinance, Cap. 221, leave having been granted by the Chief Judge on 3 May 2010.

2.  On 22 March 2010, the applicant pleaded guilty before Judge Toh in the District Court to a charge of dangerous driving causing death, contrary to s. 36(1) of the Road Traffic Ordinance, Cap. 374.  No plea was taken in relation to a second charge, that of using a motor vehicle without third-party insurance and it was ordered that that charge be left on the file.

3.  After mitigation, the respondent was remanded in custody for the preparation of reports and on 9 April 2010 the judge sentenced the respondent to a term of 10 months’ imprisonment and disqualified her from driving for 2½ years.  This application relates to the term of imprisonment alone.

4.  The date of the offence was 29 January 2009.  The respondent was then aged 19 years.  She lived at home in Yuen Long with her mother and elder sister.  She had by the date of the accident with which this case is concerned held a full driving licence for only 6 months.  The vehicle she was driving on the night of 29 January 2009, a Honda Civic, belonged to her sister.  Its insurance had expired a few days earlier. The accident took place at about 11:15 p.m. at Tai Shu Ha Road West, Yuen Long.

5.  The respondent had been out that evening with a number of friends all of whom were in the vehicle.  One friend, Ms Wong, was seated in the front passenger seat.  There were four other friends who occupied the rear passenger seat: Ms Lo, Ms Chan, Ms Yeung and Ms Cheung.  All were younger than the respondent, their ages ranging upwards from 14 years.

6.  The account given by Ms Wong to the police after the accident was that the six friends had had dinner and boarded the vehicle driven by the respondent.  She recalled that when the respondent drove the vehicle into the road in question the respondent remarked that she had entered the road by mistake.  The road had a dead end.  The respondent made a U-turn and then drove back intending to leave the road.  However she lost control of the vehicle, it spun in an anti-clockwise direction and collided with a goods vehicle which was parked on the left-hand side of the road.

7.  The driver of the goods vehicle had parked it outside a factory where he worked. At about 11:30 p.m. he heard a loud noise and rushed out and found that his goods vehicle was damaged and was now in the middle of the road far from where he had parked it.  He saw the vehicle driven by the respondent mounted on the pavement outside the factory and he made a report to the police.  One of his colleagues had seen the private vehicle pass the entrance of the factory at high speed and then heard the sound of a collision.

8.  The police seized a tape from a CCTV camera which had been installed outside the entrance to the factory.  The tape had captured the respondent’s vehicle passing the entrance of the factory at high speed before the collision.

9.  The respondent’s vehicle was very severely damaged.  A forensic scientist, Dr Wong examined the vehicle at an examination centre and based on that examination and the CCTV tape, he estimated the speed of the vehicle at the time of collision to have been 97 km/hr subject to a tolerance of plus or minus 10 km/hr.  In other words the respondent was driving at a speed between 87 km/hr and 107 km/hr. The speed limit on the road was 50 km/hr.

10.  Dr Wong concluded, as to the sequence of the collision, that the respondent had been driving the vehicle at a high speed along the road and then failed to keep her vehicle under control when it was approaching the parked goods vehicle.  It then turned into the goods vehicle and collided with it.

11.  It was accepted in the court below that the respondent had been driving the vehicle at a standard which fell far below that which would be expected of a competent and careful driver and that it would be obvious to a competent and careful driver that driving in that manner was dangerous.  It was also accepted that at the time of the offence there was no valid third-party insurance in place for the vehicle.

12.  The consequences of these events were tragic.

13.  Two of the four rear seat passengers were killed in the accident.  Each of these two young girls was aged 14 years.  Another girl suffered such severe injuries that she is now paraplegic and requires full time care.  The fourth girl in the rear seat suffered from a fractured right arm and left collarbone and was hospitalized for about 10 days and underwent an operation in July 2009 in consequence of the injuries suffered.

14.  The respondent herself was severely injured.  She suffered multiple broken bones and other trauma including brain injuries which resulted in her lying in a coma for 18 days and subsequently in her undergoing a number of operations and receiving other medical treatment.  Her injuries have permanently affected her mental and physical functioning and resulted in a deterioration in her vision, hearing and thought processes.

15.  The sentencing judge had the advantage of a probation officer’s report which spoke well of the respondent.  She lived at home with her mother and elder sister though sadly, her father had died from cancer in 2001.  Her academic record at school was less than satisfactory but she showed a degree of persistence, returning to school having left at one stage.  She was a keen sports girl.  She had worked during the summer holiday of 2008 taking up a part-time job as a clerk in her mother’s office and thereafter enrolled in a one-year certificate course in computer programming.  There is no suggestion in the report of waywardness in terms of drugs or alcohol.  It reveals, in short, a picture of an ordinary 19-year-old girl who led a normal social life.  The probation officer reported that the respondent was traumatised by the loss of her two friends, felt regret, guilt and distress and had expressed suicidal ideas.

16.  In mitigation it was suggested, in relation to the circumstances of the accident, that the respondent had driven mistakenly into the dead end road and wanted very much to leave that part of the road as soon as possible and that is what led to her speeding and losing control of the vehicle.

17.  The sentencing judge was also presented with a series of letters in mitigation, including one from the respondent, another from her sister, one from the girl Wong, and a further one from Wong’s parents.  They speak of the mental pain suffered by the respondent since the accident at the death of her friends. There is also a letter from the principal of the Queen Elizabeth School Old Students Association who speaks of the respondent as someone with a straightforward and passionate personality, who was kindhearted and happy. There are other letters in the same vein including one from a registered social worker who says that the respondent was a student member of his Yuen Long District Youth Outreaching Social Work team, and that she taught children basketball and imparted an anti-drugs message to them.

18.  The respondent was, at the date of the accident, a person without previous convictions.

19.  The judge commented that the probation officer’s background report was an “extremely good one”.  She referred to the comments by Wong and her parents that they had not found the respondent’s driving on previous occasions other than safe.  So, said the judge, “it would appear that on this occasion the defendant was acting out of character.”

20.  The judge referred to the mitigation presented to her and said that whilst the court was moved by letters from the respondent and her family and friends, “one must not forget the victims in this case and their families.”

21.  The judge referred to the need for the courts to send a message to society at large that young people who obtain licences should recognise the heavy responsibility upon them to drive within their capabilities.  She acknowledged as well that the legislature had increased the maximum penalty for death by dangerous driving, referring no doubt to an increase in that maximum from 5 to 10 years’ imprisonment which was brought into law on 4 July 2008 some six months before this offence.

22.  The judge concluded as follows:

“There is no doubt that a custodial sentence is necessary. I have considered that, in the circumstances of this case, a 15 to 18 months starting point sentence is reasonable. Because of what I have heard, particularly the fact that the defendant had acted out of character, taking all that into account, I will adopt a lower starting point of 15 months. Because the defendant has pleaded guilty, she is entitled to one-third reduction. So the defendant will go to prison for 10 months. And she is also disqualified from driving for 2½ years.”

23.  The respondent’s sister had been charged separately from the respondent with a charge of permitting another to use a motor vehicle without valid insurance. After the respondent had been sentenced the respondent gave evidence on behalf of her sister to the effect that she had taken the vehicle without her sister’s permission.  The respondent’s evidence in that regard resulted in her subsequently being charged with taking a conveyance without authority.  The respondent, we are told, has pleaded guilty to that offence and is to be sentenced in the magistracy in the near future.

24.  We might say in passing that had that offence been dealt with at the same time as the present offence, as in most cases of this sort would have been so, and therefore been extant at the time of these present proceedings, we would have ordered that sentence to have been served concurrently with the sentence in the present case.  That is because of the special circumstances of this case, the nature of these proceedings and the enhanced sentence we shall impose.

25.  As a result of the respondent’s evidence on behalf of her sister, there was before the court a notice of motion filed on behalf of the applicant for us to receive into evidence, for the purpose of the application, a copy of the transcript of evidence given by the respondent at her sister’s trial.

26.  Mr Martin Hui for the applicant acknowledges the terms of s. 83V(5) of the Criminal Procedure Ordinance which states that:

“In no case shall any sentence be increased by reason of or in consideration of any evidence which was not given at the trial.”

27.  However the applicant says that the evidence sought to be put before the court provides a more complete picture of what transpired and “put[s] things in their proper context” and furthermore that this court’s decision in this case, with the benefit of this new material at hand, will bear upon the magistrate’s sentence in the prosecution of the respondent for taking and driving away her sister’s vehicle without permission.

28.  The evidence came before us with the consent of Mr Suen Kam Hee, the respondent’s counsel.  It concerns the respondent’s admission at her sister’s trial that she, inter alia, took the motor vehicle without her sister’s permission, knowing it was not insured.

29.  We have not acted upon that evidence.  It is quite simply not admissible for the purposes urged upon us by Mr Hui.  The suggestion of it providing to us “a more complete picture”, if that phrase has any relevant meaning, can only realistically be understood as the painting of the actions of the respondent in a bleaker light.  That being so the production of the evidence can only be relevant, for the purposes of this case, to factors aggravating the role of the respondent and that means its use is prohibited by s. 83V(5).

30.  The other expressed purpose, that is that the evidence may have some bearing on the magistrate’s sentencing of the respondent for the offence of taking the vehicle without her sister’s authority, is not a matter this court is concerned with, and the evidence is therefore irrelevant to our considerations.

31.  We now turn to the application proper.

32.  The applicant argues that the starting point adopted by the judge, namely, 15 months’ imprisonment failed to reflect the gravity of the offence in question, bearing in mind in particular that the respondent drove at high speed, almost double the permitted speed limit on that back street, with six people on board the vehicle and that two young people were, as a result killed, and a third rendered paraplegic.  It was an admitted fact as well that there was at the time of the offence no third-party insurance in effect in respect of the vehicle. 

33.  It is said that the judge failed to have sufficient regard to the fact that the maximum term of imprisonment for the offence was one of 10 years and to the fact that the applicant was the eldest person in the vehicle, in which some of the passengers were aged as young as 14 years, so that she should reasonably be expected to take particular care for their safety and that there was no acceptable excuse for the manner of driving that led to the accident. Further, it is said that the judge failed to accord sufficient weight to the deterrent element of sentencing for this type of offence.  Accordingly it is said that the sentence fell outside the range which a judge, applying his or her mind to all the relevant factors, could reasonably consider appropriate.

34.  Sentencing decisions for an offence under s. 36(1) of the Road Traffic Ordinance are by their nature difficult.  As was said by Yeung JA in delivering the judgment in HKSAR v Chan Ying Keung, Andy CACC356/2009 at para. 36:

“… The court is not dealing with criminals, but normally law-abiding drivers, who, apart from their involvement in the offence which resulted in death, can be individuals who would not otherwise dream of committing a crime. However, their irresponsible driving attitude had led to extremely serious consequences, including death to innocent people and grave distress to their families, albeit they did not intend to cause any such death or serious injury.”

35.  A principled approach to sentencing for the offence has nevertheless evolved.  In Secretary of Justice v Poon Wing Kay (2007) 1 HKLRD 660 this court approved a number of general principles set out in the judgment of Lord Woolf CJ in R v Cooksley & Ors [2003] 3 All ER 40.  That judgment is also of considerable assistance in its reference to aggravating and mitigating factors which a court may, depending of course on the facts before it, take into account in sentencing for the present offence : see Secretary for Justice v Liu Kwok Chun, CAAR3/2009. 

36.  Recognising that Hong Kong road conditions may differ in many ways from those in England, nevertheless much of what is said in R v Cooksley has application to this jurisdiction.  We emphasis however that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice. 

37.  Considerable discretion must therefore be allowed a court in its approach to sentence.  We bear in mind also what was said by Ma CJ (as he then was) in Poon Wing Kay at paragraph 10 :

“While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: at p. 47B (para. 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. …”

38.  In the present case we are of the view that the judge took too low a starting point of sentence.  That is because of a number of aggravating factors which we think were not given sufficient weight.  Perhaps the most important was the tragic reality that two young teenagers died and another has been made a paraplegic as a result of the respondent’s driving. 

39.  Additionally there can be no doubt that a conscious degree of recklessness was involved. The road where the accident occurred was a back street.  It was relatively narrow being only 24 feet wide.  It was night time, though there was some street lighting.  The respondent’s decision to speed at nearly twice the speed limit of 50 km/h must in those circumstances have created an obvious risk. 

40.  Other circumstances take matters further.  The vehicle had no insurance, it was carrying more passengers than safely permitted by its design and as a consequence there were insufficient seat belts in the rear passenger seat.  Two of the passengers in that seat died and one was made a paraplegic. 

41.  Having said that however there are significant factors in the respondent’s favour which are also relevant to the starting point of sentence.  We recognise that the incident of dangerous driving was an isolated one.  The respondent had not embarked upon a continuous period of dangerous driving; the offence occurring during a relatively brief period of time.  There was not a crowded traffic or pedestrian environment and, importantly, the offence was not aggravated by drugs or alcohol. 

42.  But it must be borne in mind, as the judge stated, that there is a considerable element of general deterrence involved in sentencing for this offence.  The seriousness of the offence is underlined by the increase in the maximum penalty from 5 to 10 years’ imprisonment six months before the present offence occurred.  No doubt the legislature in increasing the maximum penalty for the offence intended to reflect public sentiment that greater deterrence was called for in this sort of case. 

43.  In Cooksley the court set out a range of sentences for various degrees of culpability.  That categorisation was accepted by this court in Liu Kwok Chun as of assistance whilst emphasising it has not been adopted as a “tariff” in Hong Kong.  In Cooksley offences of similar culpability to the present attracted a suggested starting point of 2 to 3 years’ imprisonment.  The court cited the recommendations of the English Sentencing Advisory Panel of February 2003 in these terms :

“… the panel states and we would agree, that:

‘30.   An offence involving a momentary dangerous error of judgment or a short period of bad driving may be aggravated by a habitually unacceptable standard of driving on the part of the offender, … by the death of more than one victim or serious injury to other victims, … or by the offender’s irresponsible behaviour at the time of the offence. … The presence of one or more of these features could indicate a sentence within the higher range, up to three years.’”

44.  That judgment was given at a time when in England, as it now is in Hong Kong, the maximum penalty for this offence was 10 years’ imprisonment.  It is worth bearing in mind that following the further enhancement of the maximum penalty for this offence in England in 2003 from 10 to 14 years’ imprisonment the English Court of Appeal considered what effect an increase in the maximum penalty had on the approach to sentence.  Judge J in delivering the judgment in R v Richardson [2007] 2 All ER 601 said :

“… the principle to be derived … is that the primary object of the increase in the maximum sentence was to address cases of the most serious gravity, so as to permit the sentence to be greater than before, and in an appropriate case to be as long as or longer than the previous maximum. However, even in such cases it was not intended that the increase in sentence should reflect the consequences of the increase from ten years to fourteen years in a strictly mathematical proportion. It has long been recognised that mathematics does not provide the appropriate answer to a sentencing decision. That said, appropriate proportionality between the huge variety of offences which come within the ambit of these crimes leads to the conclusion that if the level of sentence in cases of the utmost gravity is significantly increased (as it should be) there should be some corresponding increase in sentences immediately below this level of gravity, continuing down the scale to the cases where there are no aggravating features at all. In adopting this approach, we are following earlier guidance given by this court in R v Shepherd [1994] 2 All ER 242, [1994] 1 WLR 530, where the court addressed the doubling in the maximum sentence from five to ten years’ imprisonment by significantly increasing the higher, but not the lower starting points.”

45.  We agree with that principle.  Given the matters including the aggravating factors we have outlined above we think an appropriate starting point of sentence in the circumstances of the present case would have been one of 2 years 6 months’ imprisonment.  

46.  Much can be and has been said in mitigation on behalf of the respondent.   She pleaded guilty at an early opportunity.  We bear in mind she herself has suffered very significant and permanent physical injuries.  Additionally we are sure the thought that she was responsible for the death of two of her friends and for another becoming a paraplegic will remain with her for the reminder of her life. 

47.  There is no doubt the respondent is genuinely remorseful and was a young lady of good character at the time of the offence.  We nevertheless must take into account the views expressed by this court in Secretary of Justice v Lam Siu Tong (2009) 5 HKLRD 601 to the effect that the previous good character and genuine remorse of a defendant who has committed this offence must not be given undue prominence : see the judgment at para. 13(c) and (d). 

48.  In our view where as in this case a full discount has been given for a plea of guilty, the remorse and previous good character of an offender as a mitigating factor is subsumed into that discount : see also Secretary of Justice v Yam Chun Keung, CAAR2/2008. 

49.  That does not apply to the injuries, both physical and mental, suffered by an offender.  That is a separate factor in mitigation, the weight of which will depend very much on the permanence and degree of injury.  Clearly the injuries suffered by the respondent are both serious and permanent in the present case and we take them into account. 

50.  We will provide a further discount to the respondent, who is in custody serving the originally imposed sentence, to reflect the nature of these proceedings and the substantial enhancement of her sentence which we will order. 

51.  Given the respondent’s plea of guilty and the other factors we have mentioned, we would have reduced the starting point of sentence of 2 years 6 months’ imprisonment to a sentence of 18 months’ imprisonment.  Bearing in mind the nature of these proceedings and that the respondent at the time of this judgment was due for immediate release from custody, we further discount the sentence to one of 16 months’ imprisonment.  

52.  Accordingly the application of the Secretary of Justice is granted and there is to be substituted for the sentence of imprisonment imposed by the judge a sentence of 16 months’ imprisonment.  The judges’ order as to disqualification remains.