HKSAR v. CHENG HO CHOW

[English Translation - 英譯本]
CACC 111/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 111 OF 2009

(ON APPEAL FROM DCCC NO. 811 OF 2008)

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JUDGMENT

Hon Yeung JA:

Background

1. On 16 February 2008, the appellant Cheng Ho Chow attended a Spring Festival banquet held by his company in a restaurant at Lei Yue Mun.  The banquet finished at about 10.30 pm.  Then, the appellant picked up his light goods vehicle at an open carpark nearby and drove away with a colleague Miss Kan Yuet Ming on board.

2. When the light goods vehicle driven by the appellant was moving along the westbound carriageway of Cha Kwo Ling Road towards Laguna City, it suddenly rammed into a medium goods vehicle parked on the first lane.  The westbound carriageway of Cha Kwo Ling Road at that area slightly curved to the right and there were two traffic lanes on the road surface.  The result of the accident was that Miss Kan died from serious injuries and the appellant himself was severely injured.

3. The accident was obviously caused by the appellant’s drink driving.  Police investigation revealed that the appellant did not brake at all prior to the impact.  This showed that before the collision, the appellant failed to notice there was a vehicle parked on the roadside.

4. People who sat with the appellant at the same table during the banquet said that the appellant had consumed considerable amount of whisky and red wine in the course of the banquet.  A security guard of the open carpark at Lei Yue Mun described that when the appellant picked up his light goods vehicle at about 10.30 on the night of the accident, his face was red all over and that he walked unsteadily.

5. The above accident led to the prosecution against the appellant for one count of dangerous driving causing death.  He pleaded not guilty and was tried before Deputy District Judge W. C. Li.

6. On 24 February 2009, Deputy Judge Li convicted the appellant and on 6 March 2009 he sentenced the appellant to 2 year’s imprisonment and disqualified him from driving and from holding a driving licence for 4 years.  Deputy Judge Li used 3 years as the starting point and then reduced the term by 1 year to 2 years on account of the appellant’s serious injuries and the various kinds of inconveniences he suffered as a result of the injuries.

7. On 31 March 2009, the appellant applied for leave to appeal against sentence.  Leave was granted on 25 June 2009.  In the meantime, the appellant was allowed bail pending appeal on 7 May 2009.

Ground of appeal

8. The appellant relied solely on humanitarian grounds to plead for reduction of his sentence.  He said that the accident resulted in paralysis of his whole body and loss of the ability to take care of himself.  He said that he was not able to change clothes or take a bath by his own effort, and that he was not even able to urinate or defecate without assistance.  He also complained that his body was wasting away.  He pleaded for suspended sentence so that he could have the opportunity to, with the assistance of his family members, receive sufficient physiotherapy to prevent further deterioration of his physical condition.

9. The appellant stressed that when he was in jail, although he received assistance from other prisoners, some of them were not altogether happy to help him to deal with things that might cause disgust, and for this reason some intentionally or unintentionally did harm to him.  The appellant emphasized that when he was serving his sentence in prison, his physical condition worsened significantly and the physiotherapy provided to him was not adequate.  The hardship he suffered was thus exacerbated.

10. The undisputed medical reports show that the appellant’s spine was injured in the accident. Consequently he is suffering from tetraplegia and requires special treatment for spinal injuries.

11. In the report dated 3 March 2009, Doctor Ho, who has all along been responsible for treating the appellant, stated that the appellant’s upper limb power was impaired because of the accident, that he could manage to hold a spoon only with difficulty, and that he needed to be helped in order to eat.

12. Doctor Ho specially pointed out that owing to the constraints of the Correctional Services Department in the training and treatment of people suffering from tetraplegia, imprisonment would cause the function of the appellant’s four limbs to deteriorate further. Therefore, his chance of returning to a normal life would decrease.  Doctor Ho was of the view that what the appellant needed was continuous physiotherapy at regular intervals carried out by physiotherapists and his family members.  Without such treatment, his self-care ability in future would be substantially impaired.

13. At the request of the court, the Correctional Services Department made a further report on the rehabilitation progress of the appellant and the support provided by the Correctional Services Department to him.  The report said that when the appellant was in custody, he had been provided with sufficient care and treatment, and that his progress was satisfactory.  According to the report, when the appellant was serving his sentence, he was able to stand and could walk slowly when being helped.  Although the recovery of the appellant’s upper limbs was fair, he could feed himself by using a mobile arm support.

Respondent’s position

14. Senior Public Prosecutor Ms. Teresa Kam, for the respondent, argued that aggravating factors existed in this case in that the appellant had consumed considerable amount of alcoholic drinks over a long period of time before he drove off.  She placed emphasis on the fact that before the collision the appellant had probably closed his eyes or even had fallen asleep.  She emphasized that the physical condition and mental condition of the appellant were such that he was not suitable to drive, but he still proceeded to drive regardless, thus causing the accident.

15. Ms. Kam submitted that a defendant who suffered injuries in the course of committing crime had only himself to blame.  However, she agreed that according to R v. Mallone [1996] Cr App R(S) 221, the fact that the defendant was himself severely injured in the traffic accident could be a mitigating factor. But she stressed that the trial judge had already substantially reduced a 3 years’ term of imprisonment to 2 years on account of the fact that the appellant was severely injured.

16. Ms. Kam submitted that if the appellant had to continue to serve his sentence, he would most likely stay in Stanley Prison, where he could receive professional medical treatment and follow-up care and attention provided by the prison hospital; and that if necessary, arrangements could be made for him to go out to receive treatment at other hospitals or rehabilitation centres.  Ms. Kam further submitted that treatment could be provided as frequently as once a day and that rehabilitation equipment, if it was practicable to do so, could be sent to the prison hospital to be used by the appellant.

Discussion

17. The sentencing of this appellant has given me much worries and concerns. Drink driving is a very serious crime.  The reason is that a vehicle moving in high speed can be a lethal weapon with horrific power of destruction.  When a vehicle is in the hands of a driver who is under the influence of alcohol and cannot properly control the vehicle, severe damage to life and property can be the result and therefore it is a danger to the public.  Generally, the sentence for dangerous driving should be immediate custodial sentence in order to be a deterrent (see Secretary for Justice v Fong Chai Man [2008] 3 HKLRD 493), although in that case the Court of Appeal declined to increase the starting point of 1 year because the incident arose from a mere error of judgment.

18. In Secretary for Justice v Poon Wing Kay and Liu Chun Pong (CAAR 2/2006 and CACC 536/2005), Ma CJHC made it clear that in a particularly serious case of drink driving causing death, the maximum sentence laid down in the law at that time, namely 5 years’ imprisonment, ought to be imposed.

19. Soon after the occurrence of this case, the Legislation Council of Hong Kong, because of the prevalence of drink driving and its potential serious consequences, increased the maximum sentence of drink driving causing death from 5 years’ imprisonment to 10 years’ imprisonment, so as to reflect the abhorrence felt by the public of this crime.

20. Although this case is not the worst of its kind, there are aggravating factors.  At the time of the offence, the appellant must have been completely drunk, otherwise when he was driving he would not have closed his eyes or even have fallen asleep.  The appellant, knowing that his driving ability and skill would be substantially and adversely affected by his physical condition, still chose to drive.  This court will certainly not overlook the fact that the victim lost her precious life as a result of the appellant’s irresponsible conduct.

21. On the other hand, the appellant was severely injured in the same accident and he needs to be taken care of in his daily life. This court has no doubt at all that the Correctional Services Department will make suitable arrangements regarding what the appellant needs.  However, this court must not fail to notice that the appellant’s injuries were not only severe, they also deprived him of the ability to look after himself.  Owing to tetraplegia, in particular the loss of strength in his upper limbs, the appellant cannot change clothes or take a bath by his own effort.  He is not even able to urinate or defecate without assistance.  Under these circumstances, incarceration will cause him immense and extraordinary hardship.

22. Even though the Correctional Services Department will make every endeavour to help individual prisoners to adapt to life in prison, the Department might not be able to provide tetraplegic prisoners, like the appellant, with all the facilities and support they need.  To the appellant, every daily routine activity is a big challenge and struggle.  The lavatory facilities of the Correctional Services Department are not designed to cater for the needs of people, like the appellant, who have this kind of disability.  Just getting into bed and getting out of bed have already posed great difficulties for the appellant, and for this reason he could not go to toilet in the middle of the night and had to wet the bed. The appellant cannot wash or dress himself, have his meals, or go to stool without assistance provided by other people.  The Correctional Services Department will surely do all they can to take care of the appellant, including giving instructions to other prisoners to take care of him.  But to provide care to such kind of prisoners like the appellant may be a strain on the resources of the Correctional Services Department, and the services provided by them may not necessarily meet the appellant’s needs.  As far as other prisoners are concerned, to take care of the appellant is unpleasant work, which they will not be happy to accept.  When they are forced to do this work, they may harass the appellant, which is not something difficult to understand.  The hardship and indignity which imprisonment will give to the appellant will be far greater than those given to the prisoners who are physically healthy and normal.

23. Nor can I disregard the possibility that if the Correctional Services Department is not able to provide full-scale training and treatment to people suffering from tetraplegia, imprisonment would cause the tetraplegic condition of the appellant to worsen further, so that the chance of his living a normal life again would be much reduced.

24. A doctor opined that the appellant needed continuous physiotherapy at regular intervals carried out by physiotherapists and his family members.  If the appellant wants to have continuous physiotherapy provided by physiotherapists at regular intervals whilst he is in prison, that would be unrealistic.  I agree with the doctor’s opinion that a more effective arrangement is to let the appellant’s family members take part in providing suitable treatment to the appellant.

25. I have the duty to protect the interests of the public and to ensure that the public will not be harmed by drink driving and dangerous driving committed by irresponsible drivers, but I am also required to consider the impact and effect a punishment will produce on individuals.  By individuals, I am not referring to the appellant only, but include his family members, especially his wife.  During the appeal hearing, the appellant’s wife appeared in court with the appellant.  The love and care which she showed towards the appellant have left an indelible impression on me. To put the appellant back to jail, whatever the length of the term, will put the appellant into extreme hardship and will cause his family, especially his wife, constant distress.

26. I have asked myself many times the following questions:  In the circumstances of this case, if the appellant is treated leniently, would it arouse a public outcry, saying that the court is indulgent towards drink driving and dangerous driving; would the efforts spent by the government on preventing the commission of drink driving and dangerous driving be compromised; and would people be emboldened to commit drink driving and dangerous driving?  The answers I arrived at are all negative.  On the contrary, my view is that to treat the appellant leniently will make the public aware that there is a benevolent side of the law, so that they will respect the law more and be more willing to obey the law.

27. After considering all the circumstances, I believe that the appellant has been taught an extremely severe lesson.  He will not commit this crime again.  In addition, he had been imprisoned for several months and therefore knew how hard life can be in prison.  To him, this kind of punishment cannot be said to be light.  I decide to be lenient to him by giving him a suspended sentence.

28. I must say clearly that the decision to give the appellant suspended sentence is made because of the very special circumstances of this case and should not be treated as a precedent.

29. I allow the appeal.  The sentence of 2 year’s imprisonment stands but shall be suspended for 2 years.  The appellant does not have to serve the sentence immediately.

Hon Kwan JA:

Facts and sentence

30. On 16 February 2008, the appellant Cheng Ho Chow drove whilst under the influence of alcohol and a serious traffic accident ensued.  The result was that the female passenger on board died from head injuries, whereas his cervical vertebrae were injured, resulting in incomplete tetraplegia.  The appellant was charged with dangerous driving causing death.  He pleaded not guilty.

31. On 24 February 2009, Deputy District Judge W. C. Li found him guilty after trial.  On 6 March 2009, Deputy Judge Li sentenced him to 2 year’s imprisonment and disqualified him from driving and from holding a driving licence for 4 years.  At the time of conviction the appellant was 45 years old.  He was not a professional driver.  He had 4 relatively minor criminal convictions and 2 violations of the traffic laws for which he was fined.

32. At the time of the accident, a person who committed this offence was liable on conviction on indictment to imprisonment for 5 years.  The Deputy Judge used 3 years as the starting point.  He considered that the only mitigating factor was the appellant’s serious injuries.  Having taken into account the medical reports, the Deputy Judge reduced the term to 2 years on the basis that when the appellant was imprisoned, he would suffer inconveniences in his rehabilitation and treatment.

33. On 31 March 2009, the appellant applied for leave to appeal against sentence.  On 7 May 2009, he succeeded in obtaining bail pending appeal and was thereupon released from Stanley Prison.  On 25 June 2009, the Court of Appeal granted him leave to appeal against sentence.

34. So far, the appellant has served 2 months of his sentence in prison.  He asked the court to suspend the remainder of the 2 years’ imprisonment.  The sole ground he relied on was the humanitarian ground.

Authorities about dangerous driving causing death

35. Recent cases in which the Court of Appeal dealt with sentencing concerning this offence include Secretary for Justice v. Poon Wing Kay and Liu Chun Pong [2007] 1 HKLRD 660; Secretary for Justice v. Fong Chai Man [2008] 3 HKLRD 493; HKSAR v. Au Yeung Kwok-kin CACC 21/2008; Secretary for Justice v. Yam Chun Keung CAAR 2/2008; and Secretary for Justice v. Lam Siu Tong and Wong Ton Fan [2009] 5 HKLRD 601.  When the defendants of these cases were sentenced by the trial judges, for this offence a person was liable on conviction on indictment to 5 years’ imprisonment and on summary conviction to 2 years’ imprisonment.  The law had not yet been amended.

36. In Poon Wing Kay (paragraph 10, p.667G – p.668G) the Court of Appeal adopted the guidelines laid down by the Court of Appeal of England in R v. Cooksley & Ors. [2003] 2 Cr App R 18.  Chinese translation of these guidelines can be found in paragraph 12, on page 500 of Fong Chai Man.  The guidelines are set out below:

“(1)       In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly: [R v. Cooksley & Ors. p.45 J (paragraph 11)].  This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.

(2)         Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: [R v. Cooksley & Ors. p.46A (paragraph 11).  The impact on people’s lives ought to be taken into account when sentencing.

(3)         It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving: [R v. Cooksley & Ors. p. 46C-E (paragraph 11)].  A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim.  The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.

(4)         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: [R v. Cooksley & Ors. p. 47B (paragraph 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.  In some cases (such as in the present case), the fact that only some aggravating factors exist but not others may still bring the case into a very serious category.

(5)         One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians) or with a degree of recklessness: [R v. Cooksley & Ors. p. 46D-f (paragraph 12)].”

37. In Lam Siu Tong and Wong Ton Fan (paragraph 13, p.609-610), the Court of Appeal made the following additional observations:

“(1)       Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused.  The court is also usually informed of the deep remorse that is expressed.  The present cases provided no exception.

(2)         And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided.  Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine.  There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it.  As Yeung JA remarked in HKSAR v. Au Yeung Kwok-kin (CACC 21/2008, 25 August 2008) the courts will not show leniency to any driver who has endangered the lives and safety of other road users.

(3)         In these circumstances, good character and remorse may count very little.  These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided.  The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years’ imprisonment for convictions on indictment.

(4)         The Court must therefore be astute to bear in mind the above considerations when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown.  This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence.  Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.”

38. The other cases referred to above, being only instances where the guiding principles were applied, need not be analysed one by one.

39. What is involved in this case is reckless conduct as reflected in the appellant’s driving after consuming alcohol.  Paragraph (1), (2), (3) and (5) of the Poon Wing Kay guidelines are applicable.  As stated in paragraph (4), in assessing the overall seriousness of the crime committed in this case, the appellant’s culpability is the dominant factor.  One of the aggravating factors is that the appellant had driven with selfish disregard for the safety of other road users or of his passenger.  Even if the appellant felt remorse and regret for what he had alone, that cannot compensate for the harm done to the deceased and her family and therefore the court will not attach much importance to that.  He did not plead guilty and cannot be given the discount which could have been given had he pleaded guilty.

40. The trial judge is correct to use 3 years as the starting point.

Authorities about reduction of sentence on humanitarian ground

41. The fact that the offender suffered serious injuries in the accident caused by his dangerous driving is a mitigating factor (R v. Cooksley & Ors., paragraph 22).  The trial judge had referred to a similar English case R v. Mallone [1996] 1 Cr. App. R. (S.) 221.  The defendant in that case drove under the influence of alcohol, with the result that 1 person was killed and 1 person was injured.  He suffered serious injuries on many parts of his body including his face.  He lost the sight of his right eye and the use of his right arm and right leg.  Although the serious injuries of the defendant was caused by his own conduct, the Court of Appeal of England held that the sentencing court should have taken into account this matter and 5 years’ imprisonment was reduced to 4 years.  Based on this authority, Deputy Judge Li reduced 3 years’ imprisonment to 2 years.

42. The Senior Public Prosecutor referred to a number of Hong Kong cases on the question of whether the defendant’s ill health or his physical disabilities resulting from injuries received in the course of his criminal act can be a ground for reducing sentence.  In Yip Kai Foon v. HKSAR (2000) 3 HKCFAR 31, the appellant had committed many serious crimes, including escape from prison.  When he was resisting arrest he received a gunshot wound that turned him into a paraplegic.  He was sentenced to a total of 36 years’ imprisonment.  He pleaded for reduction of sentence on the ground that he had suffered serious injuries.  The Court of Final Appeal dismissed his application.  The following remarks were made by the Chief Justice from p.35F-G and p.35I-p.36C:

“Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity. …

In these cases, the defendant’s physical condition did not result from injuries received in the course of criminal acts.  Where his condition did so result, the Court of Appeal held in R v Chak Shui Chung [1989] 2 HKLR 81 that as a general rule such injuries would not be a factor for consideration as regards the length of imprisonment to be imposed for those criminal acts.  As Silke V-P observed at p.84G:

‘… In the majority of cases the injured person has brought his misfortune upon himself and it is the criminal act which attracts the punishment, a punishment not lessened by virtue of damage to the perpetrator of that act while in the course of it.

But it was held that there are exceptions where the injuries are very serious.  What the Court of Appeal was saying was that, exceptionally, very serious injuries, even where suffered in the course of criminal activity, can be taken into account to reduce the sentence.  There is of course no question of ‘must be’.  In deciding whether the sentence should be reduced for this reason, all the circumstances of the case would have to be considered.  In Chak Shui Chung, the defendant lost both arms when dismantling bombs and had pleaded guilty to possession of explosive substances.  The Court of Appeal, in deciding to reduce the sentence of imprisonment from 7 to 5 years, considered that in the circumstances of that case the loss of both arms was in itself both a deterrent to future criminal participation and a personal punishment of great severity.”

43. In HKSAR v. Tam Yuen Tong [2007] 1 HKLRD 894, McMahon J said at p.896 A-C as follows:

“… Ill health generally will not normally operate as a mitigating factor.  That is because prison medical facilities are regarded as adequate to deal with prisoners’ physical complaints.  As a matter of reality most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive.  Accordingly the ill health, with the exception of perhaps very serious ill health, of an offender will not be a matter taken into account in mitigation: see R v Chan Kui Sheung [1996] 3 HKC 279 at 284 and R v Lo Chi Keung [1996] 3 HKC 155. Again, however, in exceptional circumstances and as an act of mercy rather than as a principle of mitigation, ill health may result in a reduction of sentence.”

44. In HKSAR v. Tsang Wai-kei, CACC 452/2002, Yeung JA expressed the following views in paragraph 18:

“The court must on the other hand keep a proper balance between the public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest must prevail.”

45. I have also referred to a recent case Grenfell v. R [2009] NSWCCA 162 of the Court of Criminal Appeal of New South Wales, Australia. In that case, the appellant was 77 years old. He pleaded guilty to crimes relating to fraud and was sentenced to 2 years and 8 months’ imprisonment. He was suffering from a near total loss of vision due to disease, with only peripheral vision remaining. The degenerative condition of his spine at the lumbar region aggravated because of injury. He also had a hypertensive condition and renal problems. He required daily medication. His diet was regulated and restricted. He appealed against sentence, relying on these facts. After considering medical reports and the medical facilities provided by the corrective services, the Court of Criminal Appeal upheld the sentence. In paragraph [33] the Court referred to the principle expounded by King CJ in R v. De Vroome (1987) 38 A Crim R 146 at p.147, which is set out below:

“The courts can make some adjustment to sentences to take account of the additional hardship caused to an offender by his condition, but they are necessarily limited in the extent of such adjustment by the necessity of maintaining proper standards of punishment.”

46. The following conclusions can be drawn from the above authorities:

(1)      Ill health generally will not operate as a mitigating factor. Medical facilities available in the prisons in Hong Kong are adequate to deal with prisoners’ general physical complaints.

(2)      In rare circumstances, very serious injuries, even where suffered in the course of criminal activity, can be (but not must be) taken into account to reduce the sentence.

(3)      Reduction of sentence under these circumstances can be done as an act of mercy or on the basis that the hardship which the offender in question will suffer when he is in prison will, because of his disabilities or ill health, be more than those suffered by a healthy person.

(4)      Adjustment made to a sentence under these circumstances must be within proper limits, because of the necessity of maintaining proper standards of punishment.

(5)      In order to decide whether a sentence should be reduced for this reason, all the circumstances of the case should be considered.

(6)      The court must keep a proper balance between public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest no doubt must prevail. But even when the offence is not of extreme gravity, that is not an indication that due weight does not need to be given to public interest.

Appellant’s health condition

47. The appellant received an operation on the day following the accident. One year later at the time of sentencing, his injuries were stabilized. According to the report written in March 2009 by the doctor responsible for his treatment, the improvement of his upper limbs was fair. He was able to hold a spoon, albeit with some difficulty, but could not lift up both arms. With a specially designed arm support, he could take food on his own. Walking ability and excretory function were the areas with satisfactory improvement. He was able to walk with support for long distance and was capable of self-voiding. The aim of the therapy provided was to maintain his self-care ability. The doctor in charge of his treatment was of the opinion that in the prison environment he could only obtain limited limb training and physiotherapy, so that there was a chance that his limb function would deteriorate. He suggested that he need continuous treatment by therapists at regular intervals and care provided by his family members.

48. There is also a report submitted by a Medical Officer of Stanley Prison in July 2009, which stated that when the appellant was transferred to the prison hospital in mid-March, his lower limbs recovery was well. He could stand up by himself and walk slowly with support. His upper limbs recovery was fair. He was provided with a mobile arm support by the physiotherapist and he could take food on his own. Arrangements were made by the prison hospital for him to attend the orthopaedic clinic of United Christian Hospital for follow-up treatment on two occasions in April and July, and to attend David Trench Rehabilitation Centre for physiotherapy on two occasions in April. According to this report, after he received physiotherapy for the second time, which was on 16 April 2009, no further physiotherapy was required.

49. The final medical report was submitted by the United Christian Hospital in October 2009, which stated that there was good union of bone graft in the cervical spine.  There were still numbness and weakness in his four limbs, with spasticity and pain.  During the last follow-up, which was on 30 September, he was able to walk slowly with a frame and under supervision.  He used a wheelchair in outdoor environment.  He was not suffering from incontinence.

50. The appellant claimed that during the period when he was serving his sentence, he had received only one session of physiotherapy.  He felt that his shoulder blades and the tendons of his arms and legs were wasting away, and that the function of his various organs deteriorated rapidly.  Since 7 May 2009 when he was granted bail pending appeal, he has been to Kowloon Hospital two times every week for physiotherapy.  He has also consulted practitioners of Chinese medicine.  He did not submit any recent medical report to the court.  He asked for suspended sentence in order that he could receive “concentrated treatment and better care”.

51. Both in his written submission and oral submission the appellant described in detail that owing to his physical condition, in every aspect of his daily life he needed assistance and care, and that only his family members would be able to take care of him with the requisite degree of consideration and attention, which would be unattainable in prison.  At the time of the accident, he was the sole breadwinner of the family.  His occupation was construction engineering technician, but his wife was not working because she had to take care of an infant son and an infant daughter.  After the accident, he has been living on insurance compensation, which can support him as a means of living for 2 to 3 years.  His relatives also gave him financial support.  Recently, he successfully applied for financial assistance from the patients fund of Yan Chai Hospital and used it for the purchase of medical equipment.

Medical facilities available in the prisons for disabled prisoners

52. At the request of the court, the Correctional Services Department submitted a report in October 2009 on the medical facilities available in the prisons.  If the appellant has to serve his sentence, he would most likely be sent back to Stanley Prison, where there is a hospital.  All prisoners upon admission to correctional institutions will be examined by Medical Officers and appropriate treatments or rehabilitation programmes such as physiotherapy or occupational therapy would be arranged for them if necessary.  If specialist consultation is required, they will either be treated by visiting specialists from the Hospital Authority or sent to outside clinics for treatment.

53. All along, the Correctional Services Department has been taking care of disabled prisoners, for example, prisoners suffering from quadriplegia, paraplegia or suffering from a paralytic stroke.  Para-medical services like physiotherapy and occupational therapy are provided for those prisoners by the department, whereas prostheses are provided by the Hospital Authority.  In addition, equipment such as wheelchairs, walking frames, crutches and handrails are available in the prisons.  At the time of the report, in the prison/prisons there was one prisoner suffering from paraplegia and several prisoners who could not walk properly and needed walking aids.

54. In addition to the existing rehabilitative programmes provided to prisoners serving their sentences, Medical Officers stationed in the prison can refer the appellant to specialists of the Hospital Authority for training and treatment.  The Correctional Services Department claimed that they were capable of providing adequate care to the appellant.

55. The Senior Public Prosecutor referred to sections 3 and 11 of the Prisons Ordinance, Cap. 234 and rules 72, 91, 143, 144 and 148 of the Prison Rules.  According to these provisions, there are Medical Officers in the prisons to take charge of medical matters.  A Medical Officer is responsible for the treatment of the prisoners when they are sick.  He shall report to the Superintendent about the health of the prisoners, and shall make daily visits to the sick in the prison hospitals.  If a prisoner cannot properly be treated in a prison, the Commissioner may order that the prisoner be taken to a government hospital or other suitable place for the purpose of treatment.  Every officer of the Correctional Services Department shall direct the attention of the Superintendent to any prisoner who appears to be out of health, and the Superintendent shall without delay bring such cases to the notice of the Medical Officer.

My finding

56. Having considered the physical condition of the appellant and the fact that the hardship he suffers in prison will be more than that suffered by an ordinary person, I hold that the trial judge, in reducing the term of 3 years’ imprisonment to 2 years, had not taken into account sufficiently the appellant’s predicament in prison.  There should be a further reduction.

57. However, I do not agree that the sentence should be changed to a suspended one.  Adjustment made to the sentence by reason of the appellant’s health condition must be within proper limits because of the necessity of maintaining proper standards of punishment.  Having caused the death of another person by driving dangerously under the influence of alcohol, the culpability of an offender of such a crime is grave indeed, because he selfishly disregarded the safety of other road users with the result that an innocent life was taken away.  The court must keep a proper balance between public interest and the exceptional hardship suffered by the appellant.

58. I understand that when the appellant serves his sentence in prison, the physical and mental suffering borne by him because of his inability to take care of himself will render his punishment more severe than that visited on an ordinary prisoner whose suffering is only deprivation of freedom.  The treatment and care provided by the Correctional Services Department certainly cannot be compared with those given by his wife and relatives, but the care provided by the Department is adequate, just as the care being currently provided to other disabled prisoners.  If it is necessary to do so, the Medical Officers in the prison can make arrangements for referring him to specialists of the Hospital Authority for training and treatment so that the recovery of his physical functions can be maintained.

59. The appellant claimed that he asked for a suspended sentence because he had the interests of his family at heart, and that he would strive to take care of himself as much as possible so as not to be a burden of his family.  Regardless of whether he is to serve his sentence in prison, that should be his target.

60. I find that in view of the appellant’s special circumstances, the appropriate term should be one third of the starting point, that is 1 year imprisonment.

Hon Tong J:

61. I concur with the judgment of Kwan JA. I allow the appeal and the term of imprisonment is reduced from 2 years to 1 year.

Hon Yeung JA:

62. This court unanimously allow the appeal against sentence, and by majority the term of imprisonment of the appellant is reduced from 2 years to 1 year, which shall take effect immediately.