Secretary for Justice v. Law Siu Kuen

CAAR 9/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 9 OF 2009

(ON APPEAL FROM HCCC NO. 188 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Yeung JA and Yuen JA in Court

Date of Hearing: 14 December 2010

Date of delivery of Judgment: 12 January 2011

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.Pursuant to leave granted on 23 December 2009, this is an application for review of sentence under s. 81A of the Criminal Procedure Ordinance, Cap. 221.

2.The application relates to concurrent sentences of six years’ imprisonment passed upon the respondent by Wright J on 3 December 2009 in relation to 6 counts of manslaughter, contrary to common law and section 7 of the Offences Against the Person Ordinance, Cap. 212, to which the respondent had pleaded guilty.

3.The applicant asserts that those sentences are manifestly inadequate.

4.There is a further complaint that whereas the judge ordered the respondent to take a driving test before being permitted to drive again, he should have ordered in addition a fixed period of disqualification longer than the term of imprisonment.

5.The application was heard on 14 December 2010.  Given the unusual features of the case, to which we shall refer, we reserved judgment.

6.In the result, we are satisfied:

(1)   that the sentences of imprisonment imposed were manifestly inadequate; but

(2)   that because of the representations as to sentence made to the respondent by the sentencing judge in which prosecuting counsel acquiesced, which led the respondent to plead guilty to manslaughter, it would be contrary to principle to interfere with the sentences of imprisonment; and

(3)   that the order of disqualification from driving was inadequate, and that it is open to us to interfere with that order.

The facts

7.The facts are drawn from the summary of facts presented upon the plea of guilty and accepted by the respondent as accurate.

8.In January 2009，the respondent, then aged 42 years, was a professional driver employed by a transport company to drive a medium goods vehicle which had an unladen weight of 8.075 tonnes.  He was the holder of a current Hong Kong driving license and had been licensed to drive a private motorcar and a light goods vehicle since 26 August 1986 and to drive a medium goods vehicle since 15 February 1997.

9.On 22 January 2009 he was instructed by his employer to drive to Guangzhou the next day to collect goods and bring them back to Hong Kong.

10.Shortly after 7 am on 23 January, he was driving the truck, unladen, in a westerly direction along Castle Peak Road towards Yuen Long and the Lok Ma Chau border control point.  The truck was described by the judge as “ a very substantial lorry.”

11.At the same time, Yu Yat-hing, aged 54 years, was driving a taxi in an easterly direction along Castle Peak Road in the direction of Sheung Shui.  There were five passengers in the taxi; each one of them an iron fixing worker working at a construction site at Lok Ma Chau.  They were travelling to work in the taxi.  The passengers were aged between 30 years and 49 years.

12.The weather conditions were fine.  Visibility was good.  It was daylight.  The road, at the part relevant to this case, was straight with intermittent white lines and was dry and in a good state of repair.  Traffic conditions were light.

13.As the taxi and the truck moved closer to each other the respondent’s truck crossed the centre line onto its incorrect side and moved straight into the path of the oncoming taxi.  A very heavy head-on collision occurred in the eastbound lane, that is, the lane occupied by the taxi.  The collision occurred at about 7.09 am.

14.There was no action which the taxi driver could have taken to avoid the collision and no criticism has at any stage been made of his driving at the material time.

15.The tragic consequence of this collision was that the taxi driver as well as his five passengers were immediately killed.  Each had suffered multiple injuries, including injuries to the head and body trunk.

16.The taxi had been pushed backwards towards the pavement of the eastbound lane, knocking down two metal railings and spinning 180 degrees before coming to a halt.  The respondent’s truck continued moving into the eastbound lane after the impact and then overturned and stopped in the lane and on the pavement.

17.The taxi and the truck were subsequently examined by a motor vehicle examiner from the Transport Department who concluded that neither vehicle had any mechanical failure which could have caused or contributed to the collision.

18.After the arrival of the police and an ambulance, the respondent was assisted from the truck and complained of pain in his neck and an abrasion to a finger.  He told a police officer that when he reached Castle Peak Road, a motorcycle, the registration number of which he was unable to provide, suddenly came out from the pavement on his nearside and that as a result he swerved suddenly to his right and collided with the taxi.

19.About 10 minutes later, he told another police officer that he had been travelling in fourth gear at a speed of about 50 kilometers per hour – which was the speed limit on that stretch of road – and on reaching the accident location, a motor vehicle suddenly appeared on his nearside which he swerved to avoid and then his truck overturned.  He did not know where the taxi had come from.  There was, he told this officer, nothing wrong with the brakes on his vehicle.

20.However, none of the several eyewitnesses to the accident observed a third vehicle in any way involved in the accident or its cause. These two inconsistent accounts were further contradicted by the account given by the respondent after he had been admitted to hospital, where he told an officer that he had been travelling at about 60 kilometers per hour and that when he reached the location of the accident he had heard a loud bang, and lost control of his vehicle which was driven to the right and overturned.

21.Officers at the scene of the accident noticed that the respondent smelt strongly of alcohol, that his eyes were dull and bloodshot, that he was slow in his movements and that his speech was slow and slurred.

22.At 7.55 am, a breath test was conducted which provided a reading of 93 micrograms of alcohol per 100 millilitres of breath.  That is more than four times the prescribed limit, namely, 22 micrograms of alcohol in 100 millilitres of breath.

23.The respondent was then taken to hospital where at 9.13 am, a specimen of blood was extracted from him and the specimen contained not less than 153 milligrams of alcohol per 100 millilitres of blood, whereas the prescribed limit is 50 milligrams of alcohol in 100 millilitres of blood.  The point is made in the summary of facts and accepted by the respondent that since approximately two hours had passed since the accident, it can safely be assumed that at the time of the accident the blood alcohol concentration was significantly higher even than that, namely, not less than 183 milligrams of alcohol per 100 millilitres of blood.

The indictment and pleas

24.There were 12 counts upon the indictment.  Each of the six odd-numbered counts charged manslaughter of one of the men killed in the accident.  Each of the six even-numbered counts charged, as an alternative to the preceding manslaughter count, dangerous driving causing the death of one of the men killed, contrary to s. 36(1) of the Road Traffic Ordinance, Cap. 374.

25.The respondent had indicated at an early stage that he was prepared to plead guilty to all the counts alleging dangerous driving causing death, but this was not acceptable to the prosecution and in the face of the respondent’s announced intention to plead not guilty to any of the manslaughter charges, proceedings commenced on 1 December 2009 with a view to empanelment of a jury.

26.At the commencement of the hearing on 1 December 2009, there was an exchange between counsel and the judge concerning photographs, a view of the accident location and other case-management matters.

27.The judge then made certain comments, the effect of which was to indicate to the respondent that he, the judge, had in mind sentences following pleas of guilty to the manslaughter counts no different from such sentences as were called for by pleas to the counts of dangerous driving causing death.  These comments by the judge have a significant bearing on this application and to their detail we must later return.

28.Shortly after these comments, the respondent was arraigned, pleaded guilty to the counts of death by dangerous driving and not guilty to the manslaughter counts.

29.But there was then an adjournment for about 40 minutes after which counsel for the respondent indicated to the court that the respondent had decided to plead guilty to the six manslaughter counts.  Those counts were put to him again and he pleaded guilty.  There was therefore no need for a jury.  Mitigation was advanced and the respondent was sentenced upon his pleas.

The mitigation advanced

30.The respondent was a person of previous good character, save for a minor matter of no present consequence when he was aged 15 years.  Between 2005 and 2009 he had accumulated four speeding infringements, though none in themselves of particular seriousness, and one offence of using a mobile telephone whilst the vehicle was in motion.  His home was in Shenzhen although he maintained a residence in Hong Kong as a tenant of a public housing flat.

31.Mitigation advanced on his behalf was to the effect that on 22 January 2009, he had awoken at about 6 am in Shenzhen, driven a loaded truck to Hong Kong, driven back to Guangzhou to load goods, drove them back to Hong Kong where he finished unloading goods in Kwai Chung before midnight.  He planned to be married the next morning in Shatin to a lady with whom he had been living for some years and with whom he has a daughter, now aged about eight years.  He planned to stay in Hong Kong overnight, and the following afternoon to pick up goods in Guangzhou.

32.However, that night he met a friend at a restaurant and, before his friend arrived, he took a nap for about an hour in the cabin of his truck.  He woke up around 1 am and he and his friend ordered and consumed beer.  The mitigation advanced described the respondent as a “habitual drinker”, although the point suggestedly thereby made is that he was therefore reasonably tolerant to alcohol.  At about 2 am, he was told that because her re-entry permit expired, his partner would not be able to come to Hong Kong in the morning for the marriage.  

33.He and his friend continued drinking until about 5 am.  Each consumed about nine bottles of beer at the end of which, the respondent felt confident that he was able to drive.  There was, it was said, no need, given the time of day, for him to stay in Hong Kong for the night and he intended to drive back to the border restricted area where he could sleep for a few hours.  He dropped his friend off at home and then intended to fill his truck tank with petrol.  He moved off the expressway into Castle Peak Road intending to go to a petrol station.  The suggestion was made that the respondent did not feel drowsy or sleepy but that soon after entering Castle Peak Road he dozed off “momentarily”.  The accident then occurred.

34.The court below was urged to accept that the respondent was shocked and deeply remorseful, had joined a church and had made speeches in which he had expressed his regrets and pains.

Reasons for sentence

35.In his reasons for sentence, delivered on 3 December 2009, the judge referred to observations made in a seminal English case on the subject of sentencing for dangerous driving causing death, namely, Cooksley and Ors v R [2003] EWCA Crim 996, saying that the observations there advanced were equally applicable to the offence of manslaughter where death follows upon the motor collision.  The judge also said:

“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… 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.”

36.The judge acknowledged that the excessive consumption of alcohol was a serious aggravating factor as was the fact that this was a case involving multiple deaths.  He referred to a passage from the judgment in Richardson and Others v R [2006] EWCA Crim 3186 in which it was said that:

“… 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….

… The message … is stark and unequivocal.  Driving under the influence of drink … is a serious offence.”

37.The judge referred to a number of other decisions, remarking that reference to sentences imposed in previous cases could do little more than provide broad guidance, since each case was fact sensitive.

38.The judge said that the predominant factors in the respondent’s case were threefold, namely, that he was driving a large, heavy lorry whilst his blood alcohol level exceeded three times the prescribed limit; that he did so at a time when he, as an experienced and professional driver, 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 his conduct.  The very nature of the vehicle which he had been driving rendered it capable of potentially causing significantly worse damage than a smaller or lighter vehicle.  “You must have been aware,” he said “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.”

39.The judge accepted that there was 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.”  He referred then to the fact that the respondent was a family man and that the respondent would live for the rest of his life with the daily knowledge that it was his conduct which led to the death of the six people.

40.As is common in the case of manslaughter sentencing, the judge did not nominate a starting point and was of the view that the appropriate period of imprisonment in relation to the offences was one of six years’ imprisonment, which is the sentence which he imposed on each of the manslaughter counts, each such sentence to be served concurrently, making a total of six years’ imprisonment.

41.In relation to disqualification from holding or obtaining a license, he said that were he to impose a period of disqualification longer than the period of imprisonment, the disqualification itself would, in his judgment, be disproportionately long.  A vital factor, he said, in a discretionary disqualification, was the necessity of protecting members of the public but in the respondent’s case, he foresaw no real prospect of re-offending.  However, he thought it appropriate, because of the length of the sentence, that the respondent should pass a test of competence before he drove again after his release from prison and, accordingly, the judge ordered the respondent to be disqualified from holding or obtaining a license to drive all classes of motor vehicles until such time as he had passed such a test as is prescribed by the Road Traffic Ordinance.

The grounds of the application

42.The applicant contends that:

(1)   the sentence imposed failed to accord sufficient recognition to the gravity of the offence, marked in this case by gross irresponsibility in driving a heavy truck when seriously intoxicated and fatigued;

(2)   the judge failed to accord sufficient recognition to the magnitude of the consequences of the respondent’s conduct, namely, the death of six persons;

(3)   the judge erred in his approach to the appropriate sentence for manslaughter in that he wrongly formed the view that no effective distinction was in the circumstances of this case to be made for sentencing purposes between manslaughter and dangerous driving causing death; and

(4)   the period of disqualification was manifestly too low since it merged into the term of imprisonment and did not properly take into account the purpose of disqualification, which was to protect the public so that, in addition to the order made in requiring the respondent to take a fresh driving test after release from prison, the respondent should have been disqualified for a specified period longer than the term of imprisonment, particularly since he was a self-confessed habitual drinker.

43.The respondent argues that in view of the representations made by the judge that he would not impose a sentence for manslaughter greater than that which he would impose for dangerous driving causing death, in which representation it is said the prosecutor acquiesced, it is wrong in principle for the applicant to seek this review.

44.On the merits of the matter, the respondent asserts that it cannot reasonably be said that the sentence imposed is outwith the range of sentences which a judge applying his mind to all relevant factors could reasonably consider appropriate; the test adopted in this jurisdiction and referred to in Attorney-General’s Reference No. 4 of 1989 (1989) 11 Cr App R 517 at 521.  Mr King SC, for the respondent, says that the judge was aware of all relevant circumstances and that there was absent aggravating features such as animosity by a defendant towards the deceased, or prolonged negligence, or negligence occasioned in the course of committing another offence.  He furthermore contends that a higher sentence than that in fact imposed does not accord with the range of sentences imposed for motor manslaughter in this or other jurisdictions.  The respondent was a person of previous good character; his prior motoring offences of no particular consequence; he had shown, and the judge was correct in holding, that it was “unlikely that any effective distinction could be made for the purpose of sentencing” whether for manslaughter or for dangerous driving causing death.

Analysis

45.For the reasons which follow, we are satisfied that:

(1)   the judge erred in concluding that no difference in sentence was warranted in the circumstances of this case whether the plea was to the counts of manslaughter or the alternative lesser charges of driving dangerously causing death;

(2)   therefore, the representations made by the judge to the respondent that there would be no difference in sentence were inappropriate;

(3)   the sentences of imprisonment imposed upon the manslaughter counts were manifestly inadequate; but

(4)   in the light of the representations made by the judge, in which, by his conduct, the prosecutor impliedly acquiesced, and upon which representations the respondent relied in pleading guilty to manslaughter, it would be contrary to principle to allow the application for review of the terms of imprisonment.

46.When the court convened on 1 December 2009 shortly after 9.30 am discussion took place about a number of evidential matters after which there occurred the following exchange:

“Court:	There is going to be, you told me previously, a plea of guilty to each of the alternative counts. You want that plea to be before the jury – the jury to know about it.
Mr Chang:	I want the jury to know about it.
Court:	Okay. Well, what troubles me is this, and I know that it’s sometimes difficult for counsel to convey things to clients in this type of situation, so it may help if I just raise this with you. It seems to me that this is a matter where, I suppose in common with all matters, but perhaps particularly so here, your client wants as much mitigation as he possibly can get.
Mr Chang:	Yes.
Court:	The mitigation that is likely to be most beneficial to him here would be a plea of guilty. Now, Mr Arthur indicated last time that the basis of manslaughter is going to be gross negligence. That’s right?
Mr Arthur:	Correct.
Mr Arthur:	Correct.
Court:	That being so, it seems to me that the facts upon which the jury would rely for either the main counts of manslaughter or the alternatives are going to be essentially the same. The facts are going to be, and I see it is an Admitted Fact, that he was the driver of the vehicle; that these five people died as a result of the collision; and that at the time when the blood sample was taken from him, his blood alcohol level was more than three times the prescribed limit. Leave aside for the moment the issue of what the toxicologist says, because that’s a matter of – I mean, you might want to challenge that. But assuming he gives evidence and the jury were to accept his evidence, it puts him very close to four times the limit; 183 as opposed to 153.
Mr Chang:	Yes.
Court:	Now, if the facts upon which both the main and the alternative count don’t change to any significant extent, the only additional fact that the jury would -- finding that the jury would have to make in respect of the manslaughter counts would be the gross negligence, and that obviously is going to be a matter for them to decide upon, but I can’t see why, at the end of the day, there would end up as any difference in sentence. He faces five counts ...
Mr Chang:	Six.
Court:	Sorry?
Mr Chang:	Six counts.
Court:	What is the sixth one? There were five deaths, weren’t there?
Mr Chang:	12 counts.
Court:	Is it 12? All right. Well, maybe I just miscounted, that’s all. Where is the indictment?
Mr Chang:	One driver and five passengers.
Court:	Yes, that’s right. Sorry, I’d left out the driver. I’d left out the taxi driver. He faces six counts, and whether that is six counts of dangerous driving causing death or manslaughter, I have a difficulty that the net result is going to be any different in terms of sentence, because what has to happen at the end of the day is I have to reflect the overall criminality. I mean, theoretically, he faces six life sentences on the manslaughter, which is not going to happen; or he faces six five-year sentences on the dangerous driving. Well, that would be, you know, notionally, anyway, on paper, a total of 30 years. That’s obviously not going to happen either. But the end consideration is the appropriate overall sentence, and I can’t see any reason why, if the facts have not changed, the sentence should change. What concerns me is that he is well aware of the fact that if he were to be convicted after trial on the manslaughter charges, he would lose most, if not all, of the mitigation that is available to him for a plea of guilty. I may be open, and I’m giving – I haven't thought this one through, because it hasn’t become necessary – I may be open to some sort of persuasion that he ought to get -- on a conviction of manslaughter, he ought to get some sort of credit for his willingness to plead to the alternative, given the narrowness of the issue. But it certainly wouldn’t be anything like the usual discount that he would get, and I’m saying this because it’s being interpreted to him, and I know that it’s sometimes difficult for counsel to get these concepts across to a client. It sometimes helps when they hear it from the judge. I am concerned that he is fully aware of the fact that if he loses that discount, his sentence in fact ultimately is likely to be 50 per cent longer than otherwise.
Mr Chang:	Your Lordship is absolutely right, and this question has been bothering me and my client and his relatives all the time, and your Lordship’s remark is certainly very helpful.
Court:	All right.
Mr Chang:	And we will take that into consideration.
Court:	Right. It’s just at the end of the day, I’m the one who has got to pass the sentence, and I want to know – I always try to ensure that I know that an accused understands just what the position is; just what the odds are, because I’m the one who does the sentencing. All right. Let’s take a plea, then.
Mr Arthur:	Just before that, should I be renewing or making the application for a view of the locus?
Court:	Well, maybe we’d better arraign him first and then make the application.
Mr Arthur:	All right.”

47.The respondent was immediately thereafter arraigned and pleaded guilty to the offences contrary to s. 36(1) of the Road Traffic Ordinance, but not guilty to each of the counts alleging manslaughter.

48.After arraignment, counsel for the prosecution informed the judge that there was one matter he wished to raise “further to our earlier discussion,” which was that the maximum sentence for dangerous driving causing death was not five years’ imprisonment, as the judge had indicated, but 10 years’ imprisonment, the maximum which applied at the date of the offences in question.

49.At 10.14 am the court adjourned in order to wait for the arrival of a jury panel.

50.The court resumed at 10.53 am upon which resumption there was the following further exchange:

“Court:	Yes, Mr Chang.
Mr Chang:	May it please your Lordship, my Lord, I do wish to inform the court the defendant, upon considering my advice and other circumstances – all the circumstances – he decides to plead guilty to the six counts of manslaughter. That is his decision now.
Court:	All right.
Mr Chang:	And in the circumstances, we don’t think we need a jury, and I would be making an application for this to be adjourned for my learned friend to prepare a summary.
Court:	All right. Well, perhaps we should take a fresh plea now, and then we can work out to when you will need to adjourn.
Mr Chang:	Very well.
Court:	Are you happy with that, Mr Arthur?
Mr Arthur:	Yes, indeed.
Court:	Yes.
Clerk:	Accused, please stand up.”

51.Thereupon the respondent was re-arraigned in relation to the odd-numbered counts, each alleging manslaughter, and pleaded guilty to each.

52.Those are the circumstances in which the respondent came to be sentenced on the manslaughter counts.

The two categories of offence

53.In proceeding on the basis that there was no apparent reason for the “net result” to be “any different in terms of sentence”, whether the conviction was for dangerous driving causing death or motor manslaughter, the judge was, in our respectful judgment, in error.

54.The two offences, dangerous driving causing death and manslaughter, co-exist.  It is sometimes assumed that the offence of dangerous driving causing death is merely another label for motor manslaughter.  That is not a correct assumption.  Some cases of dangerous driving causing death will reveal conduct which will amount to gross negligence manslaughter.  Others not.  It is not intended by the legislature that all cases of motor manslaughter be charged as death by dangerous driving. Conversely, not all cases of dangerous driving causing death will, in the gravity of the negligence causing death, amount to manslaughter and it is no doubt intended to reserve manslaughter charges for cases of such gross negligence as to give rise to a high risk of death and as call for a sentence greater than that available for dangerous driving causing death.  It is not therefore merely a question of a label.  Motor manslaughter is a more serious offence than dangerous driving causing death.  So much is clear from the fact alone that the maximum sentence for manslaughter is life imprisonment whereas the maximum sentence for dangerous driving causing death is 10 years’ imprisonment.  Indeed, until recent years the maximum for the latter was only five years’ imprisonment.  So it is safe to conclude that it was not intended to “shelve” manslaughter as an available charge when a death was caused by dangerous driving but, rather, that it was intended to reserve manslaughter charges for particularly serious cases.  That is not to say that the sentence for a motor manslaughter conviction will inevitably be higher than had the charge been dangerous driving causing death: that, ultimately is a matter for the sentencing court according to the facts of the case.

55.These propositions are supported not merely by the disparity in maximum sentence but by authority: see, for example, R v Cooksley [2003] 3 All E R 40 at para 10 where their Lordships expressed the view that they did not see “the … need to increase the maximum of ten years’ imprisonment for death by dangerous driving, particularly as the offence of motor manslaughter remains.”  In R v Seymour [1983] 2 AC 493, where the comparison was with causing death by reckless driving, Lord Fraser commented, at p. 500, that insofar as it was said that “they are not two offences but only one offence with two names,” he did not accept that argument since although the two ingredients of those two offences – and for present purposes one must emphasise that the statutory offence was one of reckless driving causing death, recklessness being an ingredient of gross negligence manslaughter – “the degree of recklessness required for conviction of the statutory offence is less than that required for conviction of the common law crime.”  Lord Roskill said, at p. 506, that the difference in the sentencing maximum recognised “that there are degrees of turpitude which will vary according to the gravity of the risk created by the manner of the defendant’s driving.”  In Australia too, it has been recognised that manslaughter is “a much more serious offence than aggravated dangerous driving occasioning death where the lesser offence carries a maximum penalty of 14 years’ imprisonment and manslaughter 25 years”: R v Cramp (1999) 110 A Crim R 198 at para [108].

56.The dividing line, in other words the difference between the two offences, is not easy precisely to define, but may be said to be a question of the degree to which the driver has consciously relinquished responsibility, the knowing or indifferent risk attendant upon that abandonment of responsibility and the consequences of that conduct; a dividing line which may broadly be gleaned from a consideration of what is required to prove each.

57.Section 36(4) of the Road Traffic Ordinance provides that:

“(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

58.As for manslaughter, it has been said that: “… of all crimes, manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions” (Andrews v Director of Public Prosecutions [1937] AC 576 at p 581) but what is required in the context of motor manslaughter is proof of breach of the duty of care towards the victim who has died, that that breach caused the death of the victim, and, importantly for present purposes, that “having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount” in the judgment of the jury “to a criminal act or omission.”: see R v Adamako [1995] 1 AC 171 at 187.  The defendant’s conduct “has to be such that it creates a very high degree of risk [of death] before it is to be classed as manslaughter”: see Brown v The Queen (PC) [2006] 1 AC 1 at 16, para 24.  The distinction is one which “recognises that there are degrees of turpitude which will vary according to the gravity of the risk created by the manner of a defendant’s driving”: R v Seymour [1983] 2 AC 493 at 506.  In the case of conscious risk-taking, of which the instant case is a clear example, it will be appropriate to use the word “reckless” in its ordinary meaning as part of the test and, in that regard, what has to be proved, in the case of motor manslaughter, is an obvious risk of death from the defendant’s conduct, objectively assessed, and an indifference to that risk on the part of the defendant, or foresight thereof plus a determination nevertheless to run it: this is an adaptation of the test suggested by R v Lidar [2000] 4 Archbold News 3, referred to in Archbold UK 2011 at para 19-110.

59.It is for the prosecutor in any particular case where criminal proceedings are to be launched arising from death occasioned by bad driving to determine whether in his judgment the conduct of an accused which caused death was of such turpitude or so egregious as to warrant a prosecution for manslaughter rather than one for dangerous driving causing death.  “… it is for the prosecution and not for the court to decide what charge or charges should be made against a particular defendant.  The prosecution is entitled to consider all the circumstances of the case before so deciding”: Seymour, above at p. 507H.  The question is one of degree and one has to suppose that in this particular case the charge of manslaughter was laid because it was thought that the conduct in question was particularly grave conduct such as would lead a jury to conclude that it showed such disregard for the lives and safety of others as to amount to a crime. That is why, no doubt, the prosecution refused to accept the pleas of guilty to the lesser charges of dangerous driving causing death and insisted upon a jury determination of the manslaughter counts.

60.It is in those circumstances unfortunate that when the judge indicated that he proposed, even on the manslaughter counts, to sentence no more severely than on the lesser charges, the prosecutor seemingly acquiesced, making no move to dissuade the judge from the appropriateness of the proposed approach to sentencing and no attempt to explain to the judge the basis upon which the prosecuting authority, in laying the indictment, chose to charge manslaughter and chose not to accept a plea to the lesser charges.  The judge did not, as far as we see from the transcript, ask the prosecutor why he insisted on proceeding upon the manslaughter counts.  Particularly given the power of the Secretary for Justice to seek a review of unduly lenient sentences, it is, we suggest, incumbent upon a prosecutor to draw to the sentencing judge’s attention any departure from any appropriate sentencing principle or basis which he perceives to be revealed by such comments or observations as are made by that judge.  See Attorney-General’s Reference No. 7 of 1997 [1998] 1 Cr App R (S) 268.  To do so does not turn a prosecutor into a persecutor; he does not thereby press for a particular sentence, but fulfils his duty as an agent of justice to ensure that the sentencing judge is properly apprised of all relevant principles and circumstances.

61.It is possible – though, for reasons to which we refer below at paras 65-66, we think it unlikely - that the judge was influenced in his approach by the fact that few, if any, previous prosecutions in relation to death caused by seriously culpable driving in this jurisdiction have resulted in manslaughter prosecutions.  In this regard, this Court, differently constituted, in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 expressed the view at p. 670 that, in that case, “the utter disregard for the lives and safety of others may well have attracted manslaughter charges.”

62.In relation to sentencing:

“The Court of Appeal has emphasised that real assistance from previous decisions is often unavailable because no two cases are the same. … .The sentencing judge must bear in mind that the defendant not intend to cause serious injury to, or kill, anyone else, which would constitute murder, and that the offence is more serious than causing death by dangerous driving. The risk of death is higher, so the offence will generally merit a proportionately greater sentence than for the statutory offence. … Aggravating features include hostility or aggressive action taken towards another and the consumption of alcohol or drugs. Other relevant factors include the number of deaths, whether the gross negligence was prolonged or shortlived and whether it took place in the context of some other offence, e.g. seeking to steal the vehicle.” See Blackstone’s Criminal Practice 2011 para C3.6.

63.It seems to us obvious that in this particular case the respondent took a deliberate risk or, at least, was entirely indifferent to the risk occasioned by his condition and the conduct upon which he embarked.  At the material time, he chose to drive when he had hardly any sleep and he chose to drive when he was significantly the worse for drink, so much before driving that when he was seen by the police very shortly after the accident, he was bleary-eyed and slurred in speech.  Neither condition – the lack of sleep and the drunkenness – was outwith his control.  To the contrary, this mature middle-aged man, knowing that he was to drive the next morning, chose, instead of sleeping, to stay awake; chose, instead of staying sober, to spend the night drinking; and, finally, chose in that condition to drive a heavy vehicle.  It is difficult in those circumstances to conclude other than if by reason of that conduct he occasioned the death of another, he was guilty of manslaughter and it is difficult to see upon what basis it was hoped that he could avoid a conviction for manslaughter.

64.It is, in the circumstances, unfortunate that the prosecutor at trial made no attempt to draw these distinctions to the attention of the trial judge; all the more so when initially the trial judge indicated that he thought the maximum term for dangerous driving causing death to be five years’ imprisonment; his suggestion thereby, on one view, being that the respondent’s conduct, even upon a manslaughter conviction, merited no more than five years’ imprisonment before taking into account the plea of guilty.

65.In the course of oral argument, Mr Zervos put forward the proposition that by his comments to the respondent through counsel, the judge was not intimating that he intended to take one overall starting point at or below ten years’ imprisonment (the maximum for dangerous driving causing death) but expressly intimated that he had in mind consecutive or partially consecutive sentences for the counts of dangerous driving causing death so that, upon that approach, the overall sentence would be no different from the overall sentence for the six charges of motor manslaughter.

66.It may be that this is precisely what the judge was intimating.  There is support for this suggestion in the passages which we have reproduced in which the judge said that “theoretically [the respondent] faces six five-year sentences on the dangerous driving.  That would be … notionally, anyway, on paper, a total of 30 years.  That’s obviously not going to happen… .”  There is further support for the proposition in the fact that it is, we think, inconceivable that at a stage when the judge had incorrectly assumed that the maximum sentence available for one offence of dangerous driving causing death was, at the time of the offences, five years’ imprisonment, the judge had in mind an overall sentence of five years or less.

67.But if that is what the judge was intimating – consecutive or partially consecutive sentences – then, with respect, he erred and prosecuting counsel should have been alert to the error.  The error lies in the fact that where a number of offences of dangerous driving causing death are charged but all arise out of a single incident, consecutive sentences are inappropriate: se R v Peter Noble [2003] 1 Cr App R (S) 312 and R v Jack Richardson and others [2007] 2 Cr App R (S) 211 at 218.

68.Mr King, who did not appear in the court below, suggests that upon a fair reading of the passages in the transcript, the impression is given that the overall sentence to be imposed would be one that assumed a deduction for the plea of guilty from a ceiling – an overall ceiling – of ten years.  We have no evidence from the respondent or from his trial counsel as to what advice was given to the respondent but insofar as the matter is unclear, we are bound to proceed upon the assumption that defence counsel understood the judge’s comments in the same vein as this Court understood them upon a first reading , namely, that the respondent was going to be no worse off if he pleaded guilty to motor manslaughter; no worse off in the sense that his total sentence would be one which accorded a one-third discount from something at or below the maximum sentence for one single incident of dangerous driving.  That assumption must all the more be appropriate when one sees that that is precisely the basis upon which the judge in the event proceeded, in that the sentences in fact imposed were all concurrent terms of six years’ imprisonment, which marries approximately with the sentence to be arrived at if one assumes a starting point slightly below 10 years’ imprisonment and one-third discount for a plea of guilty.

The principled consequence

69.There is clear authority for the proposition that if the prosecuting authority makes representations to a defendant upon which he is entitled to rely and upon which he has acted to his detriment by, for example, pleading guilty in circumstances in which he would not otherwise have pleaded guilty, there arises a legitimate expectation on his part that the prosecuting authority will not seek to resile from those representations in an application for a review of sentence: see Attorney- General’s Reference No. 44 of 2000 (Robin Peverett) [2001] 1 Cr App R 416.  In the earlier decision of Attorney-General’s Reference Nos. 80 and 81 of 1999 (Thompson and Rodgers) [2000] 2 Cr App R (S) 138, it was the judge who was proactive in the representations and gave a sentencing indication not challenged by the prosecution; indeed the prosecuting authority accepted the pleas to lesser charges thereby clearly acquiescing in the course proposed.

70.The only distinction that might be made is that the prosecuting authority in the present case remained silent.  But that seems to us to matter not, for it was incumbent upon the prosecutor to make the position of the prosecuting authority plain, namely, that it perceived a material difference in culpability between the two sets of charges.  The relatively extensive comments made by the judge by which he made it clear that he saw no difference in sentencing terms between the two sets of offences and by which he warned the respondent of the risk of losing the benefit of pleas of guilty, were clearly decisive in persuading the respondent to plead guilty to manslaughter.  The prosecutor expressly told the court that he was content with the course proposed by the respondent and expressed no concern that the pleas were offered on a basis that was, as a matter of sentencing principle, inappropriate.

71.In the circumstances, a review of sentence sits ill with established principle and for this reason, and this reason alone, the application in relation to the sentence of imprisonment must fail.

The sentence itself

72.But for the unusual procedural history which we have described, we would have allowed the application as to the term of imprisonment for it is our judgment that the sentences imposed were manifestly inadequate and outwith the scope of sentences reasonably available to the sentencing judge.

73.We consider that upon the pleas of guilty, the appropriate resulting sentence for the manslaughter charges should have been in the region of nine years’ imprisonment.  The applicant has placed before us a series of cases from England as well as from Australia and whilst there is limited assistance to be gleaned for sentencing purposes from other cases in this category of offence, the sentence which we have indicated accords with the level of sentence - some higher, some lower than this - for motor manslaughter in which the defendant’s gross negligence has been the result of, or significantly caused by, excessive alcohol or drug consumption.  In some cases, unlike this, the defendants had poor records of driving offences; in some there was speeding; in some there was racing; and in all there were fewer deaths.  The facts will differ from case to case.  In this particular case, as we have emphasised, the applicant chose to drink to considerable excess knowing that he was to drive; chose not to sleep when he knew he was going to drive; and whilst thus affected, he drove a particularly heavy vehicle rendering any potential damage, as he must or ought to have appreciated, caused by any accident, to be significantly worse, as the judge pointed out, than would be occasioned by a lighter vehicle.  As result of this grossly negligent conduct, six people died.

74.We accept the fact of remorse and do not brush it entirely to one side.  It is an unattractive feature, though, of the respondent’s conduct that after the incident itself, he told three different stories to the police, each one laying blame on someone else, each story untrue; but we do not doubt that when he emerged from his drunken stupor and the shock of what had happened, he became and remains remorseful.  That said, there is a particular recklessness in the facts of this case on the part of a mature man whose habit it was to drink and yet whose job it was to drive, and the fact that his gross negligence resulted in the death of no fewer than six people constitutes a serious aggravating feature and, further, there must in a case of this kind be a high deterrent element in the sentence.

Disqualification

75.In relation to disqualification, we are of the opinion that save to the extent of requiring a fresh driving test the judge erred in restricting the term of disqualification as he did.  The judge correctly acknowledged that “a vital factor in the discretionary disqualification is the necessity to protect members of the public,” but that in the respondent’s case he did not foresee any real prospect of re-offending.  However, “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,” he ordered the respondent to be disqualified from holding or obtaining a license to drive all classes of vehicles until such time as he passed a test of competence.

76.The unease we have lies in the suggestion that there was no real prospect of re-offending.  In that that was a suggestion that such was the respondent’s remorse that he was unlikely again to re-offend, we understand the sentiment.  But the respondent has at all material times been a habitual drinker.  That, by his mid-40s, was his way of life and, that being so, we consider that the risk of re-offending is not nearly as low as the judge pitched it.

77.We accept that where a defendant depends upon driving for his livelihood, that is a factor to be taken into account in determining the appropriate period of disqualification.  There will be cases where too long a period of disqualification may be counterproductive, for example “because it may tempt the offender to drive while disqualified”: see Cooksley at para 42.  But the prime consideration when ordering disqualification is the safety of the public and it is in that context that a court must ask itself for how long an offender should be kept off the road.  In our judgment in the case of this offender who is a habitual drinker and who, as his conduct on the night in question shows, is wont to drink the night through – it was never contended that this was some aberration on his part – the court ought to ensure a prolonged period off the road.  In our judgment he ought to be off the road for no less than eight years and that is the term of disqualification, in respect of all classes of vehicle, which we shall substitute for the order made by the judge in addition to the requirement that he not drive until he has passed a prescribed test of competence.

78.To this extent alone the application is allowed.

Disclosure

79.It is unfortunate that upon the application for leave, the circumstances in which the respondent came to change his plea after the court’s indication as to sentence was not drawn to the attention of the Chief Judge.

80.Section 81A (2) and (2A) require that amongst the documents filed with the application shall, in the case of a sentence passed by a judge of the High Court, be “the record of the whole of the proceedings before that judge”.  We have been told that the applicant requested the transcript but that it was not received and we are satisfied that the failure to lodge the transcript was an oversight.  Nonetheless an unsuccessful request for the provision of a transcript does not absolve an applicant under s. 81A from ensuring compliance with the statutory requirements or from drawing material factors specifically to the attention of the judge to whom the application for leave is made.

81.The point has been made in a letter sent to the Court by the applicant after the hearing of this application, that the specification by s. 81A of the documents required to be filed relates to the substantive application and not the leave application.  Whether or not that is so is not the point we presently make.  An application for leave to the Court of Appeal under s. 81A is an application made ex parte and, whatever the formal requirements, there is an obligation to place before the court at the leave stage all such matters as are material to the question of leave, and it seems to us to be self-evident that the unusual circumstances in which the respondent came to plead guilty to manslaughter and the intimations of the judge as to sentence, were material circumstances and should have been disclosed.  Our decision not to allow the application, as far as it concerns the sentences of imprisonment, does not, as it happens, turn upon this non-disclosure.  Our decision is the result of an application of the principles which we have discussed, namely, whether a review should be permitted after representations of the kind made at the hearing below and relied upon by a defendant.

Result

82.In the result, the application is allowed to the extent only that in addition to the order of the court below that the respondent be disqualified until he has passed a prescribed test of competence, we order that he be disqualified for eight years from driving any class of vehicle.

Mr Kevin P Zervos SC, DDPP and Ms Irene Fan, SPP of Department of Justice, for the Applicant

Mr Alexander King, SC and Mr Geoffrey P Chang, instructed by Messrs Patrick Mak & Tse, assigned by Director of Legal Aid, for the Respondent