HKSAR v. LAI SAI MING

CACC 77/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 77 OF 2015

(ON APPEAL FROM HCCC NO. 458 OF 2013)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.  On 12 November 2015, we refused leave to appeal against the applicant’s sentence of 8 years’ imprisonment and dismissed his appeal. On 19 November 2015, the applicant gave notice of his intention to apply for a Certificate under section 32(2) of the Court of Final Appeal Ordinance, Cap 484 that four points of law of great and general importance are involved in our decision.

2.  The parties have both indicated that they are agreeable to the application before this Court being determined on the papers.  To that end, we have received written submissions from the applicant and the respondent, as well as a reply to the respondent’s submissions from the applicant.

3.  The first question which is sought to be certified is framed as follows:

“In determining the appropriate sentence in manslaughter cases, should a court be required to nominate a starting point or was the trial judge (following the decision of the Court of Appeal in HKSAR v Wong Shui Mouk CACC 239/2007) right in saying that a starting point is in many cases a hindrance and an irrelevance?”

4.  This issue was not made a specific ground of appeal at the hearing of the appeal against sentence; it was never mentioned in either the applicant’s written submissions at the appeal or in the applicant’s reply to the respondent’s submissions; it did not feature at all in arguments presented before the Court; and neither HKSAR v Wong Shui Mouk (unrep., CACC 239/2007) nor the earlier case of R v Lee Sau Ping (unrep., CACC 189/1995) upon which it relied were cited to the Court.  It may be that counsel for the applicant regarded the principle as one which was binding on this Court.  Or it may be that the identification of a starting point in a case where the applicant has pleaded not guilty but been found guilty after trial has rather less significance in the sentencing process than in a case where he has pleaded guilty.  Whatever the position, it is not a point of great and general importance involved in the decision of this Court or, for that matter, the decision at first instance.

5.  It is often said that sentencing is an art and not a science.  There is, with respect, a great danger in over-analysing a judge’s set of reasons for sentence so that appellate courts are drawn into a minute dissection of everything a judge has said (or not said) in sentencing, resulting in a rarefied and wholly unrealistic argument as to the comparative value placed upon one factor as against another.  Judges are to be credited with a significant measure of common sense and discretion in the sentencing process.  That is particularly so where a judge has presided over a long trial (some 64 working days in this case), in which he must be taken to be fully conversant with the multiple, and sometimes complex, issues which have arisen in the overall context of that trial.

6.  In Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, a case of causing death by dangerous driving which applied the principles set out by the English Court of Appeal in R v Cooksley [2004] 1 Cr App R (S) 1 in this jurisdiction, Ma CJHC (as he then was) added this observation, at 668C-E:

“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 the crime, culpability is often the dominant factor … 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.”

7.  Accordingly, we decline to certify this question.

8.  The second question sought to be certified is as follows:

“Where a defendant is convicted of multiple counts of manslaughter (or other offences causing death) arising out of one incident, and where therefore the sentence for each count is to be served concurrently with each other, can his sentence for each count be enhanced by the consequences of multiple deaths, ie the presence of the other counts?”

9.  Counsel for the applicant has, with respect, not correctly understood what this Court said in applying the principles in R v Cooksley.  At paragraph 31 of its judgment, the Court said this:

“The significance of this matter is that where there is “more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable)”, an offender’s culpability is considerably aggravated: see R v Cooksley and others [2004] 1 Cr App R (S) 1.” (Original emphasis)

10.  Implicit in the jury’s verdicts of manslaughter, as the Court had earlier explained at paragraph 27 of its judgment, was the acceptance by the jury that:

“as a result of the (applicant’s) failure to keep a proper lookout, or to take effective action to avoid the collision, there was a serious and obvious risk of collision, and that, in the event of such a collision, there was a serious and obvious risk, not just that someone might be injured, but that someone might die;”

And, further, that

“he realised, or shut his eyes to the obvious possibility, that if he failed to keep a proper lookout or take effective action to avoid the collision, there was a serious and obvious risk of a collision, and that in the event of such a collision, there was a serious and obvious risk, not just that someone might be injured, but that someone might die.”

11.  We do not accept that there was any misreading or misapplication of the principles in R v Cooksley by either the trial judge or this Court, so that the tragic consequences of the applicant’s negligence were somehow erroneously detached from their forseeability.  A point of law of great and general importance, therefore, does not arise.

12.  Accordingly, we decline to certify this question.

13.  The third question sought to be certified is as follows:

“In sentencing for gross negligence manslaughter, is the fact that but for the negligence of others no one might have died, a mitigating factor that must be taken into account?”

14.  There is no reason to suppose that the judge did not take into account, in relation to the deaths of the 39 passengers on board the Lamma IV, evidence of the existence of other contributing factors to the tragedy, some of which he expressly cited at the outset of his remarks.  Accordingly, we cannot see that any point of great and general importance arises.  We agree with leading counsel for the respondent that the complaint is really about the value which the judge placed or did not place on those factors, which does not engage any point of great and general importance.

15.  Accordingly, we decline to certify this question.

16.  The fourth question sought to be certified is as follows:

“Is a general deterrent element appropriate in sentences for gross negligence manslaughter cases involving offenders who are entrusted with the carriage of passengers, which are not prevalent and which do not involve deliberately dangerous conduct, merely because of the gravity of the responsibilities they carry?”

17.  The applicant’s counsel, in her written reply, seems to be suggesting that this Court upheld the sentence of 8 years’ imprisonment on the basis that, in its view, the sentence ought to have contained a deterrent element.  Therefore, so the argument must go, this Court would have agreed that the sentence was manifestly excessive but for its view that it should have contained an element of deterrence.  In other words, this Court has invoked something which the trial judge expressly said he would not take into account in order to uphold the sentence and dismiss the appeal.

18.  With respect, this is both a misreading and a misconception of what this Court was saying in its judgment.  The Court was careful to say that its view of the question of deterrence did not assist the applicant, but nor did it disadvantage him either.[1]  The Court concluded, at paragraph 43:

“Notwithstanding our concerns about the absence of any mention of deterrence in the judge’s reasons for sentence, the overall sentence of 8 years’ imprisonment passed upon the applicant was, in our judgment, neither manifestly excessive nor wrong in principle.”

19.  It follows from the above, and the way the Court has carefully expressed itself, that had the trial judge considered the element of deterrence, the sentence in this case could have been higher.  However, the trial judge having expressly disavowed the need for deterrence in the sentencing exercise, and this Court having expressly not visited the consequences of its view of that decision upon the applicant, the question sought to be certified simply does not arise.  Accordingly, we decline to certify this question.

20.  The Court declines to certify each of the four questions sought to be certified.

[1] Court of Appeal Judgment, paragraphs 36 and 42