HKSAR v. MAK SIU MAN

[English Translation – 英譯本]

HCMA 843/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 843 OF 2004

(ON APPEAL FROM TMCC NO. 7 OF 2004)

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BETWEEN

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JUDGMENT

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1. The present case involved five defendants, all of whom were charged with “conspiring to pervert the course of justice” (Charge 4). In addition, the Appellant, who was the 1^st Defendant at trial, faced four other charges, namely “assaulting a police officer in the due execution of duties” (Charge 1), “being a driver, injuring persons by furious driving” (Charge 2), “driving under the influence of alcohol or drug” (Charge 3) and “obstructing a police officer in the execution of duties” (Charge 6). The Appellant was convicted after trial on Charges 1, 2, 4 and 6. He was sentenced to imprisonment for 5 months, 18 months, 6 months and 3 months respectively for the four offences. The sentences for Charges 1, 2 and 6 were ordered to run concurrently. As for charge 4, two months of the sentence was to run concurrently with and the remaining four months consecutively to the above sentence. The total length of sentence was therefore 22 months. The Appellant appealed against conviction and sentence.

Circumstances of the offences

2. The offences took place between 2 a.m. and 3 a.m. on 1 January 2004. Mr Fu, a sergeant (PW6), was driving a police vehicle on patrol. When he arrived at Fung Kam Street, Yuen Long, he saw a black private car parked by the roadside. He suspected that the car was overloaded, and so he alighted from the police vehicle and ordered the driver of the car, i.e. the Appellant Mak Siu Man (a male) to switch off the car engine and be investigated. The Appellant suddenly backed the car in order to hit the sergeant, who fortunately managed to avoid being hit and injured. (Charges 1 and 6) In any event, the Appellant immediately drove the car away to escape the police. He drove in a reverse direction to the traffic and neglected traffic signals, and he drove at such a high speed that the police officers whom the sergeant had called for assistance were unable to catch up with him even though they drove at 100 to 130 km per hour. In the end, the Appellant’s car collided with a taxi at a road junction, as a result of which a number of passengers in the taxi were injured. (Charge 2) This notwithstanding, the Appellant and the other defendants were arrogant in their manners. After they alighted from the car, they loudly scolded the police officers who then arrived and also pushed and bumped against them. They also misrepresented that the 2^nd Defendant (Leung Shuk Chong (a female)) was the driver in question, and they refused to retract the misrepresentation despite repeated questioning by the police. (Charge 4) In any event, the sergeant identified the Appellant on the spot and instructed the other officers to conduct a breath test on the Appellant. The data obtained from the test showed that the Appellant drove under the influence of alcohol. (Charge 3) This particular charge was not established at trial, because the magistrate ruled that the Appellant was completely conscious as he drove and that the reckless way in which he drove was a result of his deliberate act. Finally, Charge 5 alleged that the 2^nd Defendant refused to submit breath samples and blood samples for testing, and this had nothing to do whatsoever with the Appellant.

Appeal against conviction

3. The appeal against conviction was withdrawn by Counsel for the Appellant at the appeal hearing.

Appeal against sentence

4. Counsel for the Appellant has put forward three grounds of appeal against sentence:

(1)     The sentence for Charge 2 is wrong in principle and manifestly excessive.

(2)     In respect of Charge 4, there are discrepancies between the Appellant’s sentence and the sentences imposed on the 2^nd and 5^th Defendants, and the magistrate also erred in principle.

(3)     In light of the totality principle, the Appellant’s total term of imprisonment of 22 months is also manifestly excessive.

5. Counsel’s skeleton submissions state as follows:

(1)     Charge 2, directed against the driver of the vehicle, was for injuring persons by furious driving, contrary to section 33 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong. The maximum penalty for this offence is imprisonment for 2 years. The circumstances of the present case were not among the most serious of its type. The magistrate obviously erred in principle in adopting a starting point of 18 months despite the relevant circumstances. Furthermore, the magistrate failed to give reasonable and proper weight to the Appellant’s clear record as a mitigating factor. By comparison, in respect of Charges 1 and 5, the magistrate did reduce the Appellant’s sentence by one month on account of his clear record. Nor did the magistrate duly consider the Appellant’s background, family condition, stable job and health condition. An immediate imprisonment for 18 months is excessive for a first offender.

(2)     In HKSAR v. PARK Myung hwa (HCMA 156/2004), the appellant was convicted after trial of dangerous driving causing death. She had a clear record prior to the offence. Having considered the circumstances of the offence and the mitigating factors, the magistrate sentenced the Appellant to immediate imprisonment for 3 months.

(3)     Charge 4, with which all the five defendants in the present case were charged, was for conspiring to pervert the course of justice, contrary to the common law and section 159A and 159C of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. All the defendants were convicted of this offence after trial. The 1^st defendant (the Appellant) and the 3^rd and 4^th defendants were each sentenced to immediate imprisonment for 6 months, the 2^nd defendant to community services for 240 hours, and the 5^th defendant to probation for 12 months. Although the 2^nd and 5^th defendants are aged 21 and 16 respectively, the sentence imposed on each of them is proper as a whole. By comparison, in light of the principle that all the defendants are equally culpable for the offence, the 6 months’ immediate imprisonment imposed on the Appellant is unfair to him. Furthermore, similar to the sentencing for Charge 2, the magistrate failed to reduce the Appellant’s sentence as appropriate on account of his clear record.

(4)     In light of the circumstances of the present case and the mitigating factors pertaining to the Appellant, who is a first offender, the sentence of 22 months’ immediate imprisonment is excessive.

6. In my judgment, none of the Appellant’s complaints can be sustained.

7. First of all, Charge 2, “being a driver, injuring persons by furious driving”, originates from section 33 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong. The maximum penalty for this offence is imprisonment for 2 years. Although the circumstances in which the Appellant committed the offence were not the worst imaginable, they were horrendous, indicating the Appellant’s complete disregard of the law and for the safety of others. Therefore, a sentence of 18 months’ imprisonment upon conviction after trial is in my judgment very appropriate and not manifestly excessive.

8. Before arriving at this conclusion, I considered the case of HKSAR v. Park Myung Hwa, HCMA 156/2004 cited by the Appellant. The defendant in that case was charged with “dangerous driving causing death”, and two victims were involved, but the defendant was only sentenced to imprisonment for 3 months and disqualification for 3 years. However, what the defendant in fact did was nothing more than the so-called “jumping a red light”, as a result of which her car was hit by vehicles from different directions and pushed onto a safety island, leading to the accident in question. Furthermore, it appears from the judgment in the case that there were frequent instances of violations of traffic regulations at the transport interchange in question, that those instances were related to the sizes and locations of the traffic lights, and that there was room for improvement in that respect. And there were circumstances personal to the defendant, for example, she was the mother of a male infant 22 months old. In one word, the circumstances of that case are different from those of the present case and cannot be mentioned in the same breath.

9. Regarding the question of whether a sentence should be further reduced on account of the defendant’s clear record, I think the position, which has been made very clear in recent years, is that this factor is generally subsumed in the usual one-third discount following a plea of guilty and does not warrant an additional reduction in the sentence. This is also apparent from another traffic case cited by the Appellant, namely S.J. v. Ko Wai Kit Paul, CAAR 12/2001. The defendant in that case was charged with “dangerous driving”, and in the incident in question a police officer and two members of the public were injured. At the time of sentence, the defendant had a clear record. Paragraph 20 of the judgment states as follows:

… in a case of this type, the fact of the respondent’s age, 22 years, constituted no mitigation at all. So, too, the judge ought not to have discounted a period from the sentence on account of the fact that at the time of sentence the respondent had not been convicted of a like offence. Lack of previous convictions will often be subsumed in the credit given for a plea of guilty. … the fact that a 22 year old has not previously driven to the terror and danger of the public in the way this respondent drove, injuring people whilst he was about it, is a matter carrying scant credit.

10. It is true that the above case was described by the Court of Appeal as the worst type of case of dangerous driving. However, the same principle applies to the present case, the circumstances of which were in any event also very serious. As regards the one-month reduction of sentences given by the magistrate for Charges 1 and 5 on account of the Appellant’s clear record, I can only comment that the magistrate had taken a particularly lenient approach. This cannot possibly mean that the magistrate erred in not giving an additional reduction of sentence for Charge 2. By the same token, the Appellant’s background did not provide him with much assistance because, apart from the lack of previous convictions, there was nothing in his background which was noteworthy or upon which he could say he had a “positive good character”. In fact, according to the background report, the Appellant, who is aged 33, had not shown any remorse but, rather, had insisted on his innocence and alleged that he had unfairly been remanded in custody, and his family members had simply been biased towards him. This remained the case until he withdrew his appeal against conviction before us.

11. Finally, the Appellant contends that, in respect of Charge 4 (“conspiring to pervert the course of justice”), there are discrepancies between the sentence imposed on him and those imposed on the 2^nd and 5^th defendants and this is unfair to the Appellant. However, as the Appellant has pointed out, the 2^nd and 5^th defendants, aged 21 and 16 respectively, are much younger than the Appellant. In fact, the transcript of the recording of trial shows that the young age of the 5^th defendant was the very reason why the magistrate imposed a lenient sentence of 18-month probation on that defendant. As for the defendant, the female who posed as the driver, the magistrate said that she was the only defendant who candidly admitted her mistake at the time of sentence and could therefore receive special treatment. She was in the end sentenced to community services for the statutory maximum of 240 hours. I also notice that the 2^nd defendant is in fact the Appellant’s girlfriend and may have played a relatively passive role in posing as the driver. In any event, there were considerations unique to the 2^nd and 5^th defendants which justified a difference between their sentences and the Appellant’s sentence. On the contrary, although the 3^rd and 4^th defendants were also younger than the Appellant, they were both adults, and there were no sentencing considerations unique to them, and they therefore received the same sentence as that of the Appellant, namely 6 months’ imprisonment. Finally, in approaching the question of different defendants receiving different sentences for the same offence, a long-standing general principle is that it is only necessary to consider whether the sentence imposed on the complainant is appropriate, and if the answer is in the affirmative, there is no need to take into account the sentences imposed on the co-defendants. This principle, as applied to the present case, does not work in the Appellant’s favour because the term of imprisonment of 6 months imposed on him is not open to criticism. 

12. In conclusion, the sentence of 22 months’ imprisonment imposed by the magistrate on the Appellant is neither wrong in principle nor excessive. The Appellant’s appeal against sentence is accordingly dismissed.