THE SECRETARY FOR JUSTICE v. KO WAI KIT, PAUL

CAAR 12/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 12 OF 2001

(ON APPEAL FROM DCCC 537 of 2001)

__________________

______________

______________

J U D G M E N T

______________

Hon Stock JA (giving the judgment of the Court):

1. This is an application by the Secretary for Justice for a review of sentence pursuant to the provisions of section 81A of the Criminal Procedure Ordinance, Cap. 221, leave having been granted by the Chief Judge on 15 August this year.

The charges

2. On 30 July 2001, the respondent, aged 22 years, pleaded guilty in the District Court to one charge of dangerous driving, contrary to s. 37 of the Road Traffic Ordinance, Cap. 374, and to one charge of resisting police officers in the due execution of their duties, contrary to s. 36(b) of the Offences against the Person Ordinance, Cap. 212.

The sentence

3. HH Judge Yung sentenced the respondent to 12 months' imprisonment in respect of Charge 1, the dangerous driving charge, and to one week's imprisonment in respect of Charge 2, that is, resisting the officers, this sentence to run consecutively, making a total of 12 months and one week's imprisonment. The respondent was also disqualified from holding or obtaining a driving licence for all classes of vehicles for two years.

The facts

4. The facts of the case, as agreed by the respondent, disclose a shocking case of dangerous driving, a case that quite clearly falls within that band that can be called the worst of its type.

5. At about 5:30 p.m. on 6 April 2001, a patrolling motorcycle police officer, saw the respondent driving a van in Kowloon and doing so erratically. The respondent's van suddenly made an unlawful 'U-turn', crossing double solid white lines in Jordan Valley Road, Ngau Tau Kok, Kowloon. When the officer attempted to intercept the van, the respondent disobeyed the command to stop, and drove off. In the course of a crazed journey from Jordan Valley Road to Prince Edward Road East, Prince Edward Road West, Waterloo Road, Chatham Road, Austin Road and Canton Road, he committed one traffic offence after another, jumped red lights, collided with motor vehicles, and with motorcycles, injuring a police officer and two civilians, failed to obey police commands to stop, and when ultimately he was stopped, violently resisted arrest, injuring a number of police officers. That is the picture in its very broadest summary.

6. A closer account reveals that after the respondent drove off from Jordan Valley Road, he steered his van the wrong way against traffic on a one way road, and failed then to stop at red traffic signals. He was pursued. At the junction of On Wah Street and Chun Wah Road, the van struck a petrol tanker. But the respondent drove on. He struck two more private cars on Princess Edward Road East while passing through a gap between them. Not surprisingly, both vehicles were damaged.

7. A Police Emergency Unit vehicle, car no. 52, tried to block the traffic on Price Edward Road East, but it, too, was hit by the van, and was as a result rammed into the concrete barrier of a flyover. The driver of car no. 52, a police officer, was injured and the vehicle damaged. Alerted to the fact that the respondent's van was approaching Prince Edward Road West, another police officer stopped the traffic near the junction of Prince Edward Road West and La Salle Road. The respondent managed to evade the block by driving through a gap but not before causing the officer to fear that he was to be run down by the respondent, so much so that he drew his revolver and fired at the van.

8. On the respondent went, driving as dangerously as before. The van turned left from Prince Edward Road to Waterloo Road, heading towards Princess Margaret Road. When it reached Chatham Road near Austin Road, he drove the van across the hard shoulder to the opposite lane and then travelled against the flow of oncoming traffic. He then turned right into Austin Road, heading towards Canton Road. When the van reached Kimberley Road in Tsimshatsui, it collided with a taxi and three private vehicles, causing injuries to one driver and to a passenger. The van then reversed and damaged a lorry and three police motorcycles. The journey was finally at its end.

9. Nine police officers went forward to arrest the respondent but he resisted them violently and, in doing so, five of them were injured in the ensuing struggle. The injuries were abrasions and tenderness to parts of their bodies and, in one instance, a cut.

10. On the same day, the respondent was sent to Queen Elizabeth Hospital, and there a urine test disclosed the presence of methamphetamine and amphetamine, and he was found to have amphetamine drug overdose.

11. On 10 April, in a video-recorded interview he admitted the offences and said that he had been under the influence of 'ice'.

12. When this respondent appeared before the District Court judge he was a person without previous convictions, although we shall later mention an offence which he committed of the same kind in March 2001 for which however he was not sentenced until 16 August 2001, and which does not affect our approach to this review.

The mitigation advanced

13. Returning to the present case, the mitigation suggested on the respondent's behalf before the District Court judge concentrated on the fact that the respondent was the worse for drugs when he committed these offences. We do not propose to repeat the details of the extraordinary material advanced as mitigation. In its essence, however, the respondent asserted that he was suffering from some illusion or delusion that he was on an important mission to deliver a message and that the message had to be delivered, come what may; that he knew that he was disobeying police instructions, but he had this mission to accomplish for the common good. We do not doubt that certain drugs may cause hallucinations. Whether this was so in the present case, we cannot say, but it matters not a jot for the purpose of sentence in this case.

14. The judge was told in mitigation that the respondent had a clear record, 'not even a traffic conviction'. That was at that date true, although other proceedings were pending. In that regard we note in passing that there had been an attempt by the prosecution to have both cases heard together, but this was successfully resisted before another judge at a stage when the March events were the subject of review by lawyers in the Department of Justice, and at a stage when the respondent intended, apparently, to plead not guilty to the charges in respect of the April offences. By 30 July, however, the respondent had not only been charged with the March offence in the magistracy but had in fact pleaded not guilty and his trial was due to be heard on 16 August. Had the judge been told this fact he might have decided to adjourn sentence in this case to await the outcome of the magistracy proceedings. This procedural discordance is unfortunate, but we do not visit it in any way upon the respondent.

The judge's reasons

15. In his reasons for sentence, the judge said, quite rightly, that it was a matter of mere luck that no-one was seriously injured during the respondent's escapade. He went on:

"I accepted that the defendant was under the influence of drugs but this self-induced. I do not think this can be a very good mitigating factor. Of course, if the defendant was deliberately driving the car on the way he did on that day, the court would have no hesitation to pass the maximum sentence, being 3 years' imprisonment, but I accepted the defendant was under some influence of the drug and he must be, otherwise there would be no good reason why he should be driving in such a manner for such a long time or long period on that day. But as I have said, this is a case close to self-intoxication which should not be a very good mitigating factor. Nevertheless, this would be a factor I would take into account.

I will also take into account defendant's background and young age. I understand this is not an excepted offence. The defendant is under 25 years old and I shall not pass an imprisonment term unless it is necessary. But in view of the very serious circumstances of the offences, a term of imprisonment is inevitable. I do not think Drug Addiction Treatment Centre or Detention Centre would be appropriate.

I will adopt a starting point of 2 years for the dangerous driving offence, the 1st charge. I give full credit for pleading guilty and I would also give some reduction in view of the fact that this is the first offence. Defendant is of young age and the principle is that a first imprisonment term should be a short as possible. So, in respect of these, I will give another 4 months reduction, so altogether there will be 12 months remission, so in respect of the 1st charge, I will pass a sentence of 12 months' imprisonment.

And the 2nd charge is really part and parcel of the 1st charge. It would be difficult to expect the defendant to behave sensibly at the time of arrest when he had been driving in such a dangerous manner under the influence of drugs. So I pass a short term, 1 week imprisonment, consecutive to the 1st charge."

The grounds of application

16. This Application for Review is made on the basis that the sentence for the dangerous driving offence was wrong in principle and/or manifestly inadequate; that the judge took a starting point which was too low; that he erred when treating, as evidently he did, the drug factor as a mitigating factor; and that he erred also in allowing a discount for the respondent's previous good character. In relation to the second charge, that of resisting arrest, the contention is that the sentence of one week's imprisonment was manifestly inadequate.

The errors in sentencing

17. We agree that the sentences in each case or in the case of each charge were manifestly inadequate and that the judge, having adopted starting points that were far too low, made further reductions for factors which did not constitute mitigation at all.

18. The maximum term of imprisonment permitted by s. 37 of the Road Traffic Ordinance upon conviction on indictment is a term of three years' imprisonment. There is no question but that the driving offence which we have described, committed by this respondent, fell within the broad band of the worst type of case of dangerous driving which comes before the courts. The judge ought to have taken a starting point of three years' imprisonment.

19. It was then fundamentally wrong in principle for the judge to have countenanced, and given, a discount for the fact that the respondent was under the influence of drugs when he drove. It was not only 'not a very good mitigating factor'; it was not a mitigating factor at all. To the contrary, it was an aggravating factor that this respondent drove whilst under the influence, and heavily so, of drugs. See: R v Boswell [1984] 1 WLR 1047, 1051; and R v Gilmartin [2001] 2 Cr App R (2) 212, 215. Given that it is a criminal offence to drive a motor vehicle under the influence of drugs (see s. 39 Road Traffic Ordinance), it is hardly logical then to say that the effect of drugs is a mitigating factor if, whilst driving dangerously, one does so under their influence.

20. Furthermore, 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. Certainly no further credit should have been given in this particular case for, when having regard to character, one has regard as well to the facts of the offence in question. In a case of a second offence of this kind that would have been a seriously aggravating factor. But 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.

21. There was only one matter in mitigation in this case which was the respondent's plea of guilty. Giving full discount for the plea of guilty, the appropriate sentence for the first charge was a sentence of two years' imprisonment. The sentence imposed by the judge was, with respect, manifestly inadequate. For the avoidance of any possible misunderstanding, we wish to state that we come to this conclusion without any regard whatsoever to the other offence which was committed by this respondent in mid-March 2001 for which he was sentenced only in August this year.

Resisting arrest

22. As for the second charge, we have come to the same conclusion. The judge imposed a sentence of one week's imprisonment for resisting nine officers in the execution of their duty, as a result of which conduct the respondent caused them injuries, even though none seriously. The maximum term for resisting an officer in the execution of his duty is one of two years' imprisonment. The sentence to be imposed for such cases must carry a heavy deterrent element, for it is vital that those engaged to execute police duties are enabled properly to do so. What the offence will draw in terms of sentence will, as with all offences, depend on the circumstances. Acts which constitute the execution of duty will vary, and so will the forms of resistance to the execution of such acts, and it will help little to attempt a panoply of examples. It suffices to say that in this case the duty of the officers which they were seeking to execute was to effect an arrest in a serious case; and the resistance offered was violent, and one which occasioned injury to several of the officers. One week's imprisonment for that sort of conduct is manifestly inadequate. The correct starting point for the respondent's conduct was a term of 18 months' imprisonment. He pleaded guilty, so the term imposed should have been one of 12 months' imprisonment. The judge said that the second charge was part and parcel of the first. But the second offence was a separate matter; it was not part and parcel of the first at all. It is one thing to drive dangerously; quite another to behave violently when approached by police officers after the driving episode is over. Subject only to the question of the appropriate totality, to which we shall shortly come, the sentences should be consecutive. Where the judge said that "it would be difficult to expect the defendant to behave sensibly at the time of arrest when he had been driving in such a dangerous manner under the influence of drugs", that was an approach which was also, with respect, in error. It is a sentiment that will come as small comfort to law enforcement officers, and is an extension of the judge's error in treating the influence of drugs in the driving case as a mitigating factor.

Result

23. The total sentences for the two offences which we consider appropriate comes to three years' imprisonment. We do not regard that as too great a totality. We see no reason in this particular case not to exercise our power under s. 81B of the Ordinance to substitute these sentences. Nor do we think it appropriate in this case to reduce the terms because this is a review. Accordingly, we allow this Application for Review, and set aside the sentences imposed by the judge. We substitute for Charge 1 a sentence of two years' imprisonment and, for Charge 2, a sentence of 12 months' imprisonment to run consecutively; a total of three years' imprisonment.

24. Whilst the period of disqualification is not specifically attacked, sentence in an Application for Review is at large and we are satisfied that the disqualification imposed in this case was also wholly inadequate. This respondent has demonstrably shown himself to be a menace to pedestrians, and to the driving public and their passengers. We set aside the disqualification of two years, and substitute it by one of five years.

25. Our attention has been drawn to the fact that on 16 August 2001 the respondent pleaded guilty in the magistrate's Court to two offences committed by him on 15 March 2001, that is, three weeks prior to the offences to which this Review relates. We have already referred to the failure to bring these two cases together. On 16 August the magistrate, aware of the sentence passed in June in the District Court case, imposed a term of four months' imprisonment for the driving offence, an offence of being in charge of a motor vehicle under the influence of drugs, and one week consecutive for assaulting a police officer in the execution of his duty. He ordered two months of the four month sentence to run consecutively to the sentence imposed in the District Court case, and the one week sentence for assault to run consecutively to the term imposed for the second charge in the District Court case. The orders we make today do not affect the magistrate's orders, which are not the subject of this Review.

26. We do not comment on the adequacy of the August sentences. We can but speculate that had the matters been heard together the judge in the District Court was likely to have taken a less benevolent view than the one he did. That said, we make clear our view that, with the information which the judge had, his sentences were in any event far too lenient, and that the sentences which we substitute have no regard to information not before the District Court Judge.

A possible inadequacy in the maximum term

27. We take this opportunity to say something about the maximum term allowed to the courts for cases of dangerous driving, namely, three years' imprisonment, a maximum which will, even in the very worst cases, permit a sentence of but two years' imprisonment upon a plea of guilty, assuming the usual discount for such a plea. So dangerous and wicked was the driving in this case, so threatening to public safety and to the safety of police officers, who are there to protect other drivers from such conduct, that the maximum permitted is a constraint which might be thought to be contrary to the public interest. One wonders, when the term of three years was set as the maximum for dangerous driving, whether the legislature had in mind cases such as the present.