HKSAR v. LEE CHAU SUNG

HCMA503/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.503 OF 2002

(ON APPEAL FROM ESCC 703 OF 2002)

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J U D G M E N T

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1. This matter took place in the middle of the night on 22 February 2002. Marine police officers' in fast pursuit speedboats were in Mirs Bay on routine patrol and they picked up on their radar a fast moving vessel. The vessel was not showing lights. It was a powerfully engined speedboat steered by the appellant. Using radar navigation the police closed in on the vessel having turned on their blue flashing lights in order to indicate their presence and to require the appellant to stop. They also shouted orders for him to stop which were ignored. The appellant then sped away with the police giving chase. A parachute flare was launched from one of the police boats and flashing signals were also shown, directing the vessel to stop. There then followed a high speed chase with the appellant steering an erratic course trying to escape in a determined way and, on one occasion, causing one of the police boats to take evasive action in order to avoid a collision. After a period of about eight minutes, the appellant was forced to come to a halt. His vessel was searched and he was found to be in possession of an unlicensed radio, and also that he had failed to permanently affix to the boat the appropriate registration number.

2. He was charged with four offences as follows : firstly, failing to stop the vessel; secondly, steering in such a way as to endanger safety at sea; thirdly, being in possession of unlicensed radio equipment; and fourthly, failing to permanently affix the boat's number to the vessel. In respect of the first two charges, he pleaded not guilty. In respect of the third and fourth, he pleaded guilty. He was tried by Mr McNair at the Eastern Magistrates' Court in respect of the first two matters and, on 13 May 2002, he was convicted and sentenced as follows : on the first charge, a term of four months' imprisonment was imposed, in respect of the second, six months' imprisonment, both of those sentences to be served concurrently; in respect of the third offence, a term of four months' imprisonment which was ordered to be served partly consecutively as to two months; and in respect of the fourth charge, there was a fine of $2,000. Accordingly, the total term of imprisonment was one of eight months. The appellant originally appealled against both conviction and sentence. But today he has, wisely in my judgment, abandoned his appeal against conviction, leaving over the appeal against sentence.

3. Mr Surman, who appears for him, submits that the learned magistrate fell into error in two respects. Firstly, because it is said that these offences essentially comprise one transaction, they should have attracted concurrent sentences and secondly, that in any event the sentences as imposed were excessive.

4. Dealing with the second point first. One needs to consider the background to this matter. It is well-known that this part of Mirs Bay is one frequently used by smugglers. It is for that reason that these waters are heavily patrolled by the Marine Police. That is the background. When they come across suspicious vessels, they are entitled to stop such vessels in order to search them. There is no suggestion in this case that this appellant was involved in any smuggling activity on this occasion. But that is the background and it is against that background that the magistrate had to consider the facts before him and arrive at the appropriate sentence. It seems to me that failing to stop following the clearest indication by the police that the appellant should stop was a serious matter and that in those circumstances the learned magistrate was fully entitled to impose the sentence that he did. The more serious offence in my judgment and this is the way the magistrate viewed this matter, again quite rightly, was the second charge - endangering safety at sea. This was a determined attempt to escape in which risky manoeuvres were engaged in by the appellant and all at a high speed. So far as I am concerned, a sentence of six months' imprisonment after trial was amply justified. The possession of unlicensed radio equipment is a matter which the legislature views seriously, hence a maximum available term of two years' imprisonment and a $50,000 fine in addition. In the overall circumstances of this matter, I take the view with the learned magistrate was absolutely correct in imposing the four months' sentence. So that disposes of the second limb of the appellant's appeal.

5. I now turn to the question of whether the magistrate was correct in making the sentence of four months' imprisonment in respect of the third charge partly consecutive.

6. There is force in my judgment in Mr Surman's submission that when one looks at these four offences they really do amount to one episode of criminality. This was a fast speedboat which failed to stop, tried to escape, on board was unlicensed radio equipment and the appellant had failed to attach the appropriate registration number to the vessel. So this is very much a single piece of criminality. If I may respectfully say so the magistrate did fall into error, albeit a small one if I can put it in this way, by imposing a partially consecutive four months prison sentence in respect of the third charge.

7. In my judgment, all these prison terms should have been concurrent and so to that limited extent this appeal must succeed. As a result, the appellant will serve a total of six months' imprisonment. I direct that the term of four months in respect of charge three should be served concurrently with the other prison terms.