SECRETARY FOR JUSTICE v. LAW SIU KIN

CAAR 6/2022

[2023] HKCA 352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 6 OF 2022

(ON REVIEW FROM DCCC NO 892 OF 2021)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court):

Introduction

1.  This is an application for a review of sentence by the Secretary for Justice against the 22 months’ imprisonment imposed on the respondent by Deputy District Judge K Lo (“the judge”)  on 29 April 2022 following his guilty plea to 3 charges: (1) Causing death by dangerous driving[1]; (2) Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit[2]; and (3) Failing to stop after an accident whereby personal injury was caused to a person[3]. He was also disqualified from driving for 5 years and ordered to complete a driving improvement course but these are not the subject matter of the present review.  Leave was granted by Hon Poon CJHC on 26 May 2022, pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221.

2.  Having heard submissions from counsel for the applicant and respondent, we allowed the application for review, quashed the sentence of 22 months and substituted it with one of 3 years’ imprisonment.  We now give our reasons.

Summary of facts

3.  The respondent and some friends had been drinking into the early hours of 28 March 2021 at the loading area of a logistics company in Sheung Shui, New Territories. He appeared to be in an agitated state and was talking nonsense. At 0030 hours, he wanted to drive off. Seeing that he was wobbly and unable to walk straight, his friends tried to dissuade him not to drive, but to no avail.  He jumped off the loading platform and got into his car which was parked in the loading area.  He turned on the ignition and headlights.  His friend, Mr Tsang (“the deceased”), chased after him, opened the left rear door of the car and said in a loud voice: “Don’t drive off”.  The respondent ignored the deceased, put the car in reverse, steered to the right and reversed at high speed.  The left rear door, which was still open struck against the metal fencing.  The respondent continued to drive forward and sped towards the exit, knocking down the deceased with the two sets of wheels of the car rolling over the deceased (Charge 1).  At no time did the respondent stop.  He simply sped off (Charge 3).

4.  At 0101 hours, one of the respondent’s friends made a call to him, which he did not pick up.  He called back a few minutes later and was informed of the accident.  The respondent refused to surrender as suggested and it was not until some 50 minutes later that he returned to the scene to tell the police that he had come back to surrender. He told the police that the car involved in the accident was parked in a car park, about 3 kilometres away from the scene.

5.  At 0209 hours, the respondent’s screening breath test detected the presence of alcohol at a concentration of 72 microgrammes (“μg”)  per 100 millilitres (“mL”).  A second screening breath test conducted 2 hours and 30 minutes after the accident showed a result of 64 μg per 100 mL (close to the upper limit of tier 2).  The respondent was arrested for “Drink Driving” (Charge 2).

6.  Ambulance officers arrived at the scene at about 0058 hours. The deceased was taken to hospital and was certified dead at 0230 hours despite resuscitation.  A Medical report revealed that the deceased suffered, amongst other injuries, abrasions over his right face, distension of the abdomen and deformities over the four limbs.  The direct cause of death was multiple injuries.  The pathologist remarked that the deceased showed extensive blunt impact trauma consistent with those caused by vehicular impact and being driven over.

7.  The CCTV footage of the car park captured that the respondent parking the car at 0053 hours and alighting the vehicle at around 0100 hours.  He left the car park at 0105 hours and walked back towards the car park at 0132 hours.

Background and Mitigation

8.  At the time he was sentenced, the respondent was 41.  He had two previous convictions, which were not similar in nature to the present offences.  He had been driving since 2003 and had a good traffic record, with only one conviction for failing to display a valid licence.  His marriage had broken down since the offence and he was divorced before he was sentenced. He worked at two jobs and made regular contribution to his aged parents. Letters in mitigation were submitted on his behalf, which attested that he was a kind-hearted and hardworking person.  It was said that he was regretful for the crime he had committed and had determined to quit alcohol.

9.  It was submitted that the respondent had misjudged the whereabouts of the deceased and was unaware that he had run the deceased over because he was under influence of alcohol.  Counsel submitted that the respondent realized how reckless and foolish he was and that he would regret for the rest of his life having killed a close friend whom he had known for 5 years. He expressed his remorse by contributing HK$30,000 towards the deceased’s funeral expenses.

10.  Further, defence counsel urged the court to take into account the respondent’s guilty plea, which had been entered at the first available opportunity; and his surrender shortly after the accident and his full co-operation in the investigation. The court was urged to order the sentences in respect of the three charges to run concurrently as the offences were proximate in nature, time and location.

Reasons for Sentence

11.  In respect of Charge 1, the judge noted that the offence attracts a maximum of 10 years’ imprisonment and a deterrent sentence was called for: Secretary for Justice v Poon Wing Kay & Anor[4], HKSAR v Lee Yau Wing[5]; and Secretary for Justice v Lam Siu Tong[6].  She took into account the respondent’s consumption of alcohol and the fact that he had ignored the warnings of others.  He has also failed to stop after the accident.  The judge found that it was not a mere momentary error of judgment by the respondent but rather a selfish disregard by him for the safety of other road users.

12.  The judge adopted a starting point of 2 years and 9 months’ imprisonment for Charge 1, which she reduced to 22 months for his plea of guilty.  For Charge 2, the judge noted the maximum sentence was a fine at level 4 and to imprisonment for 3 years. She adopted 9 months’ imprisonment as the starting point, reducing it to 6 months’ imprisonment for the respondent’s guilty plea.  Lastly, for Charge 3, which attracted a fine of $10,000 and imprisonment for 12 months, the judge adopted a starting point of 3 months’ imprisonment and reduced it to 2 months for the guilty plea.  The sentences of all three charges were ordered to run concurrently.  The final term of imprisonment term was 22 months for the present case.

Grounds of application for review of sentence and submissions

13.  Mr Kelvin Tang, SPP, who appeared for the applicant, submitted that the sentence imposed in respect of Charge 1 was wrong in principle and/or manifestly inadequate; and that in ordering wholly concurrent sentences for the three charges the judge erred in applying the totality principle when determining the overall sentence for the offences.

14.  It was contended that, the judge, having found the respondent’s manner of dangerous driving was not a mere momentary error of judgment but rather displayed a selfish disregard for the safety of other road users, with the presence of the various aggravating features highlighted below, erred in adopting a starting point of 2 years and 9 months’ imprisonment which was only commensurate with the category of intermediate culpability in R v Cooksley and Ors[7]:

(1)  Driving under heavy influence of alcohol which exceeded the prescribed limit (22 μg in 100 mL)  by about two times;

(2)  Blatant disregard of repeated warnings from others asking him not to drive;

(3)  Driving and manoeuvring dangerously, which resulted in death;

(4)  Failing to stop after the accident and driving a further 3 km, exposing other road users to high risk;

(5)  Failing to surrender at the earliest possible instance.

15.  The applicant referred to the case of  HKSAR v Sheung Kun Hoo Daniel[8], where a starting point of 3 years was enhanced for the applicant’s poor driving record, threefold alcohol content and deliberately delaying of the arrival of the police.  The applicant contended that as more aggravating features existed in the present case, Charge 1 warranted a starting point of no less than 4 years’ imprisonment.

16.  It was further submitted that since the commission of Charges 2 and 3 added to the overall culpability of the respondent, the appropriate overall starting point in respect of all three charges should have been in the region of 4½ years’ imprisonment and a resultant sentence of 36 months’ imprisonment on his guilty plea.  Mr Tang submitted that even with the customary discount on appeal, there would still be a significant difference with the original sentence and there was no valid basis to leave the original sentence undisturbed.

Respondent’s submissions

17.  Ms Stephanie Ko, for the respondent, maintained that with all the aggravating features identified by the judge, the culpability of the respondent was at the intermediate level.  She stressed that the dangerous manoeuvre by the respondent at the loading area lasted no longer than 3 minutes, and the 3 kilometres that he had driven was a relatively short distance and at a time when traffic was scant and light.  No delay in rescue was caused by the respondent as the deceased was immediately cared for after the arrival of the ambulance 8 minutes later.

18.  Miss Ko submitted that the 2 years and 9 months’ imprisonment adopted by the judge as the starting point for Charge 1 reflected the criminality of Charges 2 and 3 as aggravating features which brought the respondent’s culpability to the higher end of the intermediate culpability of the dangerous driving category.

19.  It was further pointed out that the respondent did not apply for bail prior to his sentence and had already served the whole of his sentence.  He was released on 22 June 2022 and started new employment in an engineering company in November 2022.  He had undergone additional stress and anxiety with the present review hanging over his hand since leave was granted.  To send him back to prison would pose undue hardship, and counsel urged the Court to leave the sentence of 22 months undisturbed.

Discussion

20.  The judge found that the driving of the respondent was a selfish disregard for the safety of others rather than a mere momentary error of judgment[9]. That places the respondent in a serious degree of culpability: Secretary for Justice v Liu Kwok Chun[10].

21.  In Secretary for Justice v Chu Wing Yin Christine[11], a case which is concerned with causing grievous bodily harm by dangerous driving, with a maximum of 7 years’ imprisonment on indictment, the dominant factor of a defendant’s culpability was examined.  Macrae VP said:

“53. …This will involve two related assessments. The first is the objective dangerousness of the defendant’s driving; the second is his moral culpability.

…

55.  There will of course, be an overlap or inter-twining of these two assessments, one of which focusses more on what the driver did, the other on why he did it.  Both, however, are concerned with addressing the dominant question of culpability.”

22.  The second step is to assess the harm.  Macrae VP went on to say:

“57. In assessing the issues of culpability and harm, a sentencing judge will have regard to the sort of aggravating factors described in the authorities, mindful that they do not represent an exhaustive list, and conscious that the value to be placed on any particular factor will vary according to the circumstances of each case.”

23.  Some aggravating factors were listed by Zervos JA in his separate judgment:

“80. Aggravating factors may include:

(i)  the extent and nature of the injuries inflicted;

(ii)  the number of people put a(t)  risk;

(iii)  the degree of speed;

(iv)  the extent of intoxication or of substance abuse

(see section 36A(7)  of the RTO);

(v)  whether there was erratic or aggressive driving;

(vi)  whether there was competitive driving or showing off;

(vii)  the length of the journey during which others were exposed to risk;

(viii)  whether there was any ignoring of warnings;

(ix)  whether the offender was escaping police pursuit;

(x)  the degree of sleep deprivation;

(xi)  whether the offender failed to stop;

(xii)  the fact that the offence took place at a pedestrian crossing (see Secretary for Justice v Lam Siu Tong); and

(xiii)  whether the offender was driving a public service vehicle (see HKSAR v Man Chun Pun).”

24.  In assessing the overall culpability of the offender, it is not a case of counting the number of aggravating or mitigating factors and then arriving at a starting point by mechanical means.  Ma CJHC (as he then was)  remarked in Secretary for Justice v Poon Wing Kay[12]:

“9. (4)  …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. In some cases, the fact that only some aggravating factors exists, but no others (such as in the present case), may still bring the case into a very serious category.”

25.  A number of the aggravating features listed above were present in this case.  The irresponsible driving of the respondent resulted in a life lost.  Driving under the influence of alcohol nearly 3 times the prescribed limit goes to both the objective dangerousness of the driving and the moral culpability of the respondent.  We were not impressed with Miss Ko’s submission that the respondent was unaware that he knocked down his friend, when he was clearly aware that his car jerked up and down twice[13].  This was plainly deliberate and aggressive driving, which is both objectively dangerous and morally culpable.  Disregarding the warnings of others, failing to stop after an accident, failing to surrender and the circumstances of returning only after one hour goes to his moral culpability.  We can think of no other reasons for the delay other than to allow himself time to sober up.  We do not agree with the argument of Miss Ko that traffic over the 3 kilometres that he had driven after the accident was light and the number of people put at risk was small.  The “minimal traffic” referred to in the Summary of Facts[14] refers to the loading area where the accident happened.  The fact that he had driven 3 kilometres after the accident when his judgment was seriously impaired under the influence of alcohol put other road users at risk and that goes to both the objective dangerousness and his moral culpability.

26.  The maximum penalty for dangerous driving causing death in Hong Kong is 10 years’ imprisonment.  Whilst that was also the maximum penalty when the guidelines in R v Cooksley were set down, that maximum has since been increased to 14 years: R v Richardson and Others[15]. The Cooksley guidelines were reassessed in Richardson.  Although we indicated at the hearing that a strict application of the sentencing guidelines in Cooksley to the circumstances prevailing in Hong Kong may not be appropriate because apart from societal differences, Hong Kong is a city where people live and work in close proximity to one another.  The fact remains that both the courts and the legislature take a very serious view of cases where the amount of alcohol consumed inevitably and significantly reduces the standard of driving in the community.

27.  We are of the view that the 2 years and 9 months starting point adopted by the judge in the circumstances of this appalling crime was manifestly inadequate.  The culpability of the respondent is more appropriately reflected by a starting point of 5 years’ imprisonment. With the full one third discount for his plea and a further discount of 4 months for the fact that this is a review, we quashed the sentence of 22 months and substituted a sentence of 3 years’ imprisonment on Charge 1.

28.  We did not think it appropriate to order partially consecutive sentences for Charges 2 and 3, as those have already been taken into account as aggravating factors when assessing the respondent’s culpability as well as the triangulation of interests in respect of Charge 1: per Lord Steyn, Attorney General’s Reference[16].  An order of concurrent sentences is appropriate in the present case.  The Court must be wary of punishing a defendant twice for the same act.

29.  Accordingly, we allowed the application for review and substituted for the sentence of 22 months a sentence of 3 years’ imprisonment.