HKSAR v. CHOY WING LUNG GEOFFIEY DONAHUE

[English Translation – 英譯本]

HCMA 111/2018

[2018] HKCFI 972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 111 OF 2018

(ON APPEAL FROM KTCC 2429/2017)

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REASONS FOR JUDGEMENT

1.  The appellant pleaded guilty in the Kwun Tong Magistrates’ Courts to the following three charges:

(1)  First charge: Speeding[1]

(2)  Second charge: Driving without a driving licence[2]; and

(3)  Third charge: Using a motor vehicle without third party insurance[3].

2.  The magistrate[4]passed the following sentences:

(1)  First charge: a fine of $320;

(2)  Second charge: two months’ imprisonment; and

(3)  Third charge: two months’ imprisonment (concurrent with the whole of the sentence for the second charge) and disqualification from holding a driving licence for 12 months.

3.  The appellant appealed against the sentences of the second charge and the third charge.

Appellant deceased by the time of appeal hearing

4.  At the appeal hearing, the defence informed the court that the appellant had passed away days before, and submitted that the court should order that the appeal had terminated and abated because of the appellant’s death.

5.  I agreed with this way of dealing with the appeal and ordered this appeal and its relevant procedures had terminated and abated because of the appellant’s death. I now give my reasons.

6.  The appellant lodged an appeal by virtue of section 113(1) of the Magistrates Ordinance[5] which provides as follows: “Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.”

7.  From the provision, it can be seen that a person who is the subject of a conviction, sentence or order of a magistrate has a right of appeal. It does not specify what is to be done with the case where the person who lodged an appeal has died.

8.  In the consideration of the matter, I have referred to HKSAR v Cheng Chee-tock Theodore[6], a decision of the Court of Final Appeal and HKSAR v Tang Tik Hung[7], a decision of the Court of Appeal, both of which were submitted by Miss Karen Ng, Public Prosecutor, for the respondent.

9.  Appeals handled by the Court of Final Appeal and the Court of Appeal are respectively based on the relevant provisions of the Hong Kong Court of Final Appeal Ordinance[8] and the Criminal Procedure Ordinance[9], which are different from those governing magistracy appeals.

10.  Nevertheless, I consider the principles and factors mentioned in the above two cases are applicable to the handling of a magistracy appeal case in the event of the appellant’s death.

11.  The Court of Final Appeal indicated[10]:

“The Court’s discretion whether to continue a criminal appeal after an appellant’s death must be exercised on a principled basis. Factors relevant to the exercise of the discretion included:

(a)  Whether leave to appeal had been or would be granted: the Court would be guided primarily by this factor. Where leave to appeal was sought on a point of law, this would probably be a critical factor since the grant of leave on that ground would indicate that it was of sufficient importance to be heard by the Court as the final appellate court;

(b)  The existence of an applicant: the existence of a party who wished the appellant’s appeal to be continued and who made an application for such continuation would usually be an essential requirement;

(c)  The continuation of the appeal on a proper adversarial basis: the applicant’s willingness to be substituted as appellant and the continuation of the appeal on a proper adversarial basis with appropriate legal representation so that the issues to be determined were properly argued were relevant considerations. In exceptionally important cases, the Court might appoint an amicus curiae;

(d)  The applicant’s interest in continuing the appeal: the applicant’s reason for wishing to continue the appeal was relevant. If financial interest was relied on, the nature of that interest and its amount were relevant to the weight to be attached. Similarly, the applicant’s interest in restoring the appellant’s reputation might be relevant and the graver the offence of which the appellant was convicted, the more weight this factor would carry.”

12.  The Court of Appeal indicated[11]: “In our view, if a convicted and sentenced person dies after applying for leave to appeal against conviction or sentence, the Court of Appeal retains the discretion to consider all relevant factors before deciding if the application for leave should continue or automatically terminate and abate.  We find that the factors set out at para 51 in the judgment of Cheng Chee Tock Theodore and in Smith most helpful in guiding the court to decide how to exercise the discretion.”

13.  The Court of Final Appeal, in another case Lo Siu Kuen v HKSAR[12], pointed out that even though the appellant has died since the lodging of the appeal, if the conviction is unjust, the court has the discretion to entertain his appeal. In respect of whether or not the discretion should be exercised, it requires a review of the relevant circumstances of the case and the demands of justice.

14.  In my judgment, when a person who has lodged his magistracy appeal died before the hearing, the court entertaining the appeal has a discretion to decide whether the appeal should continue or abate. The decision must be made upon consideration of the overall relevant circumstances. In the present case, the appellant pleaded guilty to the charges. The facts he admitted showed: he asked his girlfriend to provide him with the car key to the car in question and to let him drive to work in that car. He did not hold a driving licence, and therefore he used that car without third party insurance. Afterwards, the appellant was stopped by police officers for speeding and was arrested for driving without a licence and using a motor vehicle without third party insurance.

15.  At the time of the offence, the appellant was 29 years old, working as a physical trainer. He had two criminal records, namely trafficking in a dangerous drug and possession of a dangerous drug, and had been sentenced to 3 years and 3 days’ imprisonment respectively.

16.  At trial, the appellant was represented by Ms Margaret Wu of counsel, who, in mitigation, put forward the following matters: the appellant went to Australia to study at a boarding school at the age of 15. He learned to drive in Grade 12, passed the written test, obtained an Australian temporary driving licence and accumulated more than 70 hours of driving experience, including driving experience on highways.

17.  The magistrate set out his sentencing considerations[13] in detail:

“The defendant has never held or acquired any driving licences in Hong Kong. He learned to drive in Australia but has never obtained a full driving licence. Although he had driving experience, it was limited to Australia. He has no driving experience at all in Hong Kong. He has never held any full driving licences, nor did he pass the relevant tests in any place. It is in fact questionable whether he had sufficient driving skills and road knowledge.

According to the defendant, except in a farm, he only had experience of driving under supervision in Australia. When the defendant was in Australia, his homestay guardian, knowing that he had no driving licence and had to be taught to drive, naturally would pay attention to and supervise his driving to avoid accidents. In the present case, the defendant had not [told] Miss Yuen that he had no driving licence. In such circumstance, Miss Yuen would not, in particular, pay attention to and supervise his driving. Therefore, even with Miss Yuen who had a driving licence next to the defendant, it was difficult to have effective supervision or assistance. Although the defendant had experience of driving in a farm, the conditions on a farm could not be comparable to that of a road.

The crime took place at 8:50[a]m on a Saturday, a busy traffic time, when many road users might be affected by the defendant’s driving. He even did not tell Miss Yuen that he had no driving licence. If Miss Yuen was told about the fact, it was highly likely that she would not allow him to drive for the sake of her personal safety and security. The defendant’s acts did not only deprive Miss Yuen of the chance to choose, but also made her not pay particular attention to his driving. Eventually she was implicated and charged. The defendant’s driving without a licence put himself, Miss Yuen and other road users at risk. Furthermore, when driving, he speeded in contravention of the traffic regulations which increased the risk. He drove without a licence, and in case of a traffic accident, with no third party insurance, other road users would lose the protection they should be entitled to. The defendant acted extremely irresponsibly.

In my view, it was serious that the defendant drove without a driving licence and without third party insurance, endangering other road users. I am of the view that there should be imposed a sentence of immediate imprisonment, and that a community service order is not appropriate and therefore not to be considered. Further, he had been sentenced to 3 years’ imprisonment for trafficking in a dangerous drug, and given such background, it is not appropriate to impose a community service order on him.

In respect of driving without a driving licence and using a motor vehicle without third party insurance, I would adopt a starting point of 3 months’ imprisonment respectively. On the defendant’s guilty plea, a one-third discount is given, hence two month’s immediate imprisonment is imposed in respect of the two charges. Given the two charges arose from the same incident, the whole of the sentences imposed in respect of the charges are to run concurrently. Further, in respect of the charge for using a motor vehicle without third party insurance, the defendant is disqualified from holding a driving licence for 12 months. In respect of speeding, a fine of $320 is imposed.”

18.  Drivers of motor vehicles have a great responsibility to other road users. The purpose of a licensing system for driving is to ensure that all drivers possess a minimum of driving skills, knowledge of road regulations and safety awareness. Whilst this system cannot guarantee road safety, it at least stipulates that unqualified persons are not allowed to drive. If persons with no driving licences are allowed to drive, and no serious regard is given to those in breach of the regulations in sentencing, it would not meet the public’s expectations and send the wrong message. In sentencing, the magistrate has taken account of the factors to which he should have regard.

19.  At the appeal hearing, no one representing the appellant stated that the appellant’s appeal would be continued. The appellant of the present case did not dispute his criminal liability. The material question is whether the sentences are contrary to legal principles or manifestly excessive. Terminating this appeal would not have affected the appellant. Nor would it affect the interests of justice or other public interest or other people. Accordingly, I agreed with the submission of the respondent and ordered that the appellant’s appeal and the relevant legal proceedings had terminated and abated by reason of his death.