HKSAR v. FUNG KA WAI ROGER

CACC 81/2024 [2024] HKCA 1020

On appeal from [2024] HKDC 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 81 OF 2024

(ON APPEAL FROM DCCC NO 102 OF 2023)

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J U D G M E N T

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1.  The applicant pleaded guilty to the following offences before District Court Judge A N Tse Ching (the Judge) and was sentenced as follows:

Charge 1:  Causing grievous bodily harm by dangerous driving, contrary to section 36A(1) of the Road Traffic Ordinance, Cap 374 (RTO) to 51.5 months’ imprisonment;

Charge 2:  Failing to stop after accident whereby person injuries were caused to other persons, contrary to section 56(1)(a) and (5) of the RTO to 9.6 months’ imprisonment;

Charge 3:  Dangerous driving, contrary to section 37(1) of the RTO to 22.8 months’ imprisonment; and

Charge 4:  Failing to stop after accident whereby damage was caused to another vehicle, contrary to section 56(1)(b) and (5) of the RTO to 9.6 months’ imprisonment.

2.  The sentences were ordered to run concurrently, resulting in an overall sentence of 51.5 months’ imprisonment. It would have been preferable had the Judge sentenced the applicant according to the year, month or day as the case may be, rather than in months to a decimal point. The general practice when passing a substantial sentence after discounts have been made is to round off the term and state it in years and/or months. The sentence passed was 4 years, 3 months and 15 days (the latter being 0.5 of one month).

3.  In respect of Charges 1 and 3, the Judge ordered that the applicant be disqualified from driving for 4 years and 1 year respectively, or until he passed the test of competence to drive, whichever was the latter. She also ordered for the disqualification periods to run consecutively, resulting in a total disqualification period of 5 years.

4.  The applicant acting in person seeks leave to appeal against sentence on the ground that the term of imprisonment is excessive. The respondent concedes that the order for consecutive disqualification periods was wrongly imposed.

The admitted facts

5.  The facts outlined to the Judge and admitted by the applicant were as follows.

6.  On the evening of 13 April 2022, the applicant had a celebration dinner with his colleagues (including Wan Kong Leung (PW1), Ng Yiu Wah (PW2), Li Fen (PW3), Tang Chun Pong (PW4), and Pu Chun Yu (PW5)) at a hot pot restaurant located at Tak Hing Street, Yau Ma Tei (the premises). The applicant’s colleagues had been there since approximately 7:30 pm, having consumed significant amounts of alcohol, while the applicant arrived at approximately 11:40 pm.

Accident 1 (Charges 1 and 2)

7.  At about 1:13 am on 14 April 2022, PW3 and PW5 left the premises and stood outside. At about 1:15 am, the applicant and PW1 also left the premises and got into the applicant’s private car (the car), which was parked outside. About a minute later, the remaining colleagues left the premises and walked down Tak Hing Street away from the car. About 30 seconds later, the applicant manoeuvred his car out of the parking space, and accelerated along Tak Hing Street. The car then swerved to the right onto the pavement, striking PW3 and PW4 from behind, and then swerved back onto the roadway, striking PW2.

8.  These two collisions caused grievous bodily harm to PW2 and PW3. PW2’s injuries included a fractured skull, bleeding in his brain and loss of 6 teeth. He was hospitalised until 19 April 2022.[1] PW3’s injuries included a deformed and fractured right ankle and left fibular shaft fracture.[2]

9.  PW4 suffered minor injuries and was not hospitalised. He was given 4 days of sick leave.[3]

10.  The applicant did not stop at the scene and drove away after the two collisions.

Accident 2 (Charges 3 and 4)

11.  At about 1:20 am, at the junction of Austin Road and Nathan Road, which was approximately 1.3 km from the location of Accident 1, the applicant drove his car at speed into the rear of a stationary taxi that had stopped at the red traffic lights. The driver of the taxi (PW9) was hospitalised with chest pains and discharged on the same day.

12.  The car was badly damaged. The applicant did not stop, and accelerated away from the scene of the accident.

Accident 3

13.  The car was discovered shortly after Accident 2 at Austin Road (eastbound) near Chatham Road South, significantly damaged, stationary and sideways on the road next to two damaged trees and a damaged signpost.

14.  PW1, who was a passenger in the car, suffered injuries, including several broken ribs.[4] He managed to alight from the car and notify the police. PW1 was found at the scene next to the applicant, who was unconscious. They were admitted to the hospital.

15.  A request by the police to the hospital medical staff for blood samples to be taken from the applicant was declined due to the applicant’s physical condition.

16.  At all material times, the relevant roads were in good condition and dry.

The mitigation

17.  The applicant was 41 years of age at the time of the offence. He was educated to Form 3 level. He was a construction worker, operating his own business, which he took over from his late father. He was single, lived with his six-year-old son and 68-year-old mother, and was the sole breadwinner and carer of the family.

18.  The applicant had a clear criminal record, but had a traffic record of careless driving about 20 years ago and a record of not complying with traffic signals and speeding.

The reasons for sentence

19.  The Judge referred to a number of authorities including Secretary for Justice v Poon Wing Kay [5], Secretary for Justice v Chu Wing Yin Christine [6] and the aggravating and mitigating factors set out in R v Cooksley and Ors [7].

20.  The Judge found that the incident demonstrated that the applicant embarked on a course of dangerous driving that was not the result of momentary inattention or error of judgement. No explanation was offered for the applicant’s behaviour, and the only irresistible inference was that his actions were deliberate.[8] She said the applicant’s conduct showed an utter and selfish disregard, if not contempt, for the safety and well-being of all who came into contact with his driving.[9]

21.  In Accident 1, the speed of the car was much higher than appropriate. The car travelling on the roadway suddenly swerved right onto the pavement and back onto the roadway, striking down the victims like “bowling pins” and causing very serious injuries. The applicant failed to stop and sped away.[10]

22.  In Accident 2, the traffic lights were red, and two taxis had stopped. The applicant failed to stop or slow down despite the red lights, and rammed into the rear of the second taxi, causing serious damage. For the second time within minutes, the applicant failed to stop after the accident and sped off.[11]

23.  The Judge found that the applicant’s conduct was persistent and deliberate. He deliberately took the risk of endangering people’s lives, and it was clear that he would not have stopped but for Accident 3.[12]

24.  The Judge concluded that the applicant’s driving fell within the worst category of its type and adopted a starting point of 6 years’ imprisonment on Charge 1; 12 months’ imprisonment on Charge 2; 3 years’ imprisonment on Charge 3; and 12 months’ imprisonment on Charge 4.

25.  As the applicant only indicated his guilty pleas shortly before the commencement of trial, the Judge gave him a 20% discount on his sentences. This was in accordance with HKSAR v Ngo Van Nam[13]. A further discount of 6 months was given on Charges 1 and 3 to account for the applicant’s injuries.

26.  The Judge ordered the sentences of all the charges to run concurrently as she had taken into account the overall circumstances of the case in assessing the starting point for Charge 1.

The applicant’s submission

27.  In his notice of appeal, the applicant complained that the sentence was excessive because sentences for other similar cases of causing death by dangerous driving were more lenient.

The respondent’s submission

The terms of imprisonment

28.  The respondent relies on the following sentencing principles set out in Chu Wing Yin Christine. The dominant factor to be considered for sentencing for the offence of causing grievous bodily harm by dangerous driving is the defendant’s culpability. This will involve two related assessments: first, the objective dangerousness of the defendant’s driving and second, his moral culpability.[14] There will be an overlap or intertwining of these two assessments, but both are concerned with addressing the dominant question of culpability.[15] Next to be considered is the harm and impact caused to the victim(s). However, there will be a difference in the harm and impact caused by a vehicle hitting one pedestrian and a vehicle ploughing into a row or group of pedestrians.[16]

29.  The respondent notes that the aggravating factors described in the authorities do not represent an exhaustive list, and the value to be placed on any particular factor will vary according to the circumstances of each case.[17] It is also not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. In some cases, the fact that only some aggravating factors exist, but not others, may still bring the case into a very serious category.[18]

30.  In the present case, Accident 1 took place right after the applicant manoeuvred the car out of the parking space when the applicant accelerated along the roadway and served onto the pavement. The applicant did not stop after hitting PW3 and PW4, but drove back onto the roadway and hit PW2. No explanation was offered for the applicant’s dangerous driving and the harm and impact he caused.

31.  It is submitted that the Judge correctly concluded that such conduct was not caused by momentary inattention or error of judgement, and that his actions must have been deliberate. It is argued that this was a clear case of the applicant showing selfish disregard for the safety and well-being of other road users, which was a major factor justifying a heavy sentence.[19]

32.  From the CCTV footage of Accident 1, at least nine pedestrians (including the victims) were walking along the pavement or roadway and were put at risk by the applicant’s driving.[20] Serious injuries were caused to several victims.[21]

33.  From the CCTV footage of Accident 2, the car did not slow down at all and rammed forcefully into the rear of the taxi. The applicant still drove the badly damaged car and left the scene, causing a further accident. The circumstances show a prolonged, persistent and deliberate course of very bad driving, which was an aggravating factor recognised in Cooksley [22]. As noted by the Judge, it was obvious that he would have continued his dangerous and appalling driving had he not been disabled by Accident 3.

34.  After both Accident 1 and Accident 2, the applicant failed to stop. The applicant, after striking down several victims in Accident 1, causing serious injuries, left them on the road not caring about their condition, and possibly suffering further harm due to delay in receiving medical attention. It is argued that this was also considered in Liu Kwok Chun to be an “extremely callous act”.[23] In Liu Kwok Chun, the starting point of 12 months’ imprisonment, the maximum sentence for the offence of failing to stop, and the order for it to run consecutive to the sentence on the dangerous driving charge was approved. Bearing in mind the Judge ordered concurrent sentences, it is submitted that her adoption of a higher starting point for Charge 1 was justified, taking into account as an aggravating factor the applicant’s failure to stop when assessing his culpability.[24]

35.  As the harm and impact caused to the victim(s) was only one of the factors to be considered (with culpability being the dominant factor) in sentencing, the fact that more lenient sentences have been imposed in cases of causing death by dangerous driving is of little aid to the applicant. In HKSAR v Pang Kun Wah [25], the driver reversed his vehicle multiple times, hitting two workers at relatively slow speeds, killing one and seriously injuring the other. Six years’ imprisonment was adopted as the starting point for the charge of causing grievous bodily harm by dangerous driving, and the application for leave to appeal against sentence was refused.

36.  Considering the facts of the case, including the aggravating factors, it is submitted by the respondent that the terms of imprisonment imposed by the Judge, while on the high side, were justified and neither wrong in principle nor manifestly excessive.

The consecutive disqualification periods

37.  The respondent submits that without express statutory provision to the contrary, a disqualification order (such as those imposed under section 36A or section 37) takes effect from the date it is made: Wong Mun Ming. [26]

38.  It is contended by the respondent that the order for consecutive disqualification periods appears to have been wrongly made because the period of disqualification should be longer than the prison term for it to have any real significance or meaningful effect.

39.  The respondent also submits that the Judge failed to make an order in the terms as provided by section 72A, which requires a court or magistrate to order a defendant to attend and complete a driving improvement course upon conviction of certain specified offences, including sections 36A and 37, unless there are special reasons.

Discussion

40.  I have set out how the Judge sentenced the applicant on each charge and arrived at the overall sentence of 51.5 months’ imprisonment. There is no need for me to go into any considerable detail of the Judge’s reasons for sentence, particularly her outline of the applicant’s appalling conduct in committing the offences, as this has been properly summarised by the respondent. This was clearly a very bad case, and the Judge was correct in finding that the applicant’s conduct was “persistent and deliberate” and that he put at risk the lives and safety of others”.

41.  The basis of the applicant’s complaint is that his overall sentence was excessive.

42.  It is, therefore, appropriate that I set out the maximum penalty for each charge. Charge 1 is 7 years’ imprisonment; Charges 2 and 4 are 12 months’ imprisonment; and Charge 3 is 3 years’ imprisonment. Guided by her characterisation of the applicant’s wrongdoing, the Judge adopted a starting point of 6 years’ imprisonment for Charge 1, which was close to the maximum of 7 years’ imprisonment; and the maximum penalty for each of Charges 2, 3 and 4.

43.  Whilst it appears that the starting points adopted by the Judge are high, she took into account Charge 2 as an aggravating factor in respect of Charge 1, which she considered on a global view was sufficiently substantial to reflect the overall culpability and harm of the applicant’s dangerous and reckless driving, and as a consequence made the rest of the sentences concurrent. The issue is whether the resultant sentence was excessive.

44.  There is a reasonable argument whether the starting points adopted by the Judge are justifiably high and that she should have approached her determination of the overall sentence by adjusting the sentences passed for each offence, applying the totality principle. The applicant relies on sentences passed in other cases concerning causing death by dangerous driving to support his submission that the starting point on Charge 1 was too high. However, these and other cases need to be considered in light of the maximum penalty of 7 years for the offence of causing grievous bodily harm by dangerous driving and the increase of the maximum penalty from 5 years to 10 years for the offence of causing death dangerous driving in 2008.

45.  As already noted, the Judge adopted the maximum term of imprisonment for Charges 2, 3 and 4 and close to the maximum for Charge 1, and passed an overall sentence based on the sentence she imposed on Charge 1, taking into account the failure to stop at the scene as an aggravating factor. It does raise for consideration what would be an appropriate starting point for each of the offences, particularly Charge 1, but this will depend on an assessment of the criminality involved, which in the case of Charge 1 was very serious. It may be that the resultant sentence after taking the suggested approach, will be much the same as the one passed by the Judge, but that will be a matter for the full court.

46.  Under section 69A of the RTO, it is provided by subsections (1) and (2) that if a court or magistrate convicts a person of a relevant scheduled offence, which is a second or subsequent conviction of such relevant scheduled offence, and sentences the person to undergo a term of imprisonment or detention, which is not suspended, and orders that the person be disqualified for a fixed period, the court or magistrate must direct the disqualification period is not to start to run until the person finishes serving the term of imprisonment or detention, unless there are special reasons not to make such a direction. These provisions do not apply to the offences in Charges 1 and 3 as they are not listed as a relevant scheduled offence.

47.  In HKSAR v Wong Mun Ming [27], it was noted by the Court of Appeal that:

“37. Before leaving the statutory framework there is another important provision that we should mention and that is s.69A of the Road Traffic Ordinance. This is a provision which only applies to recidivists[28] and the effect of s,69A(2) 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 that there exists special reasons for not so ordering. The consequence of this provision is that, absent special reasons, the operation of the disqualification order is deferred until the offender is released from prison. Thus the period spent in prison will not have the effect of reducing the period of disqualification the offender will have to undergo.

38. Such a provision is lacking from the regimes in ss.36 and 36A. Under those regimes the disqualification order takes effect from the date it is made and so, for example, a person against whom a 5-year disqualification order is made, if sentenced to 3 years’ imprisonment, will, in reality, have to undergo a period of disqualification of only two years from the date of his release from prison.[29]

39. Given the provisions of s.69A, it is clear that the legislature has made a deliberate decision to distinguish between first offenders and repeat offenders in the manner in which the disqualification regime will operate. It was recognised by the legislature that the safety of the public was more clearly at risk with a repeat offender and that in respect of such an offender it was a legitimate policy objective to not allow the prison sentence to have the effect of reducing the period of disqualification that such an offender would undergo. The fact that a similar provision was not inserted into ss,36 and 36A reflects a considered judgment by the legislature that such a provision was not necessary for first offenders even if that meant once restored their liberty they might not ultimately have to undergo the full period of disqualification set out in the court order.”

48.  There are two potential issues in this case relating to the Judge’s disqualification order. The first concerns the disqualification period on Charge 1 being less than the term of imprisonment. This is based on the principle that the period of disqualification must run concurrently with the term of imprisonment and should have actual effect by being longer than the prison sentence as set out in cases concerned with the offence of dangerous driving causing death: Secretary for Justice v Hung Ling Kwok [30], Wong Mun Ming [31], and HKSAR v Ko Yun Sang [32]. The second is whether a court can order separate disqualification orders arising from the same case to run consecutively. Allied to this issue is the requirement that a disqualification order under sections 36A(1) and 37(1) takes effect from the date it is made.

49.  As already noted, there is also the question of whether the Judge should have made an order in terms of section 72A.

Conclusion

50.  For the foregoing reasons, the applicant is granted leave to appeal against his sentence on the grounds that have been addressed in the judgment.