HKSAR v. LEE WAI PING

CACC 27/2022

[2022] HKCA 1640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 27 OF 2022

(ON APPEAL FROM DCCC NO 539 OF 2021)

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J U D G M E N T

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1.  This is an application by the applicant for leave to appeal against his sentence of 42 months’ imprisonment and disqualification from driving for a period of 6 years.

2.  On 6 January 2022, he appeared before District Judge Isaac Tam and pleaded guilty to dangerous driving (Charge 1); driving a motor vehicle without proper control under the influence of specified illicit drugs (Charge 2); driving while disqualified (Charge 3)  using a motor vehicle without third-party insurance (Charge 4); possession of a dangerous drug (Charge 5); possession of dangerous drugs (Charge 6); and possession of arms without a licence (Charge 7).

The brief facts

3.  At about 11:55 am on 6.11.2020, police officers were conducting Automatic Number Plate Recognition (ANPR)  in a police vehicle along the first lane of Tuen Mun Road connecting Tsuen Wan Road (towards Kowloon).  A private vehicle, GE1438, traveling in the second lane, was picked up by the ANPR system as belonging to the applicant who had been disqualified from driving.  It was later confirmed that the applicant was the vehicle’s driver at the time.  He also had a passenger in the vehicle.

4.  When the police ordered the applicant to stop the vehicle at the hatched area between the first and second lanes on Tsuen Wan Road (Southbound)  near Tsuen Tsing Interchange, he slowed down to about 20 km/h to stop but suddenly swerved to the right and accelerated to about 100 km/h along Tsuen Wan Road.  The police gave chase, repeatedly requesting the applicant to stop the vehicle but he failed to do so. 

5.  During the pursuit by the police, the applicant overtook other vehicles at around 120 km/h by switching lanes back and forth on multiple occasions.  After passing Tsuen Tsing Interchange, Tsuen Wan Road (Southbound), which has two lanes and double white lines on the road; the line nearer to the right lane is continuous while the line nearer to the left lane is broken, indicating that switching lanes from left to the right was permissible but not vice versa.  The speed limit for this stretch of the road is 70 km/h.

6.  Eventually, the applicant turned left into Hing Fong Road (Eastbound), Kwai Chung and approached the junction with Kwai Fuk Road.  Hing Fong Road (Eastbound)  has six lanes right before the intersection.  The second lane is for traffic turning left, and the third is for traffic going straight.  There is a hatched area between the second and third lanes.  At the time, the applicant was traveling along the third lane of Hing Fong Road (Eastbound)  and the relevant traffic signal on the third lane was red.  Another vehicle stopped in front of the junction in the third lane.  The applicant did not stop but overtook the vehicle on its left side by entering the hatched area.  As a result, the nearside front of the vehicle was hit by the applicant’s vehicle.  The applicant then traveled against the red light and crossed the junction where it subsequently stopped on Hing Fong Road.  The applicant alighted from the vehicle and fled (Charge 1).

7.  When the police officers shortly apprehended the applicant he was found to be under the influence of illicit drugs.  He had traces of cocaine, ketamine and methamphetamine in his blood sample (Charge 2).  He had been disqualified from holding a driving licence for 6 months from 6 October 2020 in one case and 12 months from 21 October 2020 in another case (Charge 3).  He was also driving the vehicle without third-party insurance (Charge 4). 

8.  The police officers found in the applicant’s possession 0.53 grammes of a solid containing 0.46 grammes of ketamine (Charge 5)  and 0.16 grammes of a solid containing 0.14 grammes of cocaine, 2.46 grammes of a solid containing 2.12 grammes of ketamine, 0.05 grammes of a crystalline solid containing methamphetamine hydrochloride and 0.06 grammes of a solid containing ketamine and methamphetamine (Charge 6).  The police officers also found in the applicant’s possession one can of pepper spray without a license (Charge 7).

The sentencing of the applicant

9.  Other than his timely plea of guilty to the charges, no additional meaningful mitigation was advanced on his behalf.  He had seven previous criminal convictions, for trafficking in dangerous drugs and three related to driving or using a motor vehicle, including one for driving under the influence of alcohol.  He also had nine other road traffic convictions, including two for careless driving and two for using a vehicle without third-party insurance.

10.  In sentencing the applicant, the judge reduced the sentence on each charge by one third for his plea of guilty, which was the only reduction he was entitled to in the circumstances of the case.  He arrived at a sentence on Charge 1 of 28 months’ imprisonment and disqualified the applicant from driving for period of 9 months; Charge 2 of 16 months’ imprisonment and disqualified him from driving period of 5 years and after that to attend a driving improvement course; Charge 3 of 6 months’ imprisonment and disqualified from driving period of 12 months; Charge 4 of 6 months’ imprisonment and disqualified from driving for a period of 18 months; Charge 5 of 4 months’ imprisonment; Charge 6 of 10 months’ imprisonment; and Charge 7 of 4 months’ imprisonment.  He took into account that the offences occurred on the same day.  He noted that the varying degree of seriousness with the traffic offences, which were distinct from the possession of dangerous drugs.  In applying the totality principle, he ordered that the sentences on Charges 1 and 2 to run concurrently (Group A); the sentences on Charges 3 and 4 to run concurrently (Group B); and the sentences on Charges 5 and 6 to run concurrently (Group C).  He arrived at an aggregate sentence of 42 months’ imprisonment by ordering that 4 months of Group B, 8 months of Group C, and 2 months of the sentence on Charge 7 to run consecutively to each other and the total sentences of 14 months to run consecutively to the concurrent sentence of 28 months of Group A. 

11.  The judge ordered that the disqualification orders under Charges 1 and 2 run concurrently and consecutively with the disqualification order under Charge 3, which resulted in an aggregate disqualification period of 6 years; that the disqualification period of 6 years not to start to run until the applicant had finished serving the term of imprisonment imposed on him and any other term of imprisonment which he might be undergoing; that the disqualification order of 18 months under Charge 4 starts to run separately from the date of conviction (6 January 2022); and that the applicant to attend and complete at his own cost a driving improvement course within the last 3 months of the overall disqualification period.

The appeal against sentence

12.  The applicant complains that the overall sentence of 42 months’ imprisonment was excessive.  He contends that the aggregate disqualification order of 6 years was neither fair nor appropriate and constituted double punishment.

13.  The respondent submits that the overall sentence was appropriate given the different offences committed by the applicant and the level of seriousness involved in each one.  It is submitted that the consequential disqualification orders were mandatory as required under the Road Traffic Ordinance, Cap 374.

Discussion

14.  The judge was correct to view this case as extremely serious, involving the applicant in a high-speed police chase while under the influence of drugs and dangerously weaving in and out of traffic against road signs and a traffic signal.  By his dangerous driving and the personal circumstances in which he was driving his vehicle under the influence of drugs and subject to disqualification from driving, he posed a serious risk to life and property.  As it transpired, he eventually collided with a stationary vehicle.  The applicant’s dangerous driving was further aggravated by the fact that he was seeking to avoid apprehension by the police, ignoring their orders to stop his vehicle during the pursuit. 

15.  The overall term of imprisonment of 42 months was not excessive in light of the various offences committed by the applicant and the serious levels of aggravation that accompanied the applicant’s offending.  For the primary offence of Charge 1, the judge adopted a starting point of 3 years and 6 months’ imprisonment which he reduced by one third for the applicant’s guilty plea to 28 months’ imprisonment.  Bearing in mind the other terms of imprisonment for the other offences, particularly driving while under the influence of illicit drugs and disqualified from driving, and the application of the totality principle, it cannot be said that the aggregate sentence of 42 months’ imprisonment was not appropriate in the circumstances of this case.  The judge correctly assessed the gravity of the offending in respect of the individual offences as well as the totality of the and then appropriately adjusted the sentences to arrive at the resultant penalty.  See HKSAR v Chan Chi Man[1].

16.  The applicant also complains about the disqualification period of 6 years.  Disqualification from driving is not double punishment but part of the penalty imposed by the legislature on persons who breach the traffic laws.  The applicant does not complain about the requirement that he has to attend a driving improvement course, he contends the disqualification period was manifestly excessive in the circumstances. 

17.  The judge ordered that the 9 months disqualification period under Charge 1 to run concurrently with the 5 years disqualification period under Charge 2 and to run consecutively to the 12 months disqualification period under Charge 3.  The 18 months disqualification period under Charge 4 to commence from the date of conviction, which means it will have no actual effect on the applicant because it will run during his prison sentence of 42 months’ imprisonment.  The 5 years disqualification period under Charge 2 is mandatory: section 39J(3)  of the Road Traffic Ordinance.  The 12 months disqualification period under Charge 3 is also mandatory: section 44(2)(a)  of the Road Traffic Ordinance. 

18.  The judge imposed the mandatory disqualification periods having satisfied himself that there were no special reasons that the applicant be disqualified for a shorter period or that he not be disqualified at all: HKSAR v Ko Yun Sang[2]. It is further stipulated in respect of Charge 3 under section 44(3)  that such period of disqualification shall be in addition to any other period of disqualification ordered under any other provision of the Road Traffic Ordinance.  The judge then appropriately ordered that the disqualification period under Charge 3 was additional to the disqualification period under Charge 2.

19.  In respect of when the disqualification orders took effect, the judge explained that the case involved a second and third conviction (Charges 1 and 2), which were relevant scheduled offences and because the applicant was a repeat offender, having a previous conviction for drink driving under section 39A offence in 2020, he ordered that the disqualification periods under Charges 1, 2 and 3 were not to start to run until the applicant “has finished serving the term of imprisonment imposed herein and any other term of imprisonment which he might be undergoing at the time he finishes serving the first-mentioned term.”[3]  The start of the disqualification periods was made in accordance with section 69A of the Road Traffic Ordinance. As explained in HKSAR v Wong Mun Ming[4], this section only applies to recidivists and the effect of it is to compel the court making the disqualification order to further order that it will not commence to run until after the expiry of any prison sentence imposed on the offender unless the court finds there are special reasons for not so ordering: section 69A(2).

20.  It follows from this analysis that the sentence imposed by the judge was just and appropriate both in terms of the prison sentence and the disqualification period.

Conclusion

21.  For the foregoing reasons, I refuse the applicant leave to appeal against his sentence.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1]   HKSAR v Chan Chi Man [2019] 2 HKLRD 737.

[2]   HKSAR v Ko Yun Sang [2022] 3 HKLRD 9.

[3]   Appeal Bundle, 41L-P. 

[4]   HKSAR v Wong Mun Ming [2016] 1 HKLRD 1057, at [37].