HKSAR v. WONG WILLIAM YEE LAI

HCMA 618/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 618 OF 2013

(ON APPEAL FROM ESCC 656 OF 2013)

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J U D G M E N T

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BACKGROUND

1.  On 12 August 2013, the Appellant pleaded guilty before the magistrate to one charge of “driving whilst disqualified” and another charge of “using a vehicle without third-party insurance”.  The magistrate then adjourned sentence pending a background report and a suitability report for community service order.  Eventually, on 26 August 2013, despite the recommendation of the probation officer that a community service order be imposed, the magistrate sentenced the Appellant to 2 months’ imprisonment for each charge, both sentences to run concurrently.

2.  The Appellant now appeals against the sentence.

THE SUMMARY OF FACTS

3.  The facts admitted by the Appellant disclosed that in the small hours of 12 January 2013, the Appellant was stopped by the police officers at a road block while driving his private car.  Upon enquiry, the Appellant produced his driving licence to the police officer.  It was then revealed that the Appellant was disqualified from driving all classes of vehicle for nine months from 16 July 2012 to 15 April 2013.  The Appellant was therefore arrested.  Under caution, the Appellant claimed he did not know that his driving licence was suspended as he had not attended the previous court proceedings in which he was represented by his lawyer.

THE MITIGATION ADVANCED BEFORE THE MAGISTRATE

4.  The Appellant was represented by Mr Michael Blanchflower, SC, on 12 August 2013 when he pleaded guilty before the magistrate.  At the hearing on 26 August 2013 when the reports were available, the Appellant was represented by Mr Joseph Tse, SC.  Both leading counsel had mitigated on behalf of the Appellant on those two occasions.

5.  In gist, it was said that the Appellant's life was in turmoil in around 2012 because his mother was diagnosed with cancer and he himself was going through a marriage separation.  On 11 January 2013, the Appellant's mother returned to Hong Kong from the States because she was terminally ill.  As there was not enough space for the medical equipment, the staff and family members, the Appellant drove to the airport to provide an extra car to pick up his mother.  After sending his mother to the hospital, the Appellant was stopped by the police on his way back to the car park.  The Appellant’s mother unfortunately passed away on 18 August 2013.

6.  In mitigation, it was said that the Appellant was a very successful businessman, a devoted family man and a workaholic.  Leading counsel also laid emphasis on the fact that, other than some traffic records, the Appellant did not have any criminal conviction.

GROUNDS OF APPEAL

7.  Mr Gary Plowman, SC, appearing with Mr Derek Chan, relies on the following grounds of appeal:

(1) The magistrate erred in relying on the Appellant’s statement to the probation officer that he was unaware of the previous disqualification order as the sole indicator of the Appellant's lack of genuine remorse, thereby refusing to impose a community service order despite the recommendation of the probation officer;

(2) The magistrate erred in finding that the Appellant flagrantly and/or deliberately contravened the previous disqualification order; and

(3) The magistrate erred in failing to impose a community service order in circumstances where a legitimate expectation had been created in the Appellant's mind that such a sentencing option would be followed if the reports were favourable.

A CONSIDERATION OF THE SUBMISSIONS

(A)   The Usual Sentence

8.  Before I deal with the grounds of appeal, I should state at the outset that Mr Edmond Lee, SADPP, for the Respondent, is entirely correct in pointing out that although there is no tariff for the offences in question, the norm is immediate imprisonment unless there are some exceptional circumstances or unless the case does not involve any flagrant breach of the disqualification order.  Mr Lee has studiously provided a long list of authorities[1] to the court to illustrate this point and to illustrate that 2 months’ imprisonment upon a guilty plea could not be said to be inappropriate.  There is, however, no need for me to go through the authorities here for Mr Plowman does not seek to argue otherwise.

9.  In fact, the magistrate stated in the “Reasons for Sentence” that,

“Although a CSO is not an appropriate sentence for driving while disqualified, given the reasons that the Defendant came from a good background with a clear record, pleaded guilty, and did not cause any accident in the case, etc, I, at first, had intended to offer the Defendant a chance to reform, so I called for a CSO Report for my perusal and consideration.”[2]

10.  Two things are clear from the above.  Firstly, when calling for the CSO report, the magistrate was well aware that an immediate custodial term is the norm.  If not, he would not have made the above comment.  Secondly, the magistrate must have taken the view that this case, on its own factual matrix, was an exceptional one and the consideration of CSO was not inappropriate.  If not, the magistrate would not have called for such a report.

(B)   The Alleged Lack of Knowledge

11.  At this hearing, Mr Plowman stresses that the magistrate should have warned the defence if he did not accept that the Appellant had no knowledge of the disqualification order or if he did not accept that the Appellant was genuinely remorseful.  Mr Plowman further submits that the two leading counsel appearing before the magistrate on behalf of the Appellant indeed mitigated on the basis of a lack of knowledge.

12.  Mr Lee, on the other hand, emphasizes that the Appellant’s leading counsel had never put forth the alleged lack of knowledge as a mitigating factor, and if they were to argue before the magistrate that the Appellant had no knowledge of the disqualification order, the prosecution would have easily rebutted such an assertion by way of a Newton Hearing.  Secondly, Mr Lee submits that the magistrate was entitled to take the view that there was a lack of genuine remorse on the part of the Appellant after reading the reports.

13.  Thus, there are two matters in dispute.  The first one is whether or not the mitigation was advanced on the basis of knowing defiance.  The second matter is whether the probation officer’s reference in the report to the Appellant “shared that he was unaware of his disqualification for driving”[3] amounted to a lack of genuine remorse, resulting in the Appellant not being suitable for CSO.

14.  The first matter could be dealt with quickly.  It is not disputed that at the time of mitigation, both leading counsel had not put in clear and unequivocal terms that the Appellant was unaware of the disqualification order when he drove on the material day.  Similarly, leading counsel had not made any specific reference to the lack of knowledge as a mitigating factor.[4]

15.  In fact, what was said during mitigation was this :

“Same as his usual practice, he would not drive while disqualified. Right, why would he have to drive a car this time, …”, “It was unfortunate for the Defendant that out of his love for his mother, and out of his filial piety, knowing that two cars would not be enough, he drove his own car to the airport, … It was under these circumstances that he had committed this offence. … he is not using this as an excuse; he knows that he has done wrong, so he pleaded guilty”, and “the Defendant committed the offence on this occasion purely out of his filial piety. This was an exceptional circumstance. Under normal circumstances, he would not drive while disqualified and he would have no need to do so.”[5]

16.  Reading these statements in context, I cannot see how the lack of knowledge argument is tenable and it can be safely assumed that the magistrate must have taken it as a fact that the Appellant was aware of the disqualification order when he drove.  In the Reasons for Sentence, the magistrate actually stated that “the Defendant took the risk to drive.”[6]  It was on this factual basis that the magistrate decided to call for the CSO report.  In other words, the magistrate did not consider the fact of knowing defiance of the disqualification order a matter which, in this case, would make the calling of the CSO report inappropriate.

17.  Viewed in this light, the present case is not one in which the magistrate misunderstood it as a less serious case when calling for the CSO report but he later found out that the case was actually more serious, thereby rendering the CSO option no longer appropriate.  Instead, the magistrate, from the very beginning, took it as a fact that there was knowing defiance but he, nevertheless, still considered that the CSO was a viable option.

18.  Pausing here, I should state that if the magistrate had come to the conclusion that the Appellant should be sent to prison, it was a view which was open to the magistrate and, as pointed out by Mr Lee, immediate imprisonment is the norm for this type of offence.  However, in this case, the clear intention of the magistrate was to consider CSO.  Such was a view which the magistrate was entitled to take on the facts of the present case given the special circumstances surrounding the commission of the offence by the Appellant.  Therefore, I do not propose to revisit this issue concerning the correctness of the CSO option.

(C)   The Lack of Remorse

19.  As a result, what remains for me to examine is whether the magistrate was correct in regarding the utterance reported to have been made to the probation officer by the Appellant as indicating a lack of remorse which renders the Appellant not suitable for CSO.  As accepted by Mr Lee, this is the central issue in this appeal.

20.  Now, the probation officer’s observations were these,

“Regarding to the present offence, Defendant expressed his deep remorse and admitted his fault. He was aware that it was wrong to drive while disqualified. Defendant shared that he was unaware of his disqualification for driving. He revealed that on the material day his terminally ill mother came back to Hong Kong from USA by air … Out of filial piety, Defendant went to the airport to drive his beloved mother home. He admitted that he should take the initiative to clarify the court disposal of his previous traffic offence. Defendant admitted his guilt and had learnt a grave lesson from the present legal proceedings and pledged never to infringe law again. … In sum, Defendant appeared to have gained in-depth insight from the present legal proceedings during the social enquiry. Taking into account of his remorseful attitude, regulated living pattern and positive family support, it is worth to give a chance for Defendant to reform in the open. Hence, Community Service Order which is both punitive and rehabilitative is recommended.”[7]

21.  In the Reasons for Sentence, the magistrate stated that,

“However, in the report, the Defendant once again argued dubiously that had he clarified earlier the previous court ruling on speeding, he would not have been led into committing the driving while disqualified offence. In fact, after the Defendant had pleaded guilty in this case, he repeatedly blamed the lawyer who was representing in his speeding case for failing to inform him of the result of the trial, and used this as an excuse for shunning his culpability in this case. This reflects his lack of genuine remorse. As the essential requirement of CSO is that it can only be applied to an offender who has gained insight into his wrongdoing, I therefore regrettably ruled out CSO as a basis for punishment.”[8]

22.  First of all, both parties accept that there is nothing in the transcript or in the case papers which shows or records that the Appellant shifted the blame to his lawyer.  Mr Lee suggests that if one were to take into account the Appellant’s response made under caution and the Appellant’s utterances made to the probation officer, such was a view which the magistrate was entitled to take.  I do not agree.  There was not any occasion on which the Appellant could be said to have put the blame on his lawyer.  Likewise, there was never any reference made by the Appellant to the effect that he had been misled by his lawyer.

23.  Under caution, the Appellant only said that he did not attend the previous court proceedings as he was represented by his lawyer.  That was, in any event, a fact not in dispute.  During his interview with the probation officer, all that the Appellant said was he himself should take the initiative to clarify the court disposal of his previous traffic offence.  Again, there was no shifting of blame to his lawyer.

24.  In the circumstances and given the material available, I agree with Mr Plowman that there was no basis for the magistrate to find that the Appellant blamed his lawyer for his own wrongdoing, not to mention “repeatedly blamed the lawyer”.  The magistrate therefore erred in making such a finding.

25.  As a result, the magistrate was again in error when he relied on this erroneous finding to conclude that the Appellant was “shunning his culpability in this case” and there was a lack of genuine remorse.  In the end, the magistrate incorrectly concluded that he had to “rule out CSO as a basis for punishment”.

26.  I have already set out rather extensively the probation officer’s comments and observations.  Clearly, when the Appellant’s utterance of being unaware of the disqualification order was examined in context and when the probation officer’s report was considered as a whole, one would not get the impression that the Appellant was not remorseful.

27.  In the circumstances and in order to give effect to the magistrate’s original intention of imposing CSO, I would replace the term of 2 months’ imprisonment with a community service order of 240 hours for each of the offences.

(D)   Legitimate Expectation

28.  Given the conclusion that I have reached, there is no need for me to deal with the ground concerning legitimate expectation[9] in detail and I would only say this.  In the present case, since the sentencing norm is an immediate custodial sentence and since the magistrate had told the Appellant that he would call for a CSO report “as a sentencing option consideration” without reminding the Appellant that all sentencing options were open, it could be that the Appellant might have, at that time, been misled into believing that he would receive a non-custodial sentence.[10]

29.  However, as correctly pointed out by Mr Lee, this belief, if it ever existed, of being ordered to perform CSO and not to be sent to prison must have been shattered shortly afterwards for the magistrate had ordered the Appellant to be remanded in custody pending the preparation of the background report and the CSO report.  Therefore, whether or not, as suggested by Mr Lee, the Appellant’s leading counsel must have explained to the Appellant that a prison term was still open, the remand order itself must have led the Appellant to realize that a prison term was not out of the question.

30.  Therefore, in the circumstances of this case, I would not allow the appeal based on this ground.

CONCLUSION

31.  As set out above, the appeal is successful.  In respect of each of the offences to which the Appellant pleaded guilty, I would substitute a community service order of 240 hours for the term of 2 months’ imprisonment.  The CSO orders are to run concurrently.

32.  I have confirmed with the Appellant that he is willing to perform the service and I so order.  I have also confirmed with Mr Plowman whether there are any matters or significant changes concerning the Appellant which would require an updated CSO report to be prepared.  Mr Plowman’s answer to that was in the negative.  Therefore, in making this order, I place reliance on the existing CSO report which was before the magistrate.