HKSAR v. Law Siu Kuen

HCCC 188/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 188 OF 2009

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Before: Hon Wright J in Court

Date of Hearing: 1 and 3 December 2009

Date of Reasons for Sentence: 3 December 2009

Offence: (1), (3), (5), (7) & (9) Manslaughter (誤殺)

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REASONS FOR SENTENCE

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1.I preface my reasons for sentence by referring to a quotation appearing, and to general observations made, in an appeal heard in England in 2003 (see Cooksley and Ors v R [2003] EWCA Crim 996, [2004] 1 Cr App R (S) 1) which, although discussing the offence of dangerous driving causing death, are of equal applicability to the offence of manslaughter where death follows upon a motor collision:

"This offence causes particular difficulty for sentencers. By definition, it is one which always gives rise to extremely serious harm: the death of at least one victim ... Understandably this often leads to calls from victims' families, and from the wider community, for tough sentencing. On the other hand, an offender sentenced for causing [such a] death … did not intend to cause death or serious injury, even in the extreme case where he or she deliberately drove for a prolonged period with no regard for the safety of others.”

and later

“iii) Where death does result, often the effects of the offence will cause grave distress to the family of the deceased. The impact on the family is a matter that the courts can and should take into account. However, as was pointed out by Lord Taylor CJ in Attorney General's References Nos. 14 and 24 of 1993 (Peter James Shepherd, Robert Stuart Wernet) [1994] 15 CAR (S) 640 at P644:

"We wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence. We recognise that no term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, nor will it cure their anguish."

iv) A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result …on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standards of driving. Motor vehicles can be lethal if they are not driven properly …”

2.There is another matter. I cannot speak for reports which have appeared in the Chinese press but reports which have appeared in both English language daily newspapers since the matter came before me contain serious factual errors of reporting which have the effect, superficially at least, of making what happened at the time of the offence, as much of a tragedy is that already is, appear appreciably worse. For example one of the newspapers reported that the accused was more than seven times over the prescribed alcohol limit - a gross exaggeration - the other that the taxi had been pushed backwards 590 m down the road when, in truth, it was a matter of feet.

3.Inaccurate reports of this kind mislead the public into thinking that the sentences disregarded the facts and in the outcry that often follows, the families of the victims, placing faith in what the papers have reported, and being influenced by the public reaction to those reports, are left with a sense of grievance at what they then believe to be an unjust result. In this particular case, the irresponsibility is aggravated by the fact that the reports were published between the time the accused pleaded guilty to the offences and when the summary of facts was read out in open court and admitted by the accused.

4.The factual basis upon which you are to be sentenced is, in summary, the following, based largely upon the summary of facts but also with reference to the photographs: on 22 January 2009 your employer telephoned you and asked you to drive to Guangzhou the following day to fetch some goods. Shortly after 7 AM on 23 January 2009 you were driving what is called a medium goods vehicle along Castle Peak Road in the vicinity of Lok Ma Chau in a westerly direction. The vehicle had an enclosed load area behind the cab resembling, to some extent, a small shipping container. It was a very substantial lorry weighing in excess of 8 tonnes.

5.At that point Castle Peak Road comprises a single carriageway, carrying two lanes of traffic, one in each direction. Each lane is easily wide enough to accommodate a large vehicle of the size you were driving. The road was substantially straight for a considerable distance in each direction from the point of collision although, well before the scene of the collision, you had negotiated a right-hand bend. In your favour it must be said that there is no suggestion that your vehicle was travelling at a speed which was excessive in circumstances.

6.As you approached a bus layby on the northern side of the road, your vehicle was seen to drift - I use that word to distinguish this from a sudden movement resulting in a change of direction - towards and then to cross the centre broken white line which divided the two lanes. It was there, on the incorrect side of the road insofar as your direction of travel was concerned, that your vehicle came into collision with a taxi which had been travelling in the opposite direction. That taxi contained its driver and five passengers all, like yourself, family men. They were on their way to work.

7.The force of the collision was such that the taxi spun around to face in the direction from which it had come and eventually came to rest on the pavement at the western end of the bus layby. At some stage, and it is not clear to me just when, your vehicle toppled on to its near side and ended up at an angle across the northern pavement, the western end of the bus layby and the eastbound lane of the road, with its rear protruding into the westbound lane and the cab penetrating a fence adjacent to the northern pavement, hanging over an embankment and resting against a tree.

8.The front of the taxi was up against the underside of your lorry. It is no exaggeration to say that it had been destroyed in the collision. All six persons in the taxi died.

9.After police arrived at the scene and you were released from the cab of your lorry, the police smelled alcohol on you. At about 7:55 AM you were required to undergo a screening breath test which provided a result of 93 µg of alcohol per hundred millilitres of breath which is some four times the prescribed limit. You were arrested. You were taken to North District Hospital where, soon after 9 AM, a blood sample was taken from you which, after analysis, showed the level of alcohol in your bloodstream at that time to be not less than 153 µg per hundred millilitres. You have accepted that it may have been higher than that at the time you drove. The prescribed limit is 50 µg per hundred millilitres.

10.At the scene of the collision you provided two, slightly different, versions of how the collision occurred to two different police officers: at hospital you provided a third, markedly different, version to a third police officer.

11.In the passage of time you were charged with and committed to the Court of First Instance for trial on six counts of manslaughter to each of which there was an alternative count of dangerous driving causing death contrary to s. 36(1) of the Road Traffic Ordinance, Cap. 374. Each of the manslaughter offences carries a maximum penalty of life imprisonment whilst each of the statutory offences carries a maximum of 10 years imprisonment. You indicated at an early stage your willingness to plead guilty to each of the alternative charges. The prosecution was not prepared to accept those pleas. You persisted in your pleas of not guilty to the manslaughter charges until you were arraigned on the first day of what was to be your trial. You then entered a plea of guilty to each of the manslaughter charges. Today you agreed the summary of facts and have been convicted of each of those counts.

12.I indicated to your counsel on the first day of trial that, on the specific facts of this case as they appeared to be at that stage, I saw it as being unlikely that any effective distinction could be made for the purpose of sentencing whether you were to be convicted on the main counts or the alternative counts. I emphasise, however, that I am sentencing you for the offence of manslaughter, not for that of dangerous driving causing death.

13.The basis upon which the prosecution had indicated that it would proceed on the manslaughter charges was one of "gross negligence" manslaughter in that it was the level of alcohol in your bloodstream and its consequent effect upon your ability to drive that was the factor upon which it primarily relied. That would have been a feature upon which it would have been entitled to rely also in respect of each of the alternative charges by virtue of the provisions of s.36(4) and, particularly, 36(7)(c), in addition, of course, to the fact that you drove your vehicle in such a manner that it went onto the wrong side of the road and was involved in the collision.

14.The decision of the English Court of Appeal to which I referred earlier, Cooksley, laid down guidelines and generally sought to categorise levels of conduct which would attract different levels of sentence. Of particular significance in that judgement is the fact that the consumption of excess alcohol is regarded as an aggravating feature in a charge arising from a motor vehicle collision in which a person or persons were killed which may result in the conduct of the driver as being in the "most seriously culpable" category. It is the level of culpability of the conduct of the convicted person which is to be the dominant component when considering sentence although the consequences of that conduct, including the fact that more than one person may have been killed, is not to be ignored.

15.In this connection the Court of Appeal said:

“Even where there is no reason to suggest that the defendant is knowingly putting more than one person at risk, the fact that the consequences of dangerous driving are particularly serious, for example, involving multiple deaths is a relevant factor as to the length of sentence. That is the view that will be taken by the public. However, we are certainly not suggesting that the sentence should be multiplied according to the number of persons who sadly lose their life. It is still necessary to regard the offender's culpability in relation to the driving as the dominant component in the sentencing exercise. While the sentence is increased to reflect more than one death the sentence must remain proportionate to the nature of an offence which does not involve any intent to injure.”

16.The Court also identified, by adopting the recommendations of a report before it, a number of features which were to be regarded as aggravating and others which were to be regarded as mitigating. I have had regard to those factors in arriving at my decision.

17.In a later decision, Richardson and Others v R  [2006] EWCA Crim 3186, in which the Court of Appeal was asked to revisit the earlier guidelines it observed:

“22.   …. The consumption of alcohol is deliberate. Everyone knows, or should know, that the consumption of even small quantities of alcohol undermines the ability of any driver to apply his full concentration to the road. Where the consumption is high, it is effectively extinguished. Alcohol makes a driver personally unfit to drive, and the car of which he is in control becomes as dangerous with him at the wheel as if it were subject to a serious known, potentially fatal, mechanical defect. Looking at the matter broadly, there is never any acceptable excuse for driving a vehicle when the ability to do so properly is impaired by alcohol or drugs. …[The] depressing feature [of the offence] is that it is often committed by men and women who are otherwise responsible drivers, of positive good character, who in the normal course of events would never contemplate committing any criminal offence. After the accident their remorse is instantaneous and genuine. Their own lives are scarred with the knowledge that they have killed another human being when, if they had been completely sober, the fatal accident would probably not have occurred.

23.    The message, however is stark and unequivocal. Driving under the influence of drink or drugs is a serious offence. If there is a consequent road traffic accident in which death results, the consequences are catastrophic for the deceased and his or her family, and however excellent the character of the offender, and genuine his remorse, for all effective purposes, a custodial sentence is inevitable. …”

remarks which are entirely appropriate to your conduct.

17.                                   The principles enunciated in Cooksley have already been considered with approval by the Court of Appeal in Hong Kong in Secretary for Justice v POON Wing Kay [2007] 1 HKLRD 660. That was a case in which the drivers of two public light buses engaged in racing with one another which resulted in a collision between one of them and a taxi and then between the two of them with the consequent death of two passengers and injuries to many more. The then maximum term for dangerous driving causing death was five years imprisonment and that was the sentence substituted by the Court of Appeal on the application for review. The court described the defendants’ conduct as reckless, prolonged, persistent and deliberate; the standard of driving as "appalling and... totally unacceptable"; the defendants had “appalling” traffic offence records. The Court observed:

“In our view, what the defendant did come (sic) within the worst category of the type of offences under consideration. In no other cases cited to us have the facts being so bad. The utter disregard for the lives and safety of others may well have attracted manslaughter charges where upon conviction, sentences in excess of five years might well have been imposed. Be that as it may, although we suppose worse facts than the present case can conceivably exist, this does not mean that maximum sentences should not be imposed. It is to the category or type of seriousness or culpability that the court looks when sentencing.”

18.It seems clear that had the court not been subject to the statutory limit of five years imprisonment, a sentence substantially in excess of that allowed in the application would have resulted.

19.I have had regard to all of the various decisions relating both to manslaughter resulting from the driving of a vehicle as well as dangerous driving causing death which have been made available to me by counsel, including R v CHIU Tat-shing, Dennis (1985) 2 HKC 487; A-G v CHUNG Yun-chow [1986] HKLR 109; R v CHANG Wai-kwan (1994) 2 HKCLR 109; HKSAR v LAM Wai-man [1999] 3 HKLRD 855; HKSAR v MOK King-yin [2002] 2 HKLRD 76; HKSAR v Park Myung Hwa [2004] 3 HKC 564; HKSAR v SIN Kit-sang [2006] 4 HKC 472 . That said, it is unhelpful to attempt to compare, other than in broad terms, the conduct and consequences of one set of conduct with those of another for sentencing purposes in matters of this nature. Reference to sentences imposed in previous decisions can do little more than provide broad guidance. Each matter is entirely fact sensitive.

20.The predominant factors in your case are threefold: that you were driving a large, heavy lorry whilst your blood alcohol level exceeded three times the prescribed limit; that you drove that vehicle at a time when an experienced and professional driver such as you would have appreciated that he had been deprived of any meaningful periods of sleep for a substantial period; and that six people were killed as a result of your conduct. I accept that there were no further aggravating features. Disregarding, for one moment, the effect of the alcohol on your ability to drive, the very nature of the vehicle which you were driving renders it capable of potentially causing significantly worse damage than a smaller or lighter vehicle. You must have been aware that any accident in which your vehicle may become involved conceivably would have had dire consequences - yet you willingly drove it at a time when your faculties were impaired by alcohol, entirely disregarding the effect your conduct may have on other people.

21.I am aware of the mitigating factors which have been advanced on your behalf. I am told, and have no reason to query, that you had been awake from 6 AM on 22nd January and had worked that day which involved loading your vehicle in the mainland, driving to Hong Kong and unloading your vehicle: you had planned to spend the night in Hong Kong in order to marry the mother of your daughter on the morning of 23 January: as it happens that marriage did not come to pass at that stage but you have since married her: you arranged to meet a friend to have a meal around about midnight between 22nd and 23rd of January but your friend was not there so you had a short sleep for about an hour before joining him around 1 AM: you then ate and drank, you say you shared nine bottles of beer, between then and 5 AM whereafter you made a conscious decision to drive. You say, and this appears to be supported by the evidence generally, that you dozed off whilst at the wheel and it was that that caused this accident.

22.Your own version thus may be summarised, without unfairness to you, as being that you had one hour's sleep in the preceding 24 hours, and then sat drinking with a friend for some four hours, to the extent that your blood alcohol level was over three times the prescribed limit, and then elected to drive your lorry.

23.I accept that, since the accident, you have shown genuine remorse which, to the court, has manifested itself in your pleas of guilty. I have no reason to doubt the sincerity of your remorse: I elected to have your letter addressed to me read by your counsel in Chinese in the hope that the remorse which you express in it will be properly communicated to members of the families of the deceased. You are a professional driver and have been driving vehicles generally since 1986: you have several minor traffic offence convictions, but nothing of any real consequence. I have had regard to the contents of the other letters put before me although, it has to be said, they are of very limited assistance to you. You are a family man: the effect on your wife and your daughter will be great. Just as the families of those people in the taxi will be reminded of the loss of their family members on a daily basis, so will you live, not just for the period of your sentence but the rest of your life, with the daily knowledge that it was your conduct which led to the death of the six people. I take all of these facts into account in your favour.

24.The offence of manslaughter is the one instance where a judge is not obliged to identify a particular starting point followed by arithmetical adjustments brought about by aggravating and mitigating features. I do not propose to nominate a starting point but, rather, to look at the sentence in the round.

25.A feature of the consequences of your conduct is that six people died. I take that fact into account in assessing the appropriate sentence which reflects your overall criminality but would be entirely artificial, in these circumstances, to impose on individual counts a sentence other than the appropriate sentence for the conduct as a whole.

26.I have given consideration to whether I should impose an order disqualifying you from holding or obtaining a license to drive a motor vehicle. Given the length of the sentence which is to be imposed if I were to impose a period of disqualification longer than the period of imprisonment the period of disqualification itself would be disproportionately long. A vital factor in a discretionary disqualification is the necessity to protect members of the public: in your case I do not foresee any real prospect of reoffending. However, it seems to me in the interests of road safety both because of the circumstances of this accident and because, by the time of your release, you will have been away from the wheel of a motor vehicle for a substantial period of time, that you should be disqualified from holding or obtaining a licence to drive all classes of motor vehicles until such time as you pass a test of competence to drive prescribed under the Road Traffic Ordinance. I make that order.

27.In my judgment the appropriate period of imprisonment for you to serve is one of 6 years imprisonment: that is the sentence which I impose on each of counts 1, 3, 5, 7, 9 and 11 each of which sentences is to be served concurrently with the others.

Mr Michael Arthur, on fiat, and Miss Teresa Kam, Senior Public Prosecutor of Department of Justice, for the HKSAR

Mr Geoffrey Chang, instructed by Messrs Tai, Mak & Partners, assigned by Director of Legal Aid, for the Accused.