HKSAR v. CHAN CHI MAN

CACC 262/2018

[2019] HKCA 392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 262 OF 2018

(ON APPEAL FROM DCCC NO 965 OF 2017)

________________________

________________________

___________________________________________

REASONS FOR JUDGMENT

___________________________________________

Hon M Poon J (giving the reasons for judgment of the court):

1.  The applicant pleaded guilty on 11 June 2018 before HH Judge Casewell (“the judge”) to dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374 (Charge 2); driving while disqualified, contrary to section 12(2)(b) of the Road Traffic (Driving‑Offence Points) Ordinance, Cap 375 (Charge 3); and using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (Charge 4). The applicant was sentenced to an overall sentence of 20 months’ imprisonment and disqualified from driving for a period of 4 years. Charge 1 was the offence of driving in excess of the speed limit which was left on the court file and marked not to be proceeded with without leave of the court.

2.  On 3 September 2018, the applicant filed a notice of application for leave to appeal against sentence out of time.  That was heard and dismissed by single judge on 4 January 2019.  The applicant filed a Form XIII to renew his application which we heard on 28 March 2019.  Leave was refused and we dismissed the application.  We indicated that we would hand down our reasons in due course.  That we do now.

Facts admitted by the applicant

3.  On 27 April 2015, the applicant, a taxi driver, had on board a passenger when the taxi was detected to be speeding at 97 km/h which far exceeded the speed limit of 80 km/h for that stretch of the motorway.  The applicant, having been intercepted by a police officer who gave chase on a motorcycle, suddenly accelerated and drove off.  The police officer on the motorcycle drove after the applicant and during the pursuit, the taxi was observed to be weaving in and out of traffic at a speed that was totally inappropriate for the road conditions.  When the applicant came to a set of traffic lights where motor vehicles were stationary waiting for the lights to change, he was unable to brake in time and went between the lanes of traffic, causing damage to about eight vehicles and injuring some of the occupants of the vehicles as well as his passenger.  It turned out that the applicant was disqualified by reason of Driving‑Offence Points Ordinance and was not covered by third party insurance at the material time.

Sentencing

4.  The judge observed that the driving of the applicant was “reckless in the extreme”, putting the lives of other persons at risk and falling into the category of the worst case of its kind.  He noted that the maximum sentence for the dangerous driving charge was 3 years’ imprisonment with a term of compulsory disqualification from driving.  He took a starting point of 30 months, 3 months and 6 months respectively for the 3 charges and gave a one‑third discount for the applicant’s plea, sentencing him to 20 months, 2 months and 4 months. He imposed a disqualification order for a period of 4 years and 18 months for charges 2 and 4 and ordered the applicant to undergo a driving improvement course within the last three months of the disqualification period. The terms of imprisonment and the periods of disqualification were all ordered to run concurrently.

Grounds of appeal

5.  The application was filed 7 weeks out of time.  The applicant complained that his term of imprisonment and period of disqualification were excessive when compared with other cases either similar to or more serious than his.  He also complained that the judge had not paid full regard to his personal circumstance.  He submitted that a lengthy disqualification would cause hardship to his family of three young children as he would have to pay compensation to the other drivers involved in this accident.  It was also submitted that a failure to renew his driving licence within three years from its expiry in May 2018 would cause his licence to be revoked and he could only resume driving public transport vehicles three years after he obtained a fresh driving licence upon passing the retest.

Respondent’s reply

6.  Ms Khubchandani, Public Prosecutor, for the respondent opposed the out‑of‑time application as the applicant had advanced no valid reasons to explain his delay.

7.  It was submitted that this case fell into the worst or most serious category which warranted a starting point of near the maximum prescribed:

(1)   failing to comply with police instruction to stop and park but sped off on approach of police motorcyclist;

(2)   excessive speed and deliberate attempts to breach road signs/markings during the pursuit affecting other road users;

(3)   at all the material time the applicant was carrying a passenger on board; and

(4)   failing to brake in time to cater for the traffic conditioning, colliding with nine stationary vehicles, causing damages and injuries.

8.  Ms Khubchandani submitted that in view of the applicant’s poor traffic record and his manner of driving in the present case, the term of disqualification ordered was justified and appropriate.

Discussion

9.  The Court of Appeal in HKSAR v Medina and another, CACC 296/2007, at paragraph 12 stated:

“In considering whether leave should be given to appeal out of time, we look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the application for extension of time. We would also look at the ground of the proposed appeal to see whether; by refusing leave to appeal, we were not shutting out a substantial and plainly arguable ground of appeal. Substantial grounds must be shown for the delay before we would grant indulgence, and the longer the delay, the more onerous is the duty of the applicant. . . . ”

10.  The reason afforded by the applicant was that whilst he initially accepted the sentence, he changed his mind after discussion with other inmates.  He requested that the term of imprisonment and disqualification be reduced to enable him to renew his driving licence and make a living out of it.

11.  We did not accept that his explanation constituted substantial grounds.  We then turned to examine the merits of the grounds for the appeal.

12.  The applicant had been a taxi driver since 2007.  He had 16 traffic convictions and fixed penalty payment records.  He had also received periods of disqualification because of his traffic violations and attended a driving improvement course before the present offence.  At the time of the offence he was driving his taxi whilst disqualified from driving.  After committing the present offences on 27 April 2015, he jumped police bail from October 2015 to 1 September 2017.  This shows that the applicant has a blatant disregard of the law.

13.  The applicant tried to draw comparison with a number of cases prosecuted in the Magistracies and the District Court.  We must say that these were not of assistance to us as the facts of each case was on its own.  The sentencing principle in relation to dangerous driving cases is clearly stipulated in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 at p 668 F‑G:

“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 pedestrian) or with a degree of recklessness.”

14.  It would seem, according to that passage, either one could be regarded as an aggravating factor but we observed that the present case contained all those features.  Although the applicant here was not driving under the influence of drugs or alcohol, the facts shared certain similarities to that of HKSAR v Pang Ho Yin Patrick, CACC 283/2013, 15 April 2014, unreported.  The applicant in that case also weaved in and out of traffic, disobeyed traffic signs and affected other vehicles whilst driving at high speed to evade police apprehension, resulting in collision with stationary vehicles.  Taking into account that that applicant was driving under the influence of dangerous drug which brought the maximum sentence under section 37 of the Road Traffic Ordinance, Cap 374 from 3 years to 4½ years, the Court of Appeal opined that the starting of point 3 years for the dangerous driving charge was not manifestly excessive.

15.  The applicant was driving his taxi whilst disqualified from driving, and thus without third party insurance.  He drove at high speed in a wanton and erratic manner trying to make good his escape.  He placed the lives and property of others in peril.  His driving resulted in a series of collisions with other vehicles, caused injuries to other people and damage to property.

16.  This case fell into the category of the worst case of its kind and warranted severe punishment.  It was noted that the Court of Appeal had commented in Ko Wai Kit at paragraph 27 on the inadequacy of the maximum term of 3 years’ imprisonment for the offence of dangerous driving, more than 17 years had elapsed and yet the statutory maximum remained unchanged, unless with the aggravation of drinks and drugs.

17.  In HKSAR v Jim Chong Shing, CACC 186/2003, the offences were committed at night when the roads were not busy and the actual damage was lesser than Ko Wai Kit, supra, the Court of Appeal nonetheless took a similarly serious view given that “the applicant demonstrated exactly the same disregard for the safety of other road users and the sanctity of other people’s property as the offender in Ko Wai Kit did”.  A starting point of 2½ years was considered appropriate.

18.  We are of the view that the starting point of 30 months in the circumstances of the present case was not manifestly excessive or wrong in principle.

19.  Turning to the question of disqualification, the Court of Appeal stated in see Secretary for Justice v Hung Ling Kwok [2010] 4 HKLRD 365 at paragraphs 11 and 14:

“11. The main purpose of disqualification is ‘forward looking and preventive rather than backward looking and punitive’. It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads. The risk represented by the offender is reflected in the level of culpability which attaches to his driving, so that matters relevant to fixing the length of the driving disqualification are more or less the same as those factors relevant to determining the term of imprisonment. . . .

14.   . . . when fixing the length of the driving disqualification, according to sentencing principles, a sentence passed by the court must have actual effect.  Since the period of disqualification and the term of imprisonment are to run concurrently, if the period of disqualification is of the same length as or shorted than the term of imprisonment, then the period of disqualification may be devoid of any real significance.  This is because the defendant can resume driving soon after he served his sentence of imprisonment.  This is against the basic principle of sentencing.  . . . ”

20.   If the disqualification period is too short to be simply subsumed into his prison terms, that will serve no actual purpose or effect.  The appalling driving record and the manner of his driving in the present case did not just show a total disregard of the law but also disregard of the lives and properties of others.  As a menace to the other road users, he is best kept off the road and from being a driver of public transport vehicles.  Whilst we sympathize with his predicament after his discharge, he is clearly the author of such himself.

21.   Leave to appeal against sentence out of time is refused and his appeal is dismissed accordingly.

Loss of time

22.   In the Single Judge judgment of Zervos JA, the applicant was informed of the court’s power to order loss of time.  He was further reminded of it in the Form XII (Notice of Order of the Single Judge) and the Form XIII (Notice of Renewal of Application after Refusal by the Single Judge).

23.   The applicant was invited to address us on whether loss of time should be ordered.  He had nothing to say.  The application for leave to appeal against sentence was totally devoid of merits. Although Zervos JA had given detailed reasons explaining the lack of merit in his application and warned him against the risk of a loss of time order being made against him should he renew his application, the applicant still insisted in making this application.  We find this an appropriate case to make a loss of time order under section 83W(1).

24.   We therefore ordered a loss of time of 8 weeks.