HKSAR v. FONG LEUNG, LAWRENCE

HCMA 317/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 317 OF 2001

(ON APPEAL FROM NKCC 149/2001)

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J U D G M E N T

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1. This was an appeal against the sentences imposed upon the appellant at the North Kowloon Magistrates Court on 22 March of this year in respect of an offence of failing to stop after an accident contrary to sections 56(1)(b) and 56(5) of Cap. 374 and of an offence of driving a motor vehicle with the proportion of alcohol in his breath exceeding the prescribed limit contrary to section 38A(1) of that ordinance.

2. The appellant was convicted after trial of the first of these offences and he was sentenced to a term of 1 month in prison and he pleaded guilty to the second and was sentenced to 2 months imprisonment and disqualified from driving for 2 years. The sentences of imprisonment were ordered to run concurrently.

3. After hearing counsel for the appellant and the respondent I allowed the appeal to the extent that I set aside the sentences of imprisonment and, in respect of the first offence, I substituted a fine of $5,000 and, in respect of the second offence, I substituted a fine of $7,000 and I reduced the term of disqualification from 2 years to 18 months. I said that I would give my reasons at a later date. These are my reasons.

4. On 5 December 2000 at about 11.00 p.m. the appellant drove his private jeep type vehicle along Hi Lung Lane in Kowloon towards a junction with Arthur Street which is a one way street running from north to south. Parked at that junction in Arthur street was another private vehicle and as the appellant turned right into Arthur Street his jeep collided with the front offside of that other vehicle causing some damage.

5. I might just add here that I have seen photographs of the vehicles concerned and of the scene of the accident. Arthur Street is extremely narrow and was made the more so by the fact of the parked car.

6. After the accident the appellant reversed his jeep before driving off pursued by two witnesses who were on foot. They caught up with the appellant when he was waiting in traffic in Wing Sing Lane to turn into Nathan Road and one of them opened the appellant's door and remonstrated with him. The appellant drove off again and, as he did so, his car door injured the other man on the forehead.

7. The appellant had to stop again because of traffic in Nathan Road and on this occasion the witnesses and others caught up with him once more and this time restrained him until the police arrived and arrested him. A subsequent evidential breath test taken nearly 2 hours after the initial collision gave a reading of 98 micrograms per 100 millilitres of breath - the permitted limit being 22 micrograms.

8. In consequence of these events the appellant was charged with the 2 offences in respect of which he has appealed and also with an offence of careless driving (arising out of the collision); with an offence of dangerous driving and another offence of 'failing to stop' arising out of his conduct in Wing Sing Lane.

9. He pleaded guilty to the offence of careless driving and he was fined $2,000; he was convicted after trial of dangerous driving and he was fined $1,000 and disqualified from driving for a period of 6 months (to run concurrently with the 2 year period of disqualification imposed for the alcohol offence); and he was acquitted of the second 'failing to stop' offence.

10. In his reasons for sentence the Learned Magistrate said this :

"For the purposes of sentencing I rejected any suggestion that the appellant had ever been in fear of sustaining bodily injury from PW1 or his companions until he had stopped in Nathan Road. In any event there was no suggestion that he had fled the scene because of such fear. His defence to the driving away charge had been that he had not been aware of anyone in the vicinity and had left intending to make an immediate report at Tsimshatsui police station.

I did not believe this. Is was apparent that the appellant had fled the scene to avoid involvement with the police, knowing as he must have done that he then stood at risk of losing his licence to drive because of his inebriation.

The fact that he had neither locked his doors nor closed his windows even after he became aware of PW1's pursuit in Wing Sing Lane showed that his protestation of fear at that stage was of recent invention.

I acquitted the appellant on the second charge of failing to stop because the evidence was insufficient to prove that he had been aware that PW1 had sustained injury. I did however convict him of dangerous driving on the facts relating to the incident in Wing Sing Lane when in his anxiety to avoid police involvement he had again driven off without any regard for PW1's safety.

When sentencing the appellant I considered all the circumstances of the case. When imposing concurrent prison terms for the Drink charge and the failing to stop charge I took account not only of the fact that his breath showed a proportion of alcohol 4.45 times the permitted level, even 2 hours after the collision, but also that he had rammed into a parked car causing extensive damage due, I felt solely to his inability to control his vehicle due to drink. That he had then driven off to avoid prosecution when he must have realised that he was a grave and continuing danger to other road users and to any pedestrians that there might be was, to my mind, a gravely aggravating factor.

Although the appellant had pleaded guilty on his trial date to the drink charge and to careless driving it did not appear to be as much an indication of his remorse as a practical appreciation of the strength of the prosecution case in those respects. I had no doubt that he realized the significance to sentence of the failing to stop charge and thus had denied it regardless of the merits. This was of course his right and I did not penalise him for executing that right but his testimony in support was, I found, riven with deliberate lies which detracted from any leniency that his earlier plea would otherwise have attracted.

Having heard all the evidence, having considered what was said on the appellant's behalf in mitigation and having considered other case law on sentencing (of which Mr Yip kindly supplied copies when applying for bail pending this appeal) I believed that an immediate custodial sentence was inevitable. I also believed that the appellant had shown by his actions and his attitude that night that he was not a fit person to hold a driving licence and that he was and would continue to be a danger to himself and others if permitted to drive.

Overall I felt that all the circumstances merited a starting point for sentence of 3 months imprisonment reduced to 2 months after making an allowance for his initial plea and clear criminal record.

I felt it appropriate to make the sentences concurrent again taking account of the totality and sentenced the appellant to 2 months imprisonment with a 2 year disqualification in respect of charge 5 and a 1 month concurrent prison term for charge 2."

11. The appellant's grounds of appeal advanced by Mr Jenkyn Jones on his behalf were as follows :

"The sentence was wrong in principle and manifestly excessive in that the Learned Magistrate

(1) adopted too high a starting point in sentencing the Appellant.

(2) attached undue weight to the nature of the accident as an aggravating feature of the offence and allowed himself to be unduly influenced by speculation as to possible rather than actual consequences in exacerbation of sentence.

(3) did not pay sufficient weight to the mitigation advanced, in particular the clear record of the Defendant and the dire consequences of imprisonment.

(4) effectively penalised the Defendant for the nature of his defence in exacerbation of sentence.

(5) did not canvass other sentencing options, especially in view of the fact that the Defendant was a first time offender and has never been to prison before.

(6) in dealing with sentence the Learned Magistrate was both hurried and tired as indicated by the transcript, thereby inhibiting defence counsel from developing mitigation fully and further depriving the Appellant of the benefit of a full and careful consideration of all issues favourable to a suitable sentence given his personal circumstances and the circumstances of the case."

12. In my judgment there is merit in the first and second of these grounds given the authorities to which I was referred during the hearing of this appeal.

13. Those authorities, for reference only, are as follows :

R v CHOW TIN JACK HCMA 61 of 1997;

HKSAR v HO HO CHUEN HCMA 63 of 1998, [1998] 2 HKC 544;

HKSAR v CHEUNG YIK WAH HCMA 162 of 1999;

HKSAR v LO SHUN KWONG ALEXANDER [1999] 1 HKC 134;

HKSAR v SZETO KAU SUN [1999] 3 HKC 613; and

HKSAR v WONG SAU KWAN HCMA 53 of 2001.

14. All that I would say about those authorities (and it is not clear to me whether they - or any of them were considered by the Learned Magistrate either prior to or after sentence was imposed when a review was being sought) is that whilst of course every case must depend upon its own facts those cases make it clear that within certain factual parameters there is a settled band or range of sentence which ought in justice and in the interests of consistency to be followed and given the facts in the present case coupled with the mitigation a sentence of imprisonment was not appropriate let alone 'inevitable'.

15. There is also in my view, having read the relevant part of the transcript, merit in grounds 3, 5 and 6 considered either separately or together although I should say for completeness that the appellant did have one previous conviction for careless driving in 1995.

16. I do not think that it is helpful to recite here that part of the transcript which covers mitigation and pronouncement of sentence. Suffice it say that it is quite apparent to me from a reading of it that there is at least a perception of a 'rush to judgment' without a full consideration, to which the appellant was entitled, of the sentencing options and without indicating to counsel for the appellant what he (the Learned Magistrate) had in mind. It was for these reasons that I allowed the appeal against sentence to the extent that I have indicated.