Hon Yeung JA:
上訴法庭法官楊振權：

Background
背景

On 16 February 2008, the appellant Cheng Ho Chow attended a Spring Festival banquet held by his company in a restaurant at Lei Yue Mun.  The banquet finished at about 10.30 pm.  Then, the appellant picked up his light goods vehicle at an open carpark nearby and drove away with a colleague Miss Kan Yuet Ming on board.
2008年2月16日，上訴人鄭河周參加公司在鯉魚門一酒樓舉行的春茗。晚宴約在10時半結束後上訴人在附近的露天停車場取回他的小型貨車，並接載一名同事簡月明小姐離開。

When the light goods vehicle driven by the appellant was moving along the westbound carriageway of Cha Kwo Ling Road towards Laguna City, it suddenly rammed into a medium goods vehicle parked on the first lane.  The westbound carriageway of Cha Kwo Ling Road at that area slightly curved to the right and there were two traffic lanes on the road surface.  The result of the accident was that Miss Kan died from serious injuries and the appellant himself was severely injured.
當上訴人駕駛的小型貨車沿茶果嶺道西行線向麗港城方向前進時，突然撞向一輛停泊在第一線的中型貨車。該段茶果嶺道西行線輕微右彎，路面有兩條行車線。意外導致簡小姐傷重死亡，而上訴人亦身受重傷。

The accident was obviously caused by the appellant’s drink driving.  Police investigation revealed that the appellant did not brake at all prior to the impact.  This showed that before the collision, the appellant failed to notice there was a vehicle parked on the roadside.
意外明顯是因上訴人醉酒駕駛引發。警方調查證明兩車相撞前，上訴人完全沒有剎車, 顯示在撞車前，上訴人不意會有車停泊在路邊。

People who sat with the appellant at the same table during the banquet said that the appellant had consumed considerable amount of whisky and red wine in the course of the banquet.  A security guard of the open carpark at Lei Yue Mun described that when the appellant picked up his light goods vehicle at about 10.30 on the night of the accident, his face was red all over and that he walked unsteadily.
晚宴時和上訴人同桌的人士表示，在晚宴期間，上訴人飲用過份量不少的威士忌和紅酒。鯉魚門露天停車場的保安員亦表示上訴人在事發晚上約10時30分取回其小型貨車時，滿面通紅，步履不穩。

The above accident led to the prosecution against the appellant for one count of dangerous driving causing death.  He pleaded not guilty and was tried before Deputy District Judge W. C. Li.
上述事件導致上訴人被控一項危險駕駛引致他人死亡罪。上訴人否認控罪，案件在區域法院暫委法官李唯治審理。

On 24 February 2009, Deputy Judge Li convicted the appellant and on 6 March 2009 he sentenced the appellant to 2 year’s imprisonment and disqualified him from driving and from holding a driving licence for 4 years.  Deputy Judge Li used 3 years as the starting point and then reduced the term by 1 year to 2 years on account of the appellant’s serious injuries and the various kinds of inconveniences he suffered as a result of the injuries.
2009年2月24日，李法官裁定上訴人罪名成立，並在2009年3月6日判上訴人入獄兩年，及停牌4年。李法官以3年為量刑基準，並因上訴人的嚴重傷勢和傷勢引發之各種不便，將刑期扣減1年至2年。

On 31 March 2009, the appellant applied for leave to appeal against sentence.  Leave was granted on 25 June 2009.  In the meantime, the appellant was allowed bail pending appeal on 7 May 2009.
上訴人不服判刑，在2009年3月31日提出上訴許可申請，該申請在2009年6月25日獲准。其間，上訴人在2009年5月7日獲准保釋等候上訴。

Ground of appeal
上訴理由

The appellant relied solely on humanitarian grounds to plead for reduction of his sentence.  He said that the accident resulted in paralysis of his whole body and loss of the ability to take care of himself.  He said that he was not able to change clothes or take a bath by his own effort, and that he was not even able to urinate or defecate without assistance.  He also complained that his body was wasting away.  He pleaded for suspended sentence so that he could have the opportunity to, with the assistance of his family members, receive sufficient physiotherapy to prevent further deterioration of his physical condition.
上訴人單是以人道理由要求輕判。上訴人指出意外導致自己全身麻痺，喪失了自我照顧能力。上訴人表示自己不能寬衣，不能洗澡，大小二便都需要人協助。上訴人更表示其身體有萎縮情況出現。他希望能獲緩刑，令他有機會在家人協助下接受足夠物理治療，以免身體機能每況逾下。

The appellant stressed that when he was in jail, although he received assistance from other prisoners, some of them were not altogether happy to help him to deal with things that might cause disgust, and for this reason some intentionally or unintentionally did harm to him.  The appellant emphasized that when he was serving his sentence in prison, his physical condition worsened significantly and the physiotherapy provided to him was not adequate.  The hardship he suffered was thus exacerbated.
上訴人強調在身陷囹圄期間，雖然有其他囚犯給予他協助，但部份囚犯並非十分樂意協助他處理一些厭惡性的工作，更因此有意無意對他做成無謂傷害。上訴人強調在監獄服刑期間，身體狀況明顯變壞而所獲之物理治療亦不足夠，加深他面對的困苦。

The undisputed medical reports show that the appellant’s spine was injured in the accident. Consequently he is suffering from tetraplegia and requires special treatment for spinal injuries.
無爭議的醫療報告顯示意外令上訴人脊椎骨受創，導致他四肢麻痺而需要特殊的脊椎創傷治療。

In the report dated 3 March 2009, Doctor Ho, who has all along been responsible for treating the appellant, stated that the appellant’s upper limb power was impaired because of the accident, that he could manage to hold a spoon only with difficulty, and that he needed to be helped in order to eat.
在日期為2009年3月3日的報告，一直負責治療上訴人的何醫生指出意外令上訴人上肢力量變弱，只能勉強握緊匙，故需要他人協助才能進食。

Doctor Ho specially pointed out that owing to the constraints of the Correctional Services Department in the training and treatment of people suffering from tetraplegia, imprisonment would cause the function of the appellant’s four limbs to deteriorate further. Therefore, his chance of returning to a normal life would decrease.  Doctor Ho was of the view that what the appellant needed was continuous physiotherapy at regular intervals carried out by physiotherapists and his family members.  Without such treatment, his self-care ability in future would be substantially impaired.
何醫生特別指出懲教署對四肢麻人士的訓練和治療有限制，故監禁會令上訴人四肢活動能力進一步惡化，而其能較正常生活的機會更會減低。何醫生認為上訴人需要由物理治療師及家人經常施以定期物理治療，否則他將來的自理能力會受很大的影響。

At the request of the court, the Correctional Services Department made a further report on the rehabilitation progress of the appellant and the support provided by the Correctional Services Department to him.  The report said that when the appellant was in custody, he had been provided with sufficient care and treatment, and that his progress was satisfactory.  According to the report, when the appellant was serving his sentence, he was able to stand and could walk slowly when being helped.  Although the recovery of the appellant’s upper limbs was fair, he could feed himself by using a mobile arm support.
應法庭的要求，懲教署就上訴人的康復進度及懲教署提供給他的支援再作報告。報告指上訴人在囚期間獲得足夠的照顧及康復治療而其進展情況亦是理想的。報告顯示上訴人在服刑期間，能站立及在人扶持下慢行。雖然上訴人的上肢康服情況普通，但他能在活動手臂輔助下自己進食。

Respondent’s position
答辯人立場

Senior Public Prosecutor Ms. Teresa Kam, for the respondent, argued that aggravating factors existed in this case in that the appellant had consumed considerable amount of alcoholic drinks over a long period of time before he drove off.  She placed emphasis on the fact that before the collision the appellant had probably closed his eyes or even had fallen asleep.  She emphasized that the physical condition and mental condition of the appellant were such that he was not suitable to drive, but he still proceeded to drive regardless, thus causing the accident.
代表答辯人的高級檢控官金玉女士指本案具備加刑因素，原因是上訴人駕駛前，長時間飲用了份量不少的酒精飲品。她強調，撞車前上訴人應是閉了眼睛，甚至睡着了。她亦強調上訴人的身體及精神狀況都顯示他不適宜駕車，但他仍強行駕駛，導致意外。

Ms. Kam submitted that a defendant who suffered injuries in the course of committing crime had only himself to blame.  However, she agreed that according to R v. Mallone [1996] Cr App R(S) 221, the fact that the defendant was himself severely injured in the traffic accident could be a mitigating factor. But she stressed that the trial judge had already substantially reduced a 3 years’ term of imprisonment to 2 years on account of the fact that the appellant was severely injured.
金女士指若被告人因犯罪引致身體受傷害，屬咎由自取，但亦同意根據R v Mallone [1996] Cr App R(S) 221案，如被告人在車禍中有受重傷，可以是減刑因素。金女士強調原審法官已因上訴人受重傷而將三年的判刑大幅度減到二年。

Ms. Kam submitted that if the appellant had to continue to serve his sentence, he would most likely stay in Stanley Prison, where he could receive professional medical treatment and follow-up care and attention provided by the prison hospital; and that if necessary, arrangements could be made for him to go out to receive treatment at other hospitals or rehabilitation centres.  Ms. Kam further submitted that treatment could be provided as frequently as once a day and that rehabilitation equipment, if it was practicable to do so, could be sent to the prison hospital to be used by the appellant.
金女士指如上訴人仍需服刑，他很大可能會繼續在赤柱監獄服刑，而赤柱監獄中除了有監獄醫院為他提供專業的醫學治療及跟進外，在有需要時，亦會安排他外出到其他醫院或復康中心進行治療。金女士更指有關治療可以頻密到每天一次，而復康器械在可行的情況下可以運送到監獄醫院，供上訴人使用。

Discussion
討論

The sentencing of this appellant has given me much worries and concerns. Drink driving is a very serious crime.  The reason is that a vehicle moving in high speed can be a lethal weapon with horrific power of destruction.  When a vehicle is in the hands of a driver who is under the influence of alcohol and cannot properly control the vehicle, severe damage to life and property can be the result and therefore it is a danger to the public.  Generally, the sentence for dangerous driving should be immediate custodial sentence in order to be a deterrent (see Secretary for Justice v Fong Chai Man [2008] 3 HKLRD 493), although in that case the Court of Appeal declined to increase the starting point of 1 year because the incident arose from a mere error of judgment.
處理上訴人的判刑，對本席造成極大的憂慮及困擾。醉酒駕駛屬極為嚴重罪行，原因是高速行駛車輛可以是極具殺傷力的兇器。當車輛在一名醉酒故不能適當控制車輛的駕駛者手上時，可能會導致極大的財物及生命損害，對公眾安全造成危險。危險駕駛罪行一般需處以即時監禁，以作阻嚇作用（見律政司司長 訴 房濟民 [2008] 3 HKLRD 493案），雖然在該案，上訴法庭以意外純粹出於一個錯誤的判斷而拒絕將一年之量刑基準上調。

In Secretary for Justice v Poon Wing Kay and Liu Chun Pong (CAAR 2/2006 and CACC 536/2005), Ma CJHC made it clear that in a particularly serious case of drink driving causing death, the maximum sentence laid down in the law at that time, namely 5 years’ imprisonment, ought to be imposed.
律政司司長 訴 潘永基及廖振邦案（CAAR 2/2006 及CACC 536/2005），高等法院首席法官馬道立表明，在特別嚴重的醉酒駕駛引致他人死亡的案件，法庭應處以當時法例所容許的最高5年判刑。

Soon after the occurrence of this case, the Legislation Council of Hong Kong, because of the prevalence of drink driving and its potential serious consequences, increased the maximum sentence of drink driving causing death from 5 years’ imprisonment to 10 years’ imprisonment, so as to reflect the abhorrence felt by the public of this crime.
香港立法議會在本案案發後不久，更因醉酒駕駛普遍及其能導致的嚴重後果，將醉酒駕駛以致他人死亡罪行的最高判刑由5年增加至10年，以反映社會各界對該罪行的厭惡。

Although this case is not the worst of its kind, there are aggravating factors.  At the time of the offence, the appellant must have been completely drunk, otherwise when he was driving he would not have closed his eyes or even have fallen asleep.  The appellant, knowing that his driving ability and skill would be substantially and adversely affected by his physical condition, still chose to drive.  This court will certainly not overlook the fact that the victim lost her precious life as a result of the appellant’s irresponsible conduct.
本案雖然不屬同類案件最嚴重的一類，但亦有其加重罪責的因素。上訴人案發時，必然是酩酊大醉，否則他不會在駕駛途中閉上眼睛，甚至入睡。上訴人是明知其身體狀況會大大影響其駕駛能力及技術的情況下，仍然選擇駕駛。當然本庭不能忽視上訴人的不負責任行為導致有人喪失了寶貴的生命。

On the other hand, the appellant was severely injured in the same accident and he needs to be taken care of in his daily life. This court has no doubt at all that the Correctional Services Department will make suitable arrangements regarding what the appellant needs.  However, this court must not fail to notice that the appellant’s injuries were not only severe, they also deprived him of the ability to look after himself.  Owing to tetraplegia, in particular the loss of strength in his upper limbs, the appellant cannot change clothes or take a bath by his own effort.  He is not even able to urinate or defecate without assistance.  Under these circumstances, incarceration will cause him immense and extraordinary hardship.
另一方面，上訴人在同一意外中亦身受重傷，需要他人照顧起居飲食。本庭絕不懷疑懲教署會就上訴人所需的醫療作出合適安排。但本庭不能忽視上訴人的傷勢不但嚴重，更導致他無力自理。由於四肢麻痺，特別是上肢無力，上訴人自己不能更換衣服，不能洗澡，而大小便亦要他人協助。在上述情況下，牢獄生活會對上訴人造成極大而不尋常的困苦。

Even though the Correctional Services Department will make every endeavour to help individual prisoners to adapt to life in prison, the Department might not be able to provide tetraplegic prisoners, like the appellant, with all the facilities and support they need.  To the appellant, every daily routine activity is a big challenge and struggle.  The lavatory facilities of the Correctional Services Department are not designed to cater for the needs of people, like the appellant, who have this kind of disability.  Just getting into bed and getting out of bed have already posed great difficulties for the appellant, and for this reason he could not go to toilet in the middle of the night and had to wet the bed. The appellant cannot wash or dress himself, have his meals, or go to stool without assistance provided by other people.  The Correctional Services Department will surely do all they can to take care of the appellant, including giving instructions to other prisoners to take care of him.  But to provide care to such kind of prisoners like the appellant may be a strain on the resources of the Correctional Services Department, and the services provided by them may not necessarily meet the appellant’s needs.  As far as other prisoners are concerned, to take care of the appellant is unpleasant work, which they will not be happy to accept.  When they are forced to do this work, they may harass the appellant, which is not something difficult to understand.  The hardship and indignity which imprisonment will give to the appellant will be far greater than those given to the prisoners who are physically healthy and normal.
即使會為個別囚犯盡一切努力以協助他們適應監獄生活，懲教署不一定能向上訴人這類四肢麻痺的犯人提供所需之全部設備和援助。每日的例行公事，對上訴人而言已是極大的挑戰和搏鬥。懲教署的衛生間設施並非為上訴人這類傷殘人士而設。對上訴人而言，上牀、下牀已是極為困難之事，導致他半夜不能去廁所而引致尿牀。上訴人必需他人協助才能梳洗、進食及排便。雖然懲教署必會盡力照顧上訴人包括指示其他囚犯照顧上訴人。但照顧上訴人這類犯人可能對懲教署做成壓力而懲教署能提供的服務亦不一定能應付上訴人所需。對其他囚犯而言，服侍上訴人屬厭惡性工作，他們不會樂意接受。當他們被迫承擔該項工作時，他們對上訴人可能造成困擾亦是不難理解的。上訴人坐牢面對的困苦及喪失尊嚴遠較其他身體健康正常的囚犯為甚。

Nor can I disregard the possibility that if the Correctional Services Department is not able to provide full-scale training and treatment to people suffering from tetraplegia, imprisonment would cause the tetraplegic condition of the appellant to worsen further, so that the chance of his living a normal life again would be much reduced.
本席亦不能忽視如懲教署不能對四肢麻痺的人士作出全面的訓練和治療，監禁會令上訴人四肢麻痺情況進一步惡化而其重過正常生活的機會亦會因此而大大降低。

A doctor opined that the appellant needed continuous physiotherapy at regular intervals carried out by physiotherapists and his family members.  If the appellant wants to have continuous physiotherapy provided by physiotherapists at regular intervals whilst he is in prison, that would be unrealistic.  I agree with the doctor’s opinion that a more effective arrangement is to let the appellant’s family members take part in providing suitable treatment to the appellant.
有醫生認為上訴人需要由物理治療師及家人經常施以定期物理治療而上訴人要在監獄獲得物理治療師經常及定期性的物理治療是不切實際的。本席亦認同醫生的意見，較有效的安排應是由家人參與向上訴人提供適當治療。

I have the duty to protect the interests of the public and to ensure that the public will not be harmed by drink driving and dangerous driving committed by irresponsible drivers, but I am also required to consider the impact and effect a punishment will produce on individuals.  By individuals, I am not referring to the appellant only, but include his family members, especially his wife.  During the appeal hearing, the appellant’s wife appeared in court with the appellant.  The love and care which she showed towards the appellant have left an indelible impression on me. To put the appellant back to jail, whatever the length of the term, will put the appellant into extreme hardship and will cause his family, especially his wife, constant distress.
本席有責任維護公眾利益，確保市民大眾免受不負責任駕駛者的醉酒及危險駕駛等罪行的傷害。但本席亦需要將刑罰對個別人士的衝擊及影響考慮在內。本席所指的個別人士不單是指上訴人本人，亦包括其家人，特別是其妻子。上訴聆訊期間，上訴人妻子陪伴上訴人出席。她對上訴人表現的關愛，令人印象難忘。再關押上訴人，不論關押期的長短，都會對上訴人做成極度困苦，亦會令其家人，特別是他的妻子終日惶恐不安。

I have asked myself many times the following questions:  In the circumstances of this case, if the appellant is treated leniently, would it arouse a public outcry, saying that the court is indulgent towards drink driving and dangerous driving; would the efforts spent by the government on preventing the commission of drink driving and dangerous driving be compromised; and would people be emboldened to commit drink driving and dangerous driving?  The answers I arrived at are all negative.  On the contrary, my view is that to treat the appellant leniently will make the public aware that there is a benevolent side of the law, so that they will respect the law more and be more willing to obey the law.
本席曾多番自問，在本案的背景下，對上訴人法外施恩，會否導致公眾強烈不滿，指法庭縱容醉酒及危險駕駛罪行；會否影響政府為了阻嚇醉酒及危險駕駛所作的努力；及會否鼓勵醉酒及危險駕駛罪行。本席得出的答案都是否定的。反之，本席認為對上訴人法外施恩，會令公眾感受到法律有其仁慈一面，令公眾更尊重法律，倍加守法。

After considering all the circumstances, I believe that the appellant has been taught an extremely severe lesson.  He will not commit this crime again.  In addition, he had been imprisoned for several months and therefore knew how hard life can be in prison.  To him, this kind of punishment cannot be said to be light.  I decide to be lenient to him by giving him a suspended sentence.
經考慮過整體情況，本席認為上訴人已得到極嚴厲的教訓。上訴人不會重犯，加上他已坐牢數月，令他知悉牢獄生涯的苦況。對他而言，刑罸亦屬不輕。本席決定法外施恩，作出緩刑的決定。

I must say clearly that the decision to give the appellant suspended sentence is made because of the very special circumstances of this case and should not be treated as a precedent.
本席必需表明，緩刑的決定是在本案極為特殊情況下作出，不應視為先例。

I allow the appeal.  The sentence of 2 year’s imprisonment stands but shall be suspended for 2 years.  The appellant does not have to serve the sentence immediately.
本席裁定上訴人上訴得直。其兩年判刑維持，但緩刑兩年，無需立刻執行。

Hon Kwan JA:
上訴法庭法官關淑馨：

Facts and sentence
案情與刑期

On 16 February 2008, the appellant Cheng Ho Chow drove whilst under the influence of alcohol and a serious traffic accident ensued.  The result was that the female passenger on board died from head injuries, whereas his cervical vertebrae were injured, resulting in incomplete tetraplegia.  The appellant was charged with dangerous driving causing death.  He pleaded not guilty.
2008年2月16日，上訴人鄭河周醉酒駕駛，發生嚴重車禍，導致車上女乘客頭部受傷死亡，他的頸部脊椎受損，引致不完全的四肢癱瘓。上訴人被控危險駕駛引致他人死亡，他否認控罪。

On 24 February 2009, Deputy District Judge W. C. Li found him guilty after trial.  On 6 March 2009, Deputy Judge Li sentenced him to 2 year’s imprisonment and disqualified him from driving and from holding a driving licence for 4 years.  At the time of conviction the appellant was 45 years old.  He was not a professional driver.  He had 4 relatively minor criminal convictions and 2 violations of the traffic laws for which he was fined.
經審訊後，2009年2月24日，區域法院暫委法官李唯治裁定他罪名成立。2009年3月6日，李法官判他入獄兩年，吊銷駕駛執照4年。定罪時上訴人的年齡是45歲，他並非職業司機，有4項輕微的刑事記錄，和兩項觸犯交通法例罰款的記錄。

At the time of the accident, a person who committed this offence was liable on conviction on indictment to imprisonment for 5 years.  The Deputy Judge used 3 years as the starting point.  He considered that the only mitigating factor was the appellant’s serious injuries.  Having taken into account the medical reports, the Deputy Judge reduced the term to 2 years on the basis that when the appellant was imprisoned, he would suffer inconveniences in his rehabilitation and treatment.
案發時這控罪的最高刑罰，循公訴程序定罪是監禁5年。法官採取3年作為量刑起點，認為惟一的減刑因素，是上訴人的嚴重傷勢。考慮過醫生報告，基於上訴人在監獄服刑，對康復或治療的不便，法官把刑期減為兩年。

On 31 March 2009, the appellant applied for leave to appeal against sentence.  On 7 May 2009, he succeeded in obtaining bail pending appeal and was thereupon released from Stanley Prison.  On 25 June 2009, the Court of Appeal granted him leave to appeal against sentence.
2009年3月31日，上訴人申請許可就刑罰上訴。2009年5月7日，他成功申請保釋等候上訴，隨即從赤柱監獄獲釋。2009年6月25日，上訴法庭批准他就刑罰提出上訴。

So far, the appellant has served 2 months of his sentence in prison.  He asked the court to suspend the remainder of the 2 years’ imprisonment.  The sole ground he relied on was the humanitarian ground.
上訴人在監獄服刑，至今總共兩個月。他要求把兩年的餘下刑期緩刑。所持的惟一理由，是人道理由。

Authorities about dangerous driving causing death
危險駕駛引致他人死亡的相關案例

Recent cases in which the Court of Appeal dealt with sentencing concerning this offence include Secretary for Justice v. Poon Wing Kay and Liu Chun Pong [2007] 1 HKLRD 660; Secretary for Justice v. Fong Chai Man [2008] 3 HKLRD 493; HKSAR v. Au Yeung Kwok-kin CACC 21/2008; Secretary for Justice v. Yam Chun Keung CAAR 2/2008; and Secretary for Justice v. Lam Siu Tong and Wong Ton Fan [2009] 5 HKLRD 601.  When the defendants of these cases were sentenced by the trial judges, for this offence a person was liable on conviction on indictment to 5 years’ imprisonment and on summary conviction to 2 years’ imprisonment.  The law had not yet been amended.
就這控罪刑罰的相關案例，上訴法庭近期處理的案件有: 律政司司長 訴 潘永基及廖振邦  [2007] 1 HKLRD 660；律政司司長 訴 房濟民 [2008] 3 HKLRD 493；香港特別行政區 訴 歐陽國堅 CACC 21/2008; 律政司司長 訴 任振強 CAAR 2/2008; 和律政司司長 訴 林兆棠及黃敦凡 [2009] 5 HKLRD 601。這些案件在原審法庭判刑時，循公訴程序定罪最高刑罰是監禁5年，循簡易程序定罪最高刑罰是監禁兩年，法例當時尚未修改。

In Poon Wing Kay (paragraph 10, p.667G – p.668G) the Court of Appeal adopted the guidelines laid down by the Court of Appeal of England in R v. Cooksley & Ors. [2003] 2 Cr App R 18.  Chinese translation of these guidelines can be found in paragraph 12, on page 500 of Fong Chai Man.  The guidelines are set out below:
在潘永基 案667頁G至668頁G 第10段，上訴法庭採納了英國上訴法庭在 R v. Cooksley & Ors. [2003] 2 Cr App R 18的指引，譯文見於房濟民 案500頁第12段，茲引述如下:

在大多數的危險駕駛個案中，犯罪者顯然知道自己危險駕駛及應當因此受罰[R v. Cooksley & Ors. 第45頁J（第11段）]。記着這一點是很重要的。因為在某些情況下，確實是不應該將違反交通法例的人視為真正刑事罪犯，但話雖如此，對於危險駕駛引致他人死亡等罪行的犯罪者，就無必要如此仁慈地看待他們了。	“(1)	In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly: [R v. Cooksley & Ors. p.45 J (paragraph 11)].  This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.
“(1)

(2)	Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: [R v. Cooksley & Ors. p.46A (paragraph 11).  The impact on people’s lives ought to be taken into account when sentencing.
(2)    危險駕駛引致他人死亡，明顯會令死者的家人深感悲痛 [R v. Cooksley & Ors. 第46頁A （第11段）]。對別人一生造成的影響，在判刑時應予考慮。

(3)	It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving: [R v. Cooksley & Ors. p. 46C-E (paragraph 11)].  A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim.  The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.
(3)    另一點重要的，就是法庭必須清楚傳達一項信息：危險駕駛的行為有時候可能帶來極嚴重的後果，亦因此在判處多宗涉及危險駕駛的個案時，便有需要記住阻嚇的效用 [R v. Cooksley & Ors.第 46頁C至E（第11段）]。很多人往往可能忘記，駕駛汽車如達不到規定的標準，是可以奪去或殘害生命的。道路交通法例及其他規則載有在法律上規定駕車人士須達致的標準，這是要確保所有可能接觸到汽車的人（不論是其他駕車人士、乘客或行人）安全，生命不受危害。

(4)	While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  In assessing the overall seriousness of a crime, culpability is often the dominant factor: [R v. Cooksley & Ors. p. 47B (paragraph 14)]).  It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence.  Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.  In some cases (such as in the present case), the fact that only some aggravating factors exist but not others may still bring the case into a very serious category.
(4)    儘管可以在清單上一一臚列加重刑罰和減輕刑罰的因素，但判刑的法庭還須審視整體情況及犯罪者的整體刑責。在評估罪案的整體嚴重性時，刑責往往是主要的因素[R v. Cooksley & Ors.第47頁B（第14段）]。這並不是說數一數有幾多項加重刑罰或減輕刑罰的因素，然後機械式地計出有關的刑罰。量刑不是這般精密地進行計算，法庭而是必須充分靈活地考慮整體情況，以定出適當的判刑。一些個案（就如本案一樣）即使只有某些加重刑罰因素，但其他加重刑罰因素則欠奉，仍可令該等個案歸入非常嚴重一類。

(5)	One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians) or with a degree of recklessness: [R v. Cooksley & Ors. p. 46D-f (paragraph 12)].”
(5)    有一項主因，可視為支持重判的加重刑罰因素，即駕駛者自私地罔顧其他道路使用者或其車上乘客（或我們想補充的行人）的安全或在某程度上魯莽駕駛：[R v. Cooksley & Ors. 第 46頁D至F（第12段）]。”

In Lam Siu Tong and Wong Ton Fan (paragraph 13, p.609-610), the Court of Appeal made the following additional observations:
在林兆棠及黃敦凡 案 609 至 610 頁第 13 段，上訴法庭又作了這樣的補充，譯文如下:

“(1)	Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused.  The court is also usually informed of the deep remorse that is expressed.  The present cases provided no exception.
“(1)   危險駕駛引致他人死亡的罪行，求情時都幾乎千篇一律地向判刑的法庭提供資料，顯示被告人品格良好。被告人又通常會向法庭表示，深感後悔。目前處理的案件也不例外。

(2)	And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided.  Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine.  There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it.  As Yeung JA remarked in HKSAR v. Au Yeung Kwok-kin (CACC 21/2008, 25 August 2008) the courts will not show leniency to any driver who has endangered the lives and safety of other road users.
(2)    可是有一點不能忽略的，就是駕駛者的行為或失誤，以致奪去無辜的性命，這都是可以和應該避免的。駕駛者操縱着一部潛在致命的機器，危險駕駛必然涉及風險。這行為是無可寬宥的; 生命因此喪失，任何情況下都不成理。正如上訴法庭法官楊振權在香港特別行政區 訴 歐陽國堅 所說 (CACC 21/2008，2008 年8月25日)，法庭是不會輕判任何危害其他道路使用者生命安全的司機。

(3)	In these circumstances, good character and remorse may count very little.  These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided.  The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years’ imprisonment for convictions on indictment.
(3)    在這情況下，良好品格和悔意，可起的作用有限。對於因為駕駛者的行為或失誤而喪失性命的受害人，和與受害人有關連者，良好品格和悔意，只是些微的補贖，又或者根本不能算是補贖，皆因這樣的行為或失誤，是完全可以避免的。危險駕駛引致他人死亡，社會認為是嚴重的罪行，這正反映在最高刑罰的提高，這控罪的最高刑罰，循公訴程序定罪已由監禁5年增至10年。

(4)	The Court must therefore be astute to bear in mind the above considerations when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown.  This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence.  Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.”
(4)    當被告人向法庭提供個人資料，又表示悔意，衡量適當的刑罰時，法庭須精明地記住上述的考慮。這並不是說量刑時，悔意或良好品格是毫不相干的，這些因素當然要考慮，但是在本庭目前處理的罪行，便不應過度的重視。再說，被告人如及早認罪，可獲減刑，這都是不變的。”

The other cases referred to above, being only instances where the guiding principles were applied, need not be analysed one by one.
上文所述其他的案例，只是引用指導性原則的例子，毋需逐一分析。

What is involved in this case is reckless conduct as reflected in the appellant’s driving after consuming alcohol.  Paragraph (1), (2), (3) and (5) of the Poon Wing Kay guidelines are applicable.  As stated in paragraph (4), in assessing the overall seriousness of the crime committed in this case, the appellant’s culpability is the dominant factor.  One of the aggravating factors is that the appellant had driven with selfish disregard for the safety of other road users or of his passenger.  Even if the appellant felt remorse and regret for what he had alone, that cannot compensate for the harm done to the deceased and her family and therefore the court will not attach much importance to that.  He did not plead guilty and cannot be given the discount which could have been given had he pleaded guilty.
本案涉及酒後駕駛的魯莽行為，潘永基 案指引的第(1)、(2)、(3) 及 (5) 段都適用。評估本案罪行的整體嚴重性時，如指引第(4) 段所說，上訴人的刑責是主要的因素。其中一項加重刑罰的因素，是上訴人自私地罔顧，其他道路使用者或其車上乘客的安全。上訴人縱使對自己行為感到內疚和自責，都不足以彌補對死者和家屬造成的傷害，故此法庭是不會重視的。他沒有認罪，也得不到認罪的減刑。

The trial judge is correct to use 3 years as the starting point.
原審法官以3年作為量刑起點，是正確的。

Authorities about reduction of sentence on humanitarian ground
以人道理由要求減刑的相關案例

The fact that the offender suffered serious injuries in the accident caused by his dangerous driving is a mitigating factor (R v. Cooksley & Ors., paragraph 22).  The trial judge had referred to a similar English case R v. Mallone [1996] 1 Cr. App. R. (S.) 221.  The defendant in that case drove under the influence of alcohol, with the result that 1 person was killed and 1 person was injured.  He suffered serious injuries on many parts of his body including his face.  He lost the sight of his right eye and the use of his right arm and right leg.  Although the serious injuries of the defendant was caused by his own conduct, the Court of Appeal of England held that the sentencing court should have taken into account this matter and 5 years’ imprisonment was reduced to 4 years.  Based on this authority, Deputy Judge Li reduced 3 years’ imprisonment to 2 years.
犯罪者因危險駕駛造成的意外嚴重受傷，是一個減刑的因素 (R v. Cooksley & Ors.，第22 段) 。原審法官參考了英國相若的案例，R v. Mallone [1996] 1 Cr. App. R. (S.) 221 ，該案的被告人醉酒駕駛導致一人死亡，一人受傷，他的身體多處受重傷，包括面部，他喪失右眼視力，右臂和右腿的活動能力。雖然被告人的嚴重傷勢，是自己的行為引致，英國上訴法庭認為量刑時應該考慮這點，把5 年監禁改為4年。基於這案例，李法官把3年的刑期，調低至兩年。

The Senior Public Prosecutor referred to a number of Hong Kong cases on the question of whether the defendant’s ill health or his physical disabilities resulting from injuries received in the course of his criminal act can be a ground for reducing sentence.  In Yip Kai Foon v. HKSAR (2000) 3 HKCFAR 31, the appellant had committed many serious crimes, including escape from prison.  When he was resisting arrest he received a gunshot wound that turned him into a paraplegic.  He was sentenced to a total of 36 years’ imprisonment.  He pleaded for reduction of sentence on the ground that he had suffered serious injuries.  The Court of Final Appeal dismissed his application.  The following remarks were made by the Chief Justice from p.35F-G and p.35I-p.36C:
就被告人健康欠佳，或因犯罪受傷引致身體殘障，是否可作為減刑理由，高級檢控官也引述了一些香港的案例。在葉繼歡 訴 香港特別行政區 (2000) 3 HKCFAR 31，上訴人犯了多項嚴重罪行，包括越獄，拒捕時中槍致使半身癱瘓，被判入獄共36年，他以嚴重傷勢為理由要求減刑，終審法院拒絕了申請。首席法官在35頁 F 至 G及 35頁I至36頁C這樣說，譯文如下：

“Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity. …
“嚴重的罪行，是根據逐步演進的指引和原則量刑，醫療的理由，在極少的情況下，假如真有這樣的情況，方可構成減刑的理由。…

In these cases, the defendant’s physical condition did not result from injuries received in the course of criminal acts.  Where his condition did so result, the Court of Appeal held in R v Chak Shui Chung [1989] 2 HKLR 81 that as a general rule such injuries would not be a factor for consideration as regards the length of imprisonment to be imposed for those criminal acts.  As Silke V-P observed at p.84G:
在這些案例，被告人的健康情況，並非因犯案時受傷引致。若然身體狀況由此引致，上訴法庭在 R v. Chak Shui Chung [1989] 2 HKLR 81 裁定，一般的原則，在量刑時這些傷害不在考慮之列。上訴法庭副庭長邵祺在84 頁G有這樣的看法:

‘… In the majority of cases the injured person has brought his misfortune upon himself and it is the criminal act which attracts the punishment, a punishment not lessened by virtue of damage to the perpetrator of that act while in the course of it.
‘… 在大多數的案件，傷者的不幸是自己一手造成，他的刑事行為因此受到懲罰，懲罰不會因犯罪者犯案時對自己造成的傷害減輕。’

But it was held that there are exceptions where the injuries are very serious.  What the Court of Appeal was saying was that, exceptionally, very serious injuries, even where suffered in the course of criminal activity, can be taken into account to reduce the sentence.  There is of course no question of ‘must be’.  In deciding whether the sentence should be reduced for this reason, all the circumstances of the case would have to be considered.  In Chak Shui Chung, the defendant lost both arms when dismantling bombs and had pleaded guilty to possession of explosive substances.  The Court of Appeal, in deciding to reduce the sentence of imprisonment from 7 to 5 years, considered that in the circumstances of that case the loss of both arms was in itself both a deterrent to future criminal participation and a personal punishment of great severity.”
但有案件認為，非常嚴重的傷害，可以構成例外。上訴法庭其實是說，在罕有的情況下，非常嚴重的傷害，即使是犯案時造成，可以考慮作為減刑因素。當然這並非是‘必然’ 要考慮的。決定應否為此減刑時，案件所有的情況都需要考慮。在Chak Shui Chung 案，被告人拆除炸彈時失去雙臂，承認藏有爆炸性物質的控罪。上訴法庭把7年監禁改為5年，基於失去雙臂，在該案的情況，對將來犯案已具阻嚇，亦對犯罪者是極嚴厲的懲罰。”

In HKSAR v. Tam Yuen Tong [2007] 1 HKLRD 894, McMahon J said at p.896 A-C as follows:
在HKSAR v. Tam Yuen Tong [2007] 1 HKLRD 894，高等法院原訟法庭法官麥明康在896頁A至C如是說，譯文如下：

“… Ill health generally will not normally operate as a mitigating factor.  That is because prison medical facilities are regarded as adequate to deal with prisoners’ physical complaints.  As a matter of reality most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive.  Accordingly the ill health, with the exception of perhaps very serious ill health, of an offender will not be a matter taken into account in mitigation: see R v Chan Kui Sheung [1996] 3 HKC 279 at 284 and R v Lo Chi Keung [1996] 3 HKC 155. Again, however, in exceptional circumstances and as an act of mercy rather than as a principle of mitigation, ill health may result in a reduction of sentence.”
“一般來說，健康不佳通常不會是減刑的因素，因為監獄的醫療設施，被視為足夠去處理有關囚犯身體的投訴。而事實上，大多的囚犯在獄中獲得的醫療照顧，比起他們原有的照料，是相等或較佳的。因此，健康不佳，除非可能是極嚴重的情況, 求情減刑時是不會考慮的：見 R v. Chan Kui Sheung [1996] 3 HKC 279的284頁和 R v. Lo Chi Keung [1996] 3 HKC 155。再者，在罕有的情況下和出於憐憫，並非是基於減刑的原則，健康不佳可達至減刑。”

In HKSAR v. Tsang Wai-kei, CACC 452/2002, Yeung JA expressed the following views in paragraph 18:
在HKSAR v. Tsang Wai-kei, CACC 452/2002，第18 段，上訴法庭法官楊振權有這樣的意見，譯文如下：

“The court must on the other hand keep a proper balance between the public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest must prevail.”
“另一方面，法院應在公眾利益，和被告人異常的苦況，取得適當的平衡。在極嚴重的罪行，應以公眾利益為重。”

I have also referred to a recent case Grenfell v. R [2009] NSWCCA 162 of the Court of Criminal Appeal of New South Wales, Australia. In that case, the appellant was 77 years old. He pleaded guilty to crimes relating to fraud and was sentenced to 2 years and 8 months’ imprisonment. He was suffering from a near total loss of vision due to disease, with only peripheral vision remaining. The degenerative condition of his spine at the lumbar region aggravated because of injury. He also had a hypertensive condition and renal problems. He required daily medication. His diet was regulated and restricted. He appealed against sentence, relying on these facts. After considering medical reports and the medical facilities provided by the corrective services, the Court of Criminal Appeal upheld the sentence. In paragraph [33] the Court referred to the principle expounded by King CJ in R v. De Vroome (1987) 38 A Crim R 146 at p.147, which is set out below:
本席也參考了澳洲新南威爾斯州刑事上訴法庭近期的案例，Grenfell v. R [2009] NSWCCA 162。該案上訴人77 歲，承認詐騙罪被判入獄兩年8 個月，因病幾近完全失明，只有周邊視力，腰部脊椎因傷加劇退化，患有高血壓和腎病，需每天服藥，飲食需受規定和限制，以此要求減刑。上訴法庭考慮過醫生報告，和懲教部門的醫療設施，決定維持原判。在第[33]段，法庭引述了King CJ 在R v. De Vroome (1987) 38 A Crim R 146 的147頁的原則，譯文如下：

“The courts can make some adjustment to sentences to take account of the additional hardship caused to an offender by his condition, but they are necessarily limited in the extent of such adjustment by the necessity of maintaining proper standards of punishment.”
“法庭可基於犯罪者，因其狀況承受加重困苦，在量刑時作出調整，不過調整的空間是有限度的必要，因為也有必要維持適當的刑罰。”

The following conclusions can be drawn from the above authorities:
綜合上述的案例，得出的結論可歸納如下：

(1)	Ill health generally will not operate as a mitigating factor. Medical facilities available in the prisons in Hong Kong are adequate to deal with prisoners’ general physical complaints.
(1) 一般而言，健康不佳通常不會是減刑的因素。本港監獄的醫療設施，足夠處理有關囚犯身體的一般投訴。

(2)	In rare circumstances, very serious injuries, even where suffered in the course of criminal activity, can be (but not must be) taken into account to reduce the sentence.
(2) 在罕有的情況下，非常嚴重的傷害，即使是犯案時造成，可以考慮 (但不一定) 作為減刑理由。

(3)	Reduction of sentence under these circumstances can be done as an act of mercy or on the basis that the hardship which the offender in question will suffer when he is in prison will, because of his disabilities or ill health, be more than those suffered by a healthy person.
(3) 這情況下減刑，可以是出於憐憫，也可以是基於犯罪者因殘障或健康惡劣，在監獄服刑承受的困苦，要比健康的人為甚。

(4)	Adjustment made to a sentence under these circumstances must be within proper limits, because of the necessity of maintaining proper standards of punishment.
(4) 這情況下調整刑罰，必須是適度的調整，因為也需顧及維持適當刑罰的必要。

(5)	In order to decide whether a sentence should be reduced for this reason, all the circumstances of the case should be considered.
(5) 在決定應否為此減刑時，案件的所有情況都需要考慮。

(6)	The court must keep a proper balance between public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest no doubt must prevail. But even when the offence is not of extreme gravity, that is not an indication that due weight does not need to be given to public interest.
(6) 法庭應在公眾利益，和被告人的異常苦況，取得適當的平衡。極嚴重的罪行，固然要以公眾利益為先。即使罪行並非極其嚴重，也不等於公眾利益可以不需重視。

Appellant’s health condition
上訴人的健康情況

The appellant received an operation on the day following the accident. One year later at the time of sentencing, his injuries were stabilized. According to the report written in March 2009 by the doctor responsible for his treatment, the improvement of his upper limbs was fair. He was able to hold a spoon, albeit with some difficulty, but could not lift up both arms. With a specially designed arm support, he could take food on his own. Walking ability and excretory function were the areas with satisfactory improvement. He was able to walk with support for long distance and was capable of self-voiding. The aim of the therapy provided was to maintain his self-care ability. The doctor in charge of his treatment was of the opinion that in the prison environment he could only obtain limited limb training and physiotherapy, so that there was a chance that his limb function would deteriorate. He suggested that he need continuous treatment by therapists at regular intervals and care provided by his family members.
上訴人案發後翌日接受手術，一年後判刑時他的傷勢已穩定下來。據負責治療的醫生2009年3月的報告，他上肢康復尚可，能勉強以手握住匙羹，但不能提起雙臂，採用特製工具支撐手臂，可自行進食。步行的能力與排泄機能，都有滿意的進展。他可以藉著支撐，行走長的路程，也能自我排泄。治療的方向，是維持他自理的能力。主診醫生認為在監獄的環境，他只能獲有限度的四肢訓練和物理治療，肢體功能可能因而變壞，提出他需要治療師經常定期的治療，和家人的料理。

There is also a report submitted by a Medical Officer of Stanley Prison in July 2009, which stated that when the appellant was transferred to the prison hospital in mid-March, his lower limbs recovery was well. He could stand up by himself and walk slowly with support. His upper limbs recovery was fair. He was provided with a mobile arm support by the physiotherapist and he could take food on his own. Arrangements were made by the prison hospital for him to attend the orthopaedic clinic of United Christian Hospital for follow-up treatment on two occasions in April and July, and to attend David Trench Rehabilitation Centre for physiotherapy on two occasions in April. According to this report, after he received physiotherapy for the second time, which was on 16 April 2009, no further physiotherapy was required.
赤柱監獄醫院的醫生，在2009年7月也提交了報告，指出上訴人在3月中進入監獄醫院時，下肢復元良好，可以自行站立，及藉著支撐緩慢行走，上肢康復尚可，物理治療師為他提供了活動的手臂支架，可自行進食。監獄醫院安排他在4月和7月，兩次到基督教聯合醫院骨科診所，接受跟進治療，和兩次在4月到戴麟趾康復中心，接受物理治療。據這報告，2009年4月16日第二次物理治療後，他不需要再接受物理治療。

The final medical report was submitted by the United Christian Hospital in October 2009, which stated that there was good union of bone graft in the cervical spine.  There were still numbness and weakness in his four limbs, with spasticity and pain.  During the last follow-up, which was on 30 September, he was able to walk slowly with a frame and under supervision.  He used a wheelchair in outdoor environment.  He was not suffering from incontinence.
最後的醫生報告，是2009年10月由基督教聯合醫院提供，上訴人頸部脊椎移植的骨骼，結合良好，仍有四肢麻痹和乏力，有痙攣和痛楚，在報告最後一次跟進時，即是9月30日，能以支架和在指導下緩慢步行，在戶外環境則用輪椅，沒有失禁。

The appellant claimed that during the period when he was serving his sentence, he had received only one session of physiotherapy.  He felt that his shoulder blades and the tendons of his arms and legs were wasting away, and that the function of his various organs deteriorated rapidly.  Since 7 May 2009 when he was granted bail pending appeal, he has been to Kowloon Hospital two times every week for physiotherapy.  He has also consulted practitioners of Chinese medicine.  He did not submit any recent medical report to the court.  He asked for suspended sentence in order that he could receive “concentrated treatment and better care”.
上訴人聲稱在服刑期間，只能獲得一次物理治療，他感覺到肩胛骨及手腳筋萎縮，身體機能迅速下滑。自從2009年5月7日，獲准保釋等候上訴，期間每週兩次到九龍醫院做物理治療，也有看中醫。他沒有向法庭提交近期的醫生報告。他要求緩刑，讓他能接受「密集式的治療，和較好的照顧」。

Both in his written submission and oral submission the appellant described in detail that owing to his physical condition, in every aspect of his daily life he needed assistance and care, and that only his family members would be able to take care of him with the requisite degree of consideration and attention, which would be unattainable in prison.  At the time of the accident, he was the sole breadwinner of the family.  His occupation was construction engineering technician, but his wife was not working because she had to take care of an infant son and an infant daughter.  After the accident, he has been living on insurance compensation, which can support him as a means of living for 2 to 3 years.  His relatives also gave him financial support.  Recently, he successfully applied for financial assistance from the patients fund of Yan Chai Hospital and used it for the purchase of medical equipment.
上訴人在他的書面及口頭陳詞，細表由於身體狀況，他的生活起居，每每需人協助和照料，體貼和悉心的照顧，只有家人可以給他，在獄中是得不到的。事發時他是家庭惟一經濟支柱，職業是建築工程技工，妻子沒有工作，因為要照顧一對年幼子女。事發後他依賴保險賠償維持生計，可足夠兩至三年生活，他的親人也給予經濟上援助，近期成功申請了仁濟醫院的病人基金資助，購買醫療用具。

Medical facilities available in the prisons for disabled prisoners
監獄對殘障囚犯的醫療設施

At the request of the court, the Correctional Services Department submitted a report in October 2009 on the medical facilities available in the prisons.  If the appellant has to serve his sentence, he would most likely be sent back to Stanley Prison, where there is a hospital.  All prisoners upon admission to correctional institutions will be examined by Medical Officers and appropriate treatments or rehabilitation programmes such as physiotherapy or occupational therapy would be arranged for them if necessary.  If specialist consultation is required, they will either be treated by visiting specialists from the Hospital Authority or sent to outside clinics for treatment.
懲教署應上訴法庭要求，在2009年10月就監獄的醫療設施提供報告。上訴人如需服刑，很大可能會被遣回赤柱監獄，該監獄設有醫院。入獄時囚犯要接受醫生檢查，有需要會被安排適當的康復療程，例如物理治療或工作治療。如果需要專科診治，會由醫管局的外訪專科醫生治理，或被送往外間診所醫療。

All along, the Correctional Services Department has been taking care of disabled prisoners, for example, prisoners suffering from quadriplegia, paraplegia or suffering from a paralytic stroke.  Para-medical services like physiotherapy and occupational therapy are provided for those prisoners by the department, whereas prostheses are provided by the Hospital Authority.  In addition, equipment such as wheelchairs, walking frames, crutches and handrails are available in the prisons.  At the time of the report, in the prison/prisons there was one prisoner suffering from paraplegia and several prisoners who could not walk properly and needed walking aids.
懲教署一向有收容殘障的囚犯，例如是四肢癱瘓、下肢癱瘓、中風的人。懲教署有為他們安排護理服務，例如物理治療、工作治療，由醫管局提供義肢，監獄亦有提供輪椅、步行支架、拐杖，扶手的設施。在作出報告時，監獄有一名囚犯下肢癱瘓，有數名囚犯不良於行，需步行扶助。

In addition to the existing rehabilitative programmes provided to prisoners serving their sentences, Medical Officers stationed in the prison can refer the appellant to specialists of the Hospital Authority for training and treatment.  The Correctional Services Department claimed that they were capable of providing adequate care to the appellant.
除了現在提供給服刑犯人的康復療程，監獄的醫生也可把上訴人轉介至醫管局的專科，接受訓練和治療。懲教署認為，有能力對上訴人提供足夠的照顧。

The Senior Public Prosecutor referred to sections 3 and 11 of the Prisons Ordinance, Cap. 234 and rules 72, 91, 143, 144 and 148 of the Prison Rules.  According to these provisions, there are Medical Officers in the prisons to take charge of medical matters.  A Medical Officer is responsible for the treatment of the prisoners when they are sick.  He shall report to the Superintendent about the health of the prisoners, and shall make daily visits to the sick in the prison hospitals.  If a prisoner cannot properly be treated in a prison, the Commissioner may order that the prisoner be taken to a government hospital or other suitable place for the purpose of treatment.  Every officer of the Correctional Services Department shall direct the attention of the Superintendent to any prisoner who appears to be out of health, and the Superintendent shall without delay bring such cases to the notice of the Medical Officer.
高級檢控官也引述了《監獄條例》(第234章) 第3和11條,《監獄規則》第72、91、143、144及148條。根據這些條文，監獄有醫生主管醫療事務，負責治療患病的囚犯，須就囚犯的健康向監督提報告。醫生須每天巡查監獄醫院的病人。如果囚犯在獄中無法獲得妥當治療，署長可命令將囚犯帶往政府醫院或其他合適地方接受治療。所有懲教署的人員，須促請監督注意看似健康欠佳的囚犯，而監督須立即通知醫生患病囚犯的情況，不得延誤。

My finding
本席的裁定

Having considered the physical condition of the appellant and the fact that the hardship he suffers in prison will be more than that suffered by an ordinary person, I hold that the trial judge, in reducing the term of 3 years’ imprisonment to 2 years, had not taken into account sufficiently the appellant’s predicament in prison.  There should be a further reduction.
本席考慮到上訴人的身體狀況，他在監獄服刑承受的困苦，要比常人為甚。原審法官把3年刑期減為兩年，本席認為法官未有充份地考慮，上訴人在獄中服刑的困境，他應獲減刑。

However, I do not agree that the sentence should be changed to a suspended one.  Adjustment made to the sentence by reason of the appellant’s health condition must be within proper limits because of the necessity of maintaining proper standards of punishment.  Having caused the death of another person by driving dangerously under the influence of alcohol, the culpability of an offender of such a crime is grave indeed, because he selfishly disregarded the safety of other road users with the result that an innocent life was taken away.  The court must keep a proper balance between public interest and the exceptional hardship suffered by the appellant.
但是本席不同意把刑期改為緩刑。以上訴人的健康情況調整刑罰，必須是適度的調整，法庭也需顧及維持適當刑罰的必要。醉酒危險駕駛，引致他人死亡，犯罪者的刑責是嚴重的，因為他自私地罔顧其他道路使用者的安全，以致奪去無辜的性命。法庭應在公眾利益，和上訴人的異常苦況，取得適當的平衡。

I understand that when the appellant serves his sentence in prison, the physical and mental suffering borne by him because of his inability to take care of himself will render his punishment more severe than that visited on an ordinary prisoner whose suffering is only deprivation of freedom.  The treatment and care provided by the Correctional Services Department certainly cannot be compared with those given by his wife and relatives, but the care provided by the Department is adequate, just as the care being currently provided to other disabled prisoners.  If it is necessary to do so, the Medical Officers in the prison can make arrangements for referring him to specialists of the Hospital Authority for training and treatment so that the recovery of his physical functions can be maintained.
本席理解上訴人在獄中服刑，因為無力自理，身心都受折磨，他的懲罰要比一般被剝奪自由的囚犯為大。懲教署可給予的治療和照顧，當然不能與他的妻子和親人的照料相比，不過懲教署的照料是足夠的，正如目前照料其他有殘障的囚犯一樣。如有需要，監獄的醫生可安排他往醫管局的專科，接受訓練和治療，保持身體機能的康復狀況。

The appellant claimed that he asked for a suspended sentence because he had the interests of his family at heart, and that he would strive to take care of himself as much as possible so as not to be a burden of his family.  Regardless of whether he is to serve his sentence in prison, that should be his target.
上訴人聲稱要求緩刑，是為了家人着想，希望能盡量做到自理，不想成為家人的負累。無論是否在監獄服刑，這都應該是他的目標。

I find that in view of the appellant’s special circumstances, the appropriate term should be one third of the starting point, that is 1 year imprisonment.
本席認為在上訴人的特殊情況，適當的刑期應是量刑起點的三份一，即是一年監禁。

Hon Tong J:
原訟法庭法官湯寶臣：

I concur with the judgment of Kwan JA. I allow the appeal and the term of imprisonment is reduced from 2 years to 1 year.
本席認同上訴法庭法官關淑馨的裁決，判定上訴人的上訴得直，其刑期由2年減至1年。

Hon Yeung JA:
上訴法庭法官楊振權：

This court unanimously allow the appeal against sentence, and by majority the term of imprisonment of the appellant is reduced from 2 years to 1 year, which shall take effect immediately.
本庭一致裁定上訴人的減刑上訴得直，但以大比數裁定上訴人的刑期由2年減至1年，並需立刻執行。

Ms. Teresa Kam, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官金玉代表。

The Appellant, acting in person, present.
上訴人：無律師代表，親自應訊。