HKSAR v. TAM KWOK CHOI

HKSAR v. TAM KWOK CHOI

The court held the statutory increase in maximum penalty to 10 years did not operate retrospectively and could not justify harsher sentence for offences committed before commencement; the 2 year starting point adopted by the magistrate was not supported by authorities for this case and the appropriate starting point after trial would have been 1 year, reduced by one-third for a guilty plea to 8 months imprisonment; the three year driving disqualification was to stand and the appellant was awarded costs of the appeal.

Citation
HKSAR v. TAM KWOK CHOI
Parties
Respondent: HKSAR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 November 2008
Case Number
HCMA700/2008
Procedural Posture
Magistracy Appeal / Appeal Against Sentence to Court of First Instance From Magistrate's Court
Outcome
Appeal allowed; sentence reduced
Legal Topics
Dangerous Driving Causing Death, Retrospectivity of Increased Penalty, Sentencing Starting Point, Costs on Appeal, Sentencing Guidelines
Source Language
EN
Criminal Law Sentencing Road Traffic Law Dangerous Driving Causing Death Retrospectivity of Increased Penalty Sentencing Starting Point Costs on Appeal Sentencing Guidelines

Case Brief

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Parties

HKSAR

Respondent

Procedural Posture

Magistracy Appeal / Appeal Against Sentence to Court of First Instance From Magistrate's Court

Legal Issues

  1. 1 Whether an increase in statutory maximum penalty applies retrospectively to offences committed before the amendment
  2. 2 Whether the magistrate erred in adopting the 2 year maximum as the starting point for sentence in this case
  3. 3 Whether the appellant should be awarded costs of the successful appeal under s.8(b) Costs in Criminal Cases Ordinance

Ratio Decidendi

The court held the statutory increase in maximum penalty to 10 years did not operate retrospectively and could not justify harsher sentence for offences committed before commencement; the 2 year starting point adopted by the magistrate was not supported by authorities for this case and the appropriate starting point after trial would have been 1 year, reduced by one-third for a guilty plea to 8 months imprisonment; the three year driving disqualification was to stand and the appellant was awarded costs of the appeal.

Court Disposition

Appeal allowed; sentence reduced

Orders

  • Sentence of imprisonment reduced to 8 months
  • Driving disqualification of 3 years ordered by magistrate to remain