Secretary for Justice v. Tam Ying Yuen

CAAR 11/2022

[2023] HKCA 243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 11 OF 2022

(ON REVIEW FROM DCCC NO 129 OF 2022)

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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.The respondent pleaded guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (“RTO”), and one charge of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1) of the RTO. On 25 August 2022, Deputy District Judge Charles J Chan (“the judge”) sentenced the respondent to a total term of 9 months’ imprisonment and a disqualification order for 2 years, and an order to complete the driving improvement course within 3 months of completion of the disqualification period.

2.The Secretary for Justice applied for a review of the sentences imposed pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221. Leave was granted by Hon Poon CJHC on 30 September 2022.

3.We allowed the application for review against the respondent. We set aside the original 9 months’ sentence in respect of Charge 1 and replaced it by a sentence of 13 months, to run concurrently with the 3 months’ sentence in Charge 2. We increased the disqualification order from 2 years to 3 years. We now give our reasons.

Summary of Facts

4.At about 2252 hours on 17 July 2021, the respondent was driving a light goods vehicle along the 3^rd lane of Sha Tin Road towards Fo Tan with a passenger on board (“PW4” Mr Leung). He failed to stop and drove into a signal-controlled pedestrian crossing despite the “red” signal ahead. Two pedestrians (“PW1” Mr Lai and “PW2” Ms Leung), who were crossing the road, were hit by the respondent’s vehicle and both were caused to be thrown into the air and fell onto the ground.

5.Medical examination revealed that PW1 suffered fracture of right pelvis acetabulum and fracture of right great toe proximal phalanx. He was hospitalized for 6 days and was granted sick leave for 111 days until 5 November 2021. PW1 received physiotherapy on a regular basis and had a full recovery. PW2 suffered abrasions and minor head injury. She was admitted to Intensive Care Unit and Orthopaedic Clinic, but did not request for any sick leave. The respondent was charged for causing grievously bodily harm to PW1 by driving dangerously. (“Charge 1”)

6.A Screening Breath Test conducted by the police on the respondent at 2322 hours showed a reading of 112 micrograms of alcohol per 100 millilitres of breath. The respondent, upon arrest, revealed that he had consumed alcohol 2 hours before the accident. Another breath test conducted at 0039 hours on 18 July 2021 produced a reading of 71 micrograms of alcohol per 100 millilitres of breath. The respondent further revealed that he had two glasses of beer and wine that evening.

7.The respondent stated in a subsequent cautioned interview that he was driving at about 50km/hr. He saw the “red” signal upon reaching the crossing but reacted too slowly and failed to apply the brake in time due to his earlier consumption of alcohol, namely, a glass of beer and a glass of red wine at about 2100 hours. He drove because he considered himself to be sober after drinking.

8.PW4 confirmed that he drank with the respondent during their dinner at around 2030-2220 hours on the date of accident.

Mitigation

9.The following matters were put forward during mitigation:

(a)  The respondent was 50 years old at the material time. He was a factory supervisor (sharing a professional driver role and food preparation). He was married with 2 daughters. His previous criminal convictions dated back to a time when he was of young age. Although there was a record of “failing to comply with traffic signal” in March 2021, he had no similar previous record;

(b)  Whilst Secretary for Justice v Chu Wing Yin Christine[1]was referred to, counsel urged the Court to consider sufficiently the matters pertaining to commission of the offence and the background of the respondent, in particular, that the respondent only volunteered to drive PW4 home when PW4 suddenly felt unwell over dinner and failed to appreciate the risk pertaining to his alcohol consumption. Further, it was urged that the Court temper justice with mercy on the basis of issues of his younger daughter (she suffered from depression and post-traumatic stress) and other family circumstances.

Reasons for Sentence

10.A Background Report was obtained the contents of which were positive. Counsel mitigated heavily on the respondent’s family circumstances, ie. the medical conditions of the elders (his parent and parents-in-law) and mental condition of his younger daughter which required the extra care and the serious impact to the family if the respondent were to be imprisoned.

11.3 aggravating factors were noted by the judge:

(1)  the extent of intoxication;

(2)  the fact that the offence took place at a pedestrian crossing; and

(3)  that the respondent drove against the traffic light at the material time.[2]

12.The judge did not consider circumstances of the present case so exceptional to justify a non-custodial sentence. He pointed out that as the proportion of alcohol was tier 3, Charge 1 was committed in circumstances of aggravation and s.36A(6) of Road Traffic Ordinance operates to increase the maximum fine, term of imprisonment, and the minimum disqualification periods by 50%. Thus, the maximum sentence for charge 1 is increased to 10.5 years.

13.The judge adopted a starting point of 18 months’ and 6 months’ imprisonment respectively for Charges 1 and 2 and reduced them to 12 months and 4 months to reflect the respondent’s plea. That was further reduced by 3 months and 1 month respectively to reflect other mitigations. The resultant sentences of 9 months and 3 months were ordered to be served concurrently. The judge further ordered 2-year disqualification for each charge to run concurrently.

The Review Application

14.Mr Gary Leung ADPP(Ag) for the applicant advances the following grounds:

(1)  The 2 years’ disqualification in respect of Charge 1, which represents the minimum period where a person is convicted of an offence of causing grievous bodily harm by dangerous driving, failed to take into account the presence of circumstances of aggravation which warrants an enhancement of the statutory minimum by 50% to 3 years. This ground is conceded by the respondent;

(2)  The starting point of 18 months adopted for Charge 1 was wrong in principle and/or manifestly inadequate. In particular, when ordering the sentences of Charges 1 and 2 to run concurrently, the overall sentence of 9 months’ imprisonment failed to reflect that Charge 1 was committed in circumstances of aggravation: alcohol level amounting to tier 3;

(3)  The further reduction of 3 months for “all other mitigations” was wrong in principle. With offences of this nature and severity, especially when the respondent had made a conscious and voluntary decision to take the unjustifiable risk of drunk driving, family circumstances should be disregarded.

Total sentence

15.The applicant takes no issue with the concurrent sentence ordered for the two charges. It is submitted that any starting point of less than 24 months for Charge 1 would fail to properly reflect the seriousness and culpability in the circumstances of the present case. No further discount is warranted. The total sentence should not be less than 16 months’ imprisonment.

Respondent’s submissions

16.Leave was granted at the hearing for the respondent to adduce new evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221. The new evidence concerns the up-to-date medical and mental condition of the youngest daughter of the respondent.

17.Mr James Tze, appearing for the respondent, concedes that the disqualification period imposed should be 3 years as stipulated under section 36A(6) and (7) of RTO.

18.Mr Tze argues that the judge was entitled to adopt the 18 months starting point as he did, after assessing the respondent’s culpability in accordance with Chu Wing Yin Christine:

(a)  There was one victim (PW1) who suffered from grievous bodily harm as a result whereas in Chu’s case there were two victims;

(b)  the respondent was driving within the speed limit;

(c)  there was an aggravating factor that the respondent was affected by alcohol;

(d)  the respondent did not deliberately jump the crossing but was only reacting too slowly that he could not apply the brake in time;

(e)  PW1 had a full recovery; and

(f)  the respondent had no driving conviction since his obtaining of driving licence in 1991.

19.Relying on the case of HKSAR v Lau Ping[3], and the new evidence admitted on appeal in relation to the conditions of the respondent’s youngest daughter, Mr Tze contends the judge was entitled to take into account the condition of the respondent’s youngest daughter, his wife and the three elders[4] as a plea of mercy in giving a further 3-month reduction.

20.The total custodial sentence of 9 months was not wrong in principle nor manifestly inadequate taking into account every aspect and the relevant matter of the case.

21.Even if this Court were to conclude that the overall sentence was overly generous, Mr Tze submits that in view of the fact that (1) the respondent was due to be discharged from prison 13 days after the review hearing; (2) an appropriate discount would always be afforded to a respondent on a review, the interest of justice does not require the present sentence be increased.

Consideration

22.Unlike the offence of dangerous driving which attracts a maximum sentence on indictment of 3 years’ imprisonment, the offence of causing grievous bodily harm by dangerous driving carries with it a maximum sentence of 7 years. Circumstances of aggravation are defined in s.36A, sub-s.(7) as:

“(a) the proportion of alcohol in the person’s breath, blood or urine is tier 3;

(b) any concentration of a specified illicit drug is present in the person’s blood or urine.”

23.The proportion of alcohol in the respondent’s breath was 71 micrograms of alcohol which is way over the prescribed limit of 22 micrograms. It was not disputed that the tier 3 factor is present and the offence is committed in circumstances of aggravation. The judge rightly pointed out in circumstances of the present case, by operation of sub-s.(6), the maximum term of imprisonment is increased by 50% to 10.5 years.

24.On the other hand, the appellant in Chu’s case faced one count of dangerous driving causing grievous bodily harm with no circumstances of aggravation. We note from the authorities, for dangerous driving (with or without causing GBH) aggravated by drugs or alcohol, the customary range of sentence is between 20 months to 28 months: HKSAR v Mok Lai Man, Edward[5]; SJ v Ko Wai Kit Paul[6]; HKSAR v Lee Wai Ping[7]; HKSAR v Ko Yun Sang[8].

25.The gravamen of the presence of circumstances of aggravation in respect of Charge 1 is the deliberate/conscious decision to drive and assume the risks of endangering other road users albeit that the respondent was under the influence of alcohol. That risk, unfortunately, was realized in the present case.

26.Whilst the judge correctly identified the 3 aggravating features, a fourth was never addressed to by either counsel or the judge. Apart from 2 pedestrians who were lawfully and properly using the pedestrian crossing being knocked down, the respondent also put his own passenger, PW4, at risk. Although Mr Tze made a zealous attempt to argue that this factor must have been alive and considered by the judge, that is not as transpired during the dialogue between the judge and counsel during mitigation as revealed in the transcript. The judge stated that “categorically there are three aggravating factors”[9] and the conversation went on as follows:

“Court: And he didn’t mean to commit the offence of course.

Mr McGowan: Yes.

Court: On the other hand, what about Mr Leung. Was he on the vehicle or not at the material time?

Mr McGowan: Yes, he was.

Court: So it was on the way taking him home?

…

Court: So just back to the start, he was not about to drive to anywhere but for the reaction or the emergency happened to Mr Leung?

Mr McGowan: Yes, that’s correct, he was going to follow his normal procedure which was to…

Court: Take the bus, go home, sleep.”[10]

27.Contrary to Mr Tze’s submission, not only did the judge fail to consider having a passenger on board the respondent’s vehicle when he was under the influence of alcohol an aggravating feature, driving a friend who suddenly became unwell home was advanced by counsel as a background or even mitigation.

28.In examining the judge’s reasons for sentence, we are of the view that he has failed to take this relevant aggravating factor into account and that is an error of principle: Wong Chi Fung[11].

29.Mr Tze argues that the respondent was affected by alcohol and was too slow in reacting to the red light, he did not deliberately jump the red light. We do not think that this is something to the respondent’s advantage, nor was the fact that he had only driven a fraction of his prospective journey before the accident occurred. The respondent was deliberately and consciously assuming the risk, not restricted to the general public but also to his own passenger, after drinking.

30.That said, adoption of the same starting point of 18 months stated by the Court of Appeal to be appropriate in Chu Wing Yin Christine’s case, in the present case is unjustifiably low. That starting point fails to sufficiently reflect the very serious aggravating feature of driving under the influence of tier 3 level alcohol, the gravity of which is reflected in the provisions for enhancement of sentence. We come to the view that for the circumstances of the present case, a proper starting point for Charge 1 is 30 months’ imprisonment.

31.We now turn to the 3 months further discount. It has always been said by the courts that in cases of severity, the sentencing purpose of general deterrence, denunciation and protection of the public are accorded particular weight and family circumstances, even when mitigating factors are not insubstantial, weigh very little: The Victorian Court of Appeal in Woldesilassie v The Queen,[12] quoted in the judgment of Chu Wing Yin Christine.

32.Mr Leung sought to distinguish the present case from Secretary for Justice v Cheng Tsz Hin[13], in that the PTSD suffered by the respondent there arose from the guilt he felt over what he had done which the Court of Appeal saw as an “extreme form of remorse, … which manifests itself in a medical disorder”[14] and can constitute a mitigating factor warranting an additional discount. Mr Leung contends that the condition of the respondent’s youngest daughter is completely different in nature and should not warrant any further discount.

33.It cannot be said that a plea of ad misericordiam can never be afforded weight in sentencing. The extension of mercy “has always been part of a judge’s armory in dispensing justice”: HKSAR v Bayanmunkh[15].

34.An unpleasant incident occurred to the respondent’s youngest daughter in October 2021 and a report was made to the police. She then exhibited suicidal intent and a few actual attempts were made, the latest in November 2022. A letter from a psychiatrist, Dr Ma Yin Ying, admitted as new evidence on appeal, reveals that her suicidal ideation is still active and risk is high. It is opined that the respondent’s youngest daughter suffers from Major Depressive Disorder and she is highly recommended to receive in-patient psychiatric treatment. At the hearing, we made enquiries with Mr Tze and were told that she refused to go for treatment. We raised our concern and expressed that appropriate measures should be put in place for her protection. Given this exceptional circumstance, we defer to the judge’s discretion in granting the 3-month discount.

Result

35.We find that the sentence in Charge 1 is wrong in principle and/or manifestly inadequate. We allow the application for review and set aside the original sentence of 9 months’ imprisonment. We consider a starting point of 30 months’ imprisonment appropriate and that is reduced to 20 months on his plea. We defer to the judge’s discretion in granting a further 3 months’ discount for the respondent’s family circumstances. As this is an application for review of sentence, account is taken of the “dashed hope of pending release” in 13 days after the review hearing, a further discount of 4 months is afforded to the respondent. We substitute for Charge 1 a sentence of 13 months. As there is no specific application concerning Charge 2, the sentence in that charge will remain undisturbed, to be served concurrently with that in Charge 1.

36.The disqualification order in respect of Charge 1 is increased from 2 years to 3 years.

Mr Gary Leung, ADPP(Ag.) of the Department of Justice, for the applicant

Mr James Tze, instructed by Director of Legal Aid, assigned by Director of Legal Aid, for the respondent