HKSAR v. LAM SHUN CHOI

CACC 402/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 402 OF 2012

(ON APPEAL FROM DCCC NO 612 OF 2012)

____________________

____________________

J U D G M E N T

____________________

1.  The applicant pleaded guilty to eight charges before District Court Judge Dufton on 26 September 2012, and was sentenced to a total of 2 years and 8 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.

2.  The applicant seeks leave to appeal against the sentences imposed in respect of Charges 1, 6, 7 and 8.

3.  The charges arose out of two separate incidents.  The first incident occurred on 23 November 2011 and gave rise to Charges 1 to 6.  Charge 1 alleged dangerous driving contrary to section 37(1) of the Road Traffic Ordinance, Cap 374.  Charge 2 alleged using documents - in fact, motor vehicle number plates - with intent, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374.  Charge 3 alleged driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374.  Charge 4 alleged using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.  Charge 5 alleged using a motor vehicle on a road without displaying a valid vehicle licence, contrary to Regulations 25(1)(a) and 60(3) of the Road Traffic (Registration and Licensing of Vehicle) Regulations made under the Road Traffic Ordinance, Cap 374.  Charge 6 alleged possession of a dangerous drug, namely 0.23 grammes of a solid containing cocaine, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

4.  The second incident occurred on 7 March 2012 and gave rise to four charges, on which the applicant pleaded guilty to Charges 7 and 8.  Charge 7 alleged attempting to drive without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374.  Charge 8 alleged attempting to use a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 and section 159G of the Crimes Ordinance, Cap 200.

5.  Turning then to the facts in relation to Charges 1 to 6, on 23 November 2011, the applicant failed to stop the motor car which he was driving in Cameron Road, notwithstanding demands that he do so from a police officer driving a motorcycle on which the blue warning light was switched on, and the fact that the officer used his loudspeaker, instructing him to stop.  The applicant drove through three sets of traffic lights, reaching speeds of 80 kilometres an hour in a speed-restricted area of 50 kilometres per hour.  Eventually, because of traffic stationary at a red traffic light, he drove onto the pavement, where he hit a pedestrian, then he drove onto the road, where he collided with the rear of a taxi.  Having alighted from his own vehicle and run away, he was intercepted at Tin Kwong Road.

6.  The pedestrian was treated in hospital but released.  The taxi driver had an injury to his back, a sprain to his back, and was given several days’ sick leave. Today I am told that the pedestrian, as was anticipated at the plea, has fully recovered.  The taxi driver apparently still receives some physiotherapy.

7.  A search of the applicant’s vehicle revealed a plastic bag containing the cocaine in the driver’s armrest.  The applicant did not have and had never held a driving licence.  He was not insured.  The number plates on the vehicle were not that of the vehicle.

8.  Turning then to Charges 7 and 8 and the events of 7 March 2012, having been given police bail in respect of the events arising from the events of 23 November 2011, the applicant was seen by police officers on 7 March 2012 to walk up to a motor vehicle and start its ignition.  He was intercepted and arrested.

9.  In his reasons for sentence in respect of the charges arising from the events of 23 November 2011, the judge said that he took as aggravating features the manner in which the applicant had driven:  “The driving was a prolonged, persistent and deliberate course of very bad driving, involving driving through three red lights, at a speed which at times was well in excess of the speed limit, in an attempt to escape from police, mounting a pavement where a pedestrian was hit and injured; and colliding with a taxi, the driver of which was also injured.”

10.  The judge stated that he took a starting point for the offence of dangerous driving - that is Charge 1 - of 2 years and 3 months’ imprisonment.  In doing so, he noted that the applicant had offered to make compensation to the injured pedestrian and the taxi driver for the injuries and loss sustained.  However, he said that he had no basis on which to estimate those damages, and noted that payment in any event would not be forthcoming for a long time, because the applicant was going to be sentenced to a term of imprisonment.

11.  The judge stated that he regarded the use of false number plates as a serious offence aggravated by the fact that the defendant had no driving licence and therefore no insurance.  He took a starting point of 12 months’ imprisonment. The judge stated that he took starting points of 1½ months’ imprisonment, 6 months’ imprisonment, and 1½ months’ imprisonment for the offences of driving without a valid driving licence, using a vehicle without third party insurance, and for failing to display a valid vehicle licence respectively.

12.  Turning then to Charge 6, noting that the applicant was a persistent offender with six previous convictions relating to dangerous drugs, four of which were for the offence of possession of dangerous drugs, the judge stated that he enhanced the starting point for sentence that he would otherwise have taken from 9 months to 12 months’ imprisonment.

13.  For the applicant’s pleas of guilty, the judge discounted sentence by one-third from that taken for the starting point.

14.  Accordingly, the judge sentenced the applicant as follows:  Charge 1, 1 year and 6 months’ imprisonment, together with a disqualification order from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years; Charge 2, 8 months’ imprisonment; Charge 3, 1 month’s imprisonment; Charge 4, 4 months’ imprisonment and a disqualification order from holding or obtaining a driving licence for all classes of vehicles for 12 months; Charge 5, 1 month’s imprisonment; Charge 6, 8 months’ imprisonment.

15.  Having regard to the totality of sentence, the judge ordered that the sentences imposed in respect of Charges 2 to 5 be served concurrently to that imposed in respect of Charge 1.  Noting that the offence of possession of the cocaine was entirely different from the other offences, the judge ordered that 8 months of the sentence of imprisonment imposed for that offence be served consecutively to the sentences of imprisonment imposed for the other offences.

16.  Accordingly, the total sentence of imprisonment imposed on the applicant for the charges arising out of the events of 23 November 2011 was 26 months’ imprisonment.

17.  Turning then to the events of 7 March 2012, noting that the charges that arose out of the events of 7 March 2012 were committed whilst the applicant was on police bail for the charges brought in respect of the events of 23 November 2011, the judge stated that he took that to be “an aggravating feature of sentence”.  The judge stated that he took a starting point for sentence for attempting to drive without a valid driving licence of 3 months’ imprisonment, and for attempting to use a vehicle without third party insurance, he took 9 months’ imprisonment.

18.  For the pleas of guilty, the judge afforded the applicant a discount of one‑third from that taken for the starting point.  Accordingly, the sentence imposed upon the applicant for Charge 7 was 2 months’ imprisonment, and that for Charge 8, 6 months’ imprisonment.  Noting that they arose out of the same events, he ordered that they be served concurrently.  However, noting that the events of 23 November 2011 and 7 March 2012 were “entirely separate and distinct”, he ordered that the terms of imprisonment imposed in consequence for Charges 7 and 8 be served consecutively to the sentences imposed in respect of Charges 1 to 6.

19.  Accordingly, the overall total sentence of imprisonment imposed was 2 years and 8 months’ imprisonment.  The judge ordered the applicant to be disqualified from holding or obtaining a driving licence for 3 years for the offence the subject of Charge 1, and for 12 months for the offence the subject of Charge 4.  He made a similar order of 18 months’ disqualification for the events the subject of Charge 8.  Accordingly, in total, the applicant was disqualified in that manner for 3 years.

20.  In his grounds of appeal against sentence, the applicant asks that the orders that some of the sentences be served consecutively with other sentences be quashed. He asks that all the sentences be ordered to be served concurrently.  Further, he says that the sentence imposed in respect of the dangerous driving charge, Charge 1, was excessive having regard to the sentences imposed in other cases. In particular, he refers to District Court case 806 of 2012, where sentences of 16 months and 12 months’ imprisonment were imposed by Judge Longley for two offences of driving dangerously.  In addition, he points to District Court 872 of 2012, which was a case in which the same judge, namely Judge Dufton, imposed sentences for a multitude of offences, but including dangerous driving. Again, the judge imposed a sentence after affording a discount of one-third of 1 year and 4 months’ imprisonment.

21.  Next, the applicant asks that the order that the sentences be made consecutive be quashed for humanitarian reasons.  He wishes to be released to take care of his wife and young sons.  He said that he came to commit the offences arising from the events of 23 November 2011 because he was helping a friend to sell a car.  He is very remorseful and regretful for having committed the offences.  Whilst in prison he has enrolled on a course to become an air-conditioning mechanic.

22.  In my judgment, the judge was correct to describe the offences as serious.  The course of dangerous driving was sustained and only came to an end when, having hit a pedestrian walking on the pavement, and having collided with a taxi, the applicant had no choice but to leave the vehicle and flee.  Similarly, the judge was correct to regard the commission of the offences arising from the events of 7 March 2012 as being aggravated by the fact that the applicant was on bail for the driving offences arising out of the events of 23 November 2011.

23.  In the result, I am satisfied that the sentences and orders made by the judge were entirely apposite.

24.  Accordingly, the application for leave to appeal against sentence is refused.