Read the full judgment text of CAAR 5/2018 on BabelCite. This Court of Appeal judgment was delivered on 23 December 2019 before Macrae VP, Pang JA and Zervos JA.
Criminal law – Road Traffic Ordinance (Cap 374) – dangerous driving causing grievous bodily harm contrary to section 36A – sentencing – review of sentence under section 81A of the Criminal Procedure Ordinance (Cap 221) – whether Community Service Order was wrong in principle and/or manifestly inadequate – whether immediate imprisonment inevitable for this offence – aggravating factor of offence committed at pedestrian crossing – dominant factor of culpability – objective dangerousness and moral culpability – comparison with authorities from England and Wales and Australia – appropriate starting point and discount for guilty plea – discretion to decline to substitute sentence where review delayed and Community Service Order already completed. The respondent drove through a red light at a pedestrian crossing at about 50 kph in Yau Ma Tei and struck three pedestrians, one of whom (PW1) suffered very serious brain injuries resulting in residual dysphasia, acalculia, right body paralysis and cognitive impairment, and another (PW2) suffered splenic laceration. The respondent pleaded guilty in the District Court and was sentenced by HH Judge Casewell to a Community Service Order of 200 hours, disqualification from driving for four years, and an order to take a driving improvement course. The Secretary for Justice sought review of the CSO on the grounds that it was wrong in principle and manifestly inadequate, contending that immediate imprisonment was inevitable for this offence. The Court of Appeal surveyed authorities in Hong Kong, England and Wales and various Australian jurisdictions, and held that the normal sentence for causing grievous bodily harm by dangerous driving is one of immediate imprisonment, with non-custodial options reserved for exceptional cases. The dominant factor in sentencing is the driver's culpability, comprising both the objective dangerousness of the driving and the moral culpability of the driver, with harm caused to victims as a closely allied factor. Offences committed at pedestrian crossings constitute a serious aggravating feature. The Court rejected the sentencing judge's characterisation of the driving as mere momentary inattention and his finding that the crossing provided only 'very fine margins'; the vehicle camera showed that the red light was visible for approximately six seconds before impact, with no braking until the last moment. The Court held that the sentence was both wrong in principle and manifestly inadequate, adopting a starting point of 18 months reduced to 12 months for the guilty plea and good character. However, the Court declined to substitute a custodial sentence because the respondent had already completed the CSO with commendations and had been under the cloud of review for more than a year, largely through the need to obtain comparative authorities. The application was allowed in part; the appropriate sentence was declared to be 12 months' imprisonment, but the original CSO was left undisturbed.
Legal issues: Whether a Community Service Order was wrong in principle or manifestly inadequate for causing GBH by dangerous driving at a pedestrian crossing · The appropriate sentence that ought to have been imposed at first instance · Whether to substitute a custodial sentence for the Community Service Order given completion of the CSO and delay
Outcome: Application for review of sentence allowed in part; the Court of Appeal declared that the sentence which ought to have been imposed at first instance upon the respondent's guilty plea was 12 months' imprisonment, but declined to disturb the original Community Service Order in the interests of justice.
Cited by 55 cases · Cites 7 cases