HKSAR v. WONG WAI LUN

CACC 55/2023 [2023] HKCA 1292

On appeal from [2023] HKDC 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 55 OF 2023

(ON APPEAL FROM DCCC NO 338 OF 2022)

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J U D G M E N T

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1.  Having been convicted on his own plea of trafficking and possession of a dangerous drug (Charges 1 and 2), driving whilst disqualified (Charge 3) and using a motor vehicle without third-party insurance (Charge 4), the applicant, in a notice dated 13 March 2023 applied for leave to appeal against his sentence of a total term of 33 months’ imprisonment and disqualification from driving of 3 years on Charge 3 and 2 years on Charge 4, which the judge ordered to be served concurrently.

2.  In a notice dated 27 April 2023, the applicant partially abandoned his application for leave to appeal against sentence, stating he wished to still appeal the order of disqualification from driving. In a letter dated 2 June 2023, the applicant articulated his ground of appeal against the disqualification order.  He argued that the drug offences were unconnected with the traffic offences, and questioned why he received a disqualification order in respect of the traffic offences.  He submitted he was a first-time offender, and had his traffic offences been dealt with in the Magistrate’s Court, he would have received a lesser period of disqualification.  He said in his letter that he was due to be discharged from prison on 29 June 2023 and would file additional documents, including relevant authorities, for the appeal “immediately after” he was discharged.

3.  A direction and a notice of today’s hearing had been sent to the applicant by registered post on 24 July and 8 August 2023 but they were returned as unclaimed mail.  An applicant has the right to be present at the hearing of an application for leave to appeal unless, pursuant to section 83U of the Criminal Procedure Ordinance (Cap 221), the court considers it necessary “in the interests of justice or public order or security”, to order otherwise.  I have decided to deal with the leave application in the applicant’s absence in light of the nature of the application and the circumstances of the case.  Furthermore, the applicant can renew the leave application if he feels aggrieved by this decision.

4.  Ms Cordelia Yeung, for the respondent, has filed a very comprehensive submission in response to the applicant’s complaint regarding the disqualification order.  She notes that the applicant has two previous criminal convictions for trafficking in a dangerous drug, for which he was sentenced to 4 years’ imprisonment in 2012, and dangerous driving, for which he was fined and disqualified for driving for 6 months in 2021.  He also has 14 previous traffic convictions.  She further notes that the applicant had been remanded in custody since his arrest on 28 August 2021 and the period of disqualification of 3 years took effect from the date of sentencing on 28 February 2023, which would run until on or about 28 February 2026.  This, in effect, means that the applicant would be disqualified from driving for a period of about 1 year and 9 months after his release from prison.

5.  As a judge rightly pointed out, driving whilst disqualified, and without third-party insurance are serious offences.  The judge made his order of disqualification for 3 years for the offence of driving whilst disqualified pursuant to section 44(2)(a) of the Road Traffic Ordinance (Cap 374) and 2 years for the offence of driving without third-party insurance pursuant to section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap 272). 

6.  I should mention that the judge appears to have incorrectly referred to section 44(2)(b) when making the disqualification order for 3 years in respect of Charge 3.  Section 44(2) empowers a court or magistrate to order a period of disqualification of (a) not less than 12 months for a first conviction; and (b) not less than 3 years for a second or subsequent conviction.  Initially, the judge appears to have considered that Charge 3 was the applicant’s second offence for driving whilst disqualified because of the previous conviction of dangerous driving for which he was disqualified from driving for a period of 6 months.  However, this was clarified with the judge, and he understood that he should determine the period of disqualification on the basis that it was the applicant’s first conviction for driving whilst disqualified[1].

7.  I can find no fault with the judge’s disqualification orders for the offences he committed, particularly in respect of Charge 3 where the circumstances of the case warranted a disqualification period well in excess of 12 months.  Despite the applicant’s contention that the drug offences and the driving whilst disqualified were unconnected, they clearly were, and this influenced the judge in imposing substantial disqualification periods.  I am satisfied that the disqualification periods for each offence were in accordance with the relevant statutory provisions and within the judge’s discretion.

8.  The application for leave to appeal against the disqualification orders is refused.

9.  I note that the applicant was discharged from custody on 29 June 2023, and on that basis, I have not given a warning about loss of time.

[1]   See Appeal Bundle, p 17Q-18J.