HKSAR v. SHAM PUI CHAK

CACC 165/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 165 OF 2015

(ON APPEAL FROM DCCC NO. 925 OF 2014)

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JUDGMENT
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1. The applicant seeks leave to appeal against the total sentence of 15 months’ imprisonment imposed on him on 29 April 2015, after his conviction after trial by District Court Judge Isaac Tam of two offences of dangerous driving of a motorcycle on 16 March 2014 at different locations in Hong Kong; namely, on Route Twisk in Yuen Long (Charge 1) and at Kam Tin Road in Yuen Long (Charge 2), contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374.

2. The applicant was sentenced to 15 months’ imprisonment on each of the Charges 1 and 2. In addition, the applicant pleaded guilty to a charge of careless driving at the Pok Oi Interchange in Yuen Long on the same date (Charge3), for which he was sentenced to 2 months’ imprisonment. Also, he pleaded guilty to failing to display a standard registration mark (Charge4) and of using a defective vehicle (Charge5) for which charges he was fined $500 and $1,000 respectively.

Reasons for sentence

3. In his reasons for sentence, the judge described the facts that he found proved in convicting the applicant. Of Charge 1, he said that he had found that:

“ On 16 March 2014, at about 9.45 am on Route Twist, Yuen Long, the defendant was driving a dark-coloured motorcycle bearing registration mark PE 3892 and overtook a bus by crossing double white lines at a speed of about 90 kilometres per hour. The speed limit was 50 kilometres per hour.

A police car was nearby and gave chase with siren and flashing lights on. During the chase, the police driver never lost sight of the motorcycle. Although at times he came close enough to the tail of the motorcycle, he was not able to see the licence plate usually to be found at the back of a motorcycle. The motorcycle kept moving forward at speeds between 30 and 100 kilometres per hour and overtook various other vehicles whenever obstructed by crossing double white lines at speed. Eventually, the police driver lost sight of the motorcycle when the latter just entered Kam Tin Bypass.”

4. Of Charge 2, he noted that he had found that:

“ The defendant on the same motorcycle was seen again in Kam Tin Road, Yuen Long bound, shortly after it disappeared. Initially, he was not travelling in excess of the speed limit of 50 kilometres per hour. But when a police motorcyclist spotted it and turned around to chase it with siren and flashing lights on, the defendant speeded up to about 100 kilometres per hour and was travelling in the middle of two lanes going in the same direction with heavy traffic, occasionally finding himself in between two overlapping vehicles. The police motorcyclist kept the defendant in sight and followed him to Au Tau Roundabout which the defendant entered at about 80 kilometres per hour. Thereafter, the defendant came onto the approach road to Pok Oi Interchange.”

5. Of Charge 3, he noted that he had found:

“ On the approach road, the defendant was travelling in the second lane initially at 100 kilometres per hour, but later slowed down to a stop at about 10 metres away from the roadblock ahead created by three other police motorcycles. Ignoring police warning to stop the engine, the defendant moved forward again to about 1 metre from the roadblock, intending to slip through a gap between the roadblock and a green taxi in the first lane. However, as the roadblock was repositioning itself by moving towards the first lane, the defendant when moving into the first lane collided with one of the police motorcycles of the roadblock causing it and his own motorcycle to fall. In the confusion, one other police motorcycle fell. As a result of the accident, two police motorcyclists suffered injuries and their respective motorcycles sustained damage.”

6. The judge said that the applicant had made out-of-court statements to the police on being arrested for furious driving and after having been cautioned, which statements he confirmed in a post-recorded police notebook entry, after which he participated in a record of interview. In summary, the judge found the applicant to have asserted:

“ (a) He fled at Tai Mo Shan because he did not want to be caught by the police for a vehicle examination. He did not intend to hit the police vehicles;

(b) That morning, he went for a ride on his motorcycle PE 3892 from home to Route Twist at Tai Mo Shan. Later, he intended to return home;

(c) As he was in a rush to return home, he did overtake vehicles by cutting double white lines; he thought he had been speeding;

(d) He was travelling at high speed in between the first and second lanes of Kam Tin Road and passed by other vehicles at the same time; and

(e) At Pok Oi Interchange, he found so many police vehicles around. He was afraid of being caught and requested for a vehicle examination. He intended to drive slowly by the side but somehow he clashed into the police motorcycle or motorcycles.”

7. Of the personal particulars of the applicant, the judge noted that he was 23 years of age, educated to higher diploma level and that he worked at Hong Kong International Airport as ground staff. Further, he had no criminal convictions, although in 2012 he was subjected to a fixed penalty for driving at a speed of more than 30 but less than 45 kilometres per hour.

Sentence

8. Of the dangerous driving charges, the judge said that the offence was serious and subject to a maximum penalty of three years’ imprisonment. He added that deterrence was a consideration of which account must be taken. The judge said that he approached sentencing on Charges 1 to 3 together, given that they were an almost continuous course of conduct. Of that conduct, he said that it comprised:

“ …prolonged speeding, repeated breaches of traffic regulations, multiple overtaking of other vehicles under precarious circumstances, failure to stop despite clear and unambiguous police warnings to do so and attempting to slip through a police roadblock.”

9. Furthermore, he noted that the total length of the pursuit was in excess of 5 kilometres, whilst the pursuit the subject of Charge2 was in heavy traffic. Finally, he observed that two police officers suffered slight injuries and their motorcycles had sustained minor damage as a result of the conduct the subject of Charge 3.

Starting point for sentence

10. Having determined that the applicant’s “open defiance of the law” required the imposition of an immediate custodial sentence, the judge said that for Charges 1 and 2 he adopted a “global starting point of 18 months’ imprisonment.” For the offence of careless driving (Charge3) the judge adopted a starting point for a sentence of 4 months’ imprisonment.

Discount

11. The judge said that to acknowledge the applicant’s “clear record” he afforded him a discount of three months’ imprisonment from the starting point of 18 months’ imprisonment taken in respect of each of Charges1 and 2. In respect of Charge3, he said that the applicant was entitled to a one-third discount from the sentence of four months’ imprisonment taken as the starting point. In addition, he said that he afforded the applicant a discount of one month’s imprisonment in acknowledgement of the applicant’s “clear record”.

Sentence

12. Accordingly, the judge sentenced the applicant to 15 months’ imprisonment on each of Charges 1 and 2 and two months’ imprisonment in respect of Charge3, which sentences he ordered to be served concurrently. In addition, in respect of Charges1 and 2 he ordered that the applicant be disqualified from driving all classes of vehicles for one year.

Ground of appeal against sentence

13. In the single ground of appeal against sentence advanced on behalf of the applicant, MrDuncanPercy submitted that the total sentence of 15 months’ imprisonment imposed on the applicant was manifestly excessive, the judge having erred in stipulating a starting point for sentence in respect of Charges1 and 2 of 18 months’ imprisonment.

14. In his written submissions, Mr Percy made it clear that no issue was taken with the judge’s imposition of a custodial sentence or with his determination that a deterrent sentence was warranted. However, he contended that the applicant’s dangerous driving was not of the most serious kind. In particular, it was submitted that the applicant’s driving was not “totally reckless towards the safety of other road users” and that when required to do so by the presence of vehicles ahead of him he slowed down and only sped up, albeit to cross double white lines, when road conditions enabled him to overtake. He came to a stop at the police roadblock, albeit that he then tried to manoeuvre his way around the roadblock. It was not suggested that he had violated red light signals or that he had driven in the wrong direction against the traffic flow.

15. Mr Percy referred the court to three judgments of this Court[1] and to the Reasons for Sentence given in two cases in the District Court.[2] He submitted that a starting point for sentence of about 12 months’ imprisonment was appropriate in the case of the applicant.

The submissions of the respondent

16. For the respondent, Ms Peggy Leung accepted that the applicant’s driving was not of the worst kind of dangerous driving, but she submitted in respect of Charges1 and 2 that, although no other road user was injured or property damaged, other road users were put at risk by the driving of the applicant in that he had repeatedly overtaken vehicles by crossing double white lines at high speed and, in respect of Charge2, had overtaken vehicles in heavy traffic by driving in the middle of two lanes. She submitted that the overall starting point taken by the judge of 18 months’ imprisonment was not manifestly excessive. For her part, MsLeung referred the Court to four judgments of this Court in respect of dangerous driving.[3]

17. Ms Leung submitted that the judge had erred in sentencing the applicant to two months’ imprisonment in respect of Charge3, by affording the applicant a discount of one month’s imprisonment to reflect good character over and above the one-third discount, from the starting point of four months’ imprisonment, afforded him for his plea of guilty.

A consideration of the submissions

18. In the judgment of this Court in Secretary for Justice v Poon Wing Kay the judgment of the Court of Appeal of England and Wales in RvCooksley [4] was cited with approval. In the latter case, the Court provided sentencing guidelines principles for, inter-alia, offences of dangerous driving. Nevertheless, this Court provided its own observations on the approach to sentencing. In particular, as MsLeung pointed out in her written submissions, MaCJHC, as MaCJ was then, observed:[5]

“ While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor : ‑ at page 47b (paragraph 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. In some cases, the fact that only some aggravating factors exist, but not others (such as in the present case), may still bring the case into a very serious category.”

19. All of the judgments of this Court to which MrPercy referred concerned convictions in respect of causing death by dangerous driving, contrary to section36(1) of the Road Traffic Ordinance, rather than dangerous driving simpliciter. Two of them concerned offences committed prior to 4 July 2008, when the sentence for the offence was increased from 5years’ to 10 years’ imprisonment. So, the actual sentences concerned are of no direct assistance to this Court.

20. Although three of the four judgments of this Court to which MsLeung referred concerned convictions for dangerous driving, perspicaciously she acknowledged in her written submission that the facts of those cases were more serious than the facts of the instant case. For example, in Jim Chong Shing the applicant was road racing with other motorcars when he encountered a police roadblock. In performing a U-turn to escape from the police the applicant deliberately collided with police vehicles in order to force a way through them. A police officer was injured in the impact. Thereafter, the applicant drove against oncoming traffic, causing other drivers to swerve to avoid a collision. Eventually, the applicant stopped the vehicle, allowing a police motorcyclist to draw alongside. However, when asked by the police officer to turn off his engine the applicant drove off and made good his escape. In doing so, a chase of about 10minutes ensued during which time the applicant committed other traffic violations, including speeding and crossing a double white line. The applicant was convicted after trial of dangerous driving and of damaging property being reckless as to whether life would be endangered, contrary to section60(2) of the Crimes Ordinance, Cap.200. This Court refused his application for leave to appeal against sentences of 2½years’ imprisonment and 3years’ imprisonment respectively, of which two years of the latter sentence was ordered to be served concurrently with the former sentence. Accordingly, the total sentence imposed on the applicant was 3½years’ imprisonment.

21. It is clear from the judge’s description of the applicant’s driving that the applicant did not drive dangerously throughout the fivekilometre distance. Although the applicant sometimes travelled at speeds of up to 100kilometre per hour to escape the first police officer, the judge noted that he also slowed down to 30kilometre per hour. Furthermore, although the applicant overtook other vehicles by crossing double white lines it appears that there was no evidence that those manoeuvres had caused other oncoming vehicles to swerve or slowdown.

22. Having succeeded in escaping from the first police officer and having reached Kam Tin Road, where he was sighted by the second police officer, the judge noted that the applicant was not travelling in excess of the 50kilometre per hour speed limit. It was in response to the second police officer activating his siren and flashing lights that he resumed speeding, in an attempt to escape detention. Again, although the judge noted that the applicant had overtaken other vehicles by manoeuvring his motorbike in the middle of the two lanes in which vehicles were travelling in the same direction, it appears that there was no evidence that those manoeuvres caused the vehicles that he was overtaking to change direction or slowdown, or that he passed dangerously close to those vehicles.

23. Mr Percy was correct to concede that it was appropriate to impose a deterrent sentence of imprisonment on the applicant. The issue is simply whether in all the circumstances, in particular the risk caused to others by the applicant’s driving, the sentence imposed on the applicant was too high.

Conclusion

24. I am satisfied that Mr Percy has advanced at least reasonably arguable grounds of appeal that the sentence of 15months’ imprisonment imposed on the applicant was too high. Accordingly, I grant the applicant leave to appeal against sentence.