HKSAR v. FUNG KA WAI ROGER

CACC 81 & 136/2024, [2026] HKCA 979

On Appeal From [2024] HKDC 510 & [2024] HKDC 980

(Heard together)

CACC 81/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 81 OF 2024

(ON APPEAL FROM DCCC NO 102 OF 2023)

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AND

CACC 136/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 136 OF 2024

(ON APPEAL FROM DCCC NO 578 OF 2023)

________________________

________________________

(Heard together)

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J U D G M E N T

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The Court:

1.  Since there are certain overlapping issues between the two appeals, the Court directed, on 17 October 2025, that CACC 81/2024 (which had initially been listed to be heard on 28 November 2025) should be heard together with CACC 136/2024 on 18 November 2025.

2.  The appellant in CACC 136/2024 (“Chow”) pleaded guilty in the District Court before Deputy Judge KH Cheang (“the deputy judge”) to no less than 15 driving and motor vehicle offences, including inter alia two charges of using a motor vehicle without third party insurance[1] and two charges of driving whilst disqualified[2]. The deputy judge imposed on Chow an overall sentence of 67 months’ imprisonment and a total disqualification period of 7 years. With leave of the Single Judge, Chow appeals against the driving disqualification order only.

3.  The appellant in CACC 81/2024 (“Fung”) pleaded guilty, also in the District Court, before HH Judge A N Tse Ching (“the judge”) to a charge of dangerous driving causing grievous bodily harm[3], a charge of dangerous driving[4] and two charges of failing to stop after accident[5]. The judge imposed on him a total sentence of 51½ months’ imprisonment and a total disqualification period of 5 years (or until he had passed the test of competence to drive, whichever is the later). With leave of the Single Judge, Fung appeals against his sentence as well as his disqualification order.

The essential facts in CACC 136/2024

4.  At about 8:20 am on 21 September 2022, Chow, together with a co-defendant, attempted to steal a private car in Yuen Long. Chow was, however, discovered by the vehicle’s owner before he was able to drive the car away. He thereupon fled the scene (with his co-defendant) and escaped in another car driven by himself. At the time of the offences, Chow was disqualified from driving and both cars were without valid third party insurance. A pair of charges, namely, using a motor vehicle without third party insurance and driving whilst disqualified were laid against him in respect of each vehicle.

5.  Chow received a first disqualification period of 3 years in respect of the two charges of using a motor vehicle without third party insurance, and a second disqualification period of 4 years in respect of the two charges of driving whilst disqualified. Pursuant to the specific requirement of section 44(3) of the RTO, the deputy judge made the second disqualification in addition to the first disqualification, ordering it to run from the date of conviction (which is also the date of the order), resulting in an overall period of 7 years’ disqualification.

The essential facts in CACC 81/2024

6.  In the evening of 13 April 2022, Fung parked his car near a restaurant in Yau Ma Tei. After dining with his colleagues, he drove the car out of the parking space nearby, with one of his colleagues in the front passenger seat while others were still walking slowly along the pavement away from the restaurant. Fung suddenly accelerated his vehicle, whereupon it swerved right onto the pavement, and then back onto the roadway, striking three of his colleagues and causing grievous bodily harm to two of them in the process. Instead of stopping his car, Fung then sped away from the scene.

7.  At about 1:20 am and some 1.3 km away from the first scene, Fung collided his car with a stationary taxi at the red traffic lights, causing the taxi serious damage. Again, he did not stop and accelerated away from the second scene. His car was subsequently discovered on Austin Road after a third accident in which he hit two trees and a signpost and came to rest.

8.  The judge adopted a starting point of 6 years’ imprisonment (the maximum sentence being 7 years’ imprisonment) for the charge of dangerous driving causing grievous bodily harm (Charge 1); 3 years’ imprisonment (which is the statutory maximum sentence) for the charge of dangerous driving (Charge 3); and 12 months’ imprisonment (which is the statutory maximum sentence) for each of the charges of failing to stop after an accident (Charges 2 and 4). She gave Fung a 20% discount of the starting points for his pleas tendered shortly before the commencement of trial. She also gave him a further reduction of 6 months on Charges 1 and 3 in recognition of the injuries he himself had suffered in the incidents.

9.  The resulting sentences, which the judge ordered to run wholly concurrently with each other, were as follows:

(i)  Charge 1: 51.6 months imprisonment, rounded down to 51½ months’ imprisonment

(ii)  Charge 2: 9.6 months’ imprisonment

(iii)  Charge 3: 22.8 months’ imprisonment

(iv)  Charge 4: 9.6 months’ imprisonment

10.  The judge also ordered that Fung be disqualified from driving for 4 years in respect of Charge 1, and 1 year in respect of Charge 3, which periods of disqualification she ordered to run consecutively to each other as from the date of conviction or until he passes a driving competency test, whichever is the later.

The basis of granting leave in each case

11.  In CACC 136/2024, the Single Judge[6] granted leave to appeal the disqualification order on the basis that a 3-year and 4-year consecutive disqualification period in respect of the pair of charges concerning driving whilst disqualified may have led to an excessive overall disqualification period of 7 years, noting also an argument which had been conceded by the respondent as to the proper interpretation of section 44(3) of the RTO when read together with section 4(2)(b)[7] of the Motor Vehicles Insurance (Third Party Risks) Ordinance.

12.  As to CACC 81/2024, although Fung, who acted in person, did not advance any specific argument himself, the Single Judge[8] considered there was a reasonable argument as to whether there was jurisdiction to order consecutive disqualification periods in a general sense, and in the particular circumstances of the present case. He was also concerned with the appropriateness and efficacy of the 1-year disqualification period for the charge of dangerous driving, which was less than the individual sentence of 3 years’ imprisonment, and whether the judge should have made an order in terms of section 72A of the RTO. He further considered that it was reasonably arguable that the starting point for each of the offences was too high, thus arguably leading to an excessive overall period of imprisonment.

Consecutive disqualification periods

(The arguments of the parties)

13.  A common argument in both appeals is that the judge and the deputy judge wrongly imposed on each respective appellant consecutive disqualification periods in respect of the charges of using a motor vehicle without third party insurance and driving whilst disqualified (in the case of CACC 136/2024); and the charges of dangerous driving causing grievous bodily harm and dangerous driving (in the case of CACC 81/2024).  

14.  Ultimately, the respondent submitted that the overall disqualification period could not be impugned as excessive (in the case of CACC 136/2024) and should have been even higher (in the case of CACC 81/2024): the consecutive disqualification periods should be substituted with wholly concurrent disqualification periods, which should then exceed the term of imprisonment and run from the date of the order. The respondent also submits that the period of disqualification made under section 44(2) of the RTO should be in addition to the period of disqualification made under section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance by virtue of the deeming provision in section 4(2)(b).

Discussion (disqualification order)

15.  A person may (and in some cases, shall) be disqualified from driving when he is convicted of a relevant offence. The power to impose a disqualification order may stem from (i) the offence-creating provision itself (such as section 4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance and section 44(2) of the RTO, in the case of CACC 136/2024); (ii) a conviction of the offences provided under section 69 of the RTO[9]; or (iii) a second or subsequent conviction of a “relevant scheduled offence” pursuant to section 69A of the RTO[10].

16.  As with the general principle that a court’s order should take effect from the date it is made, unless otherwise stated, a disqualification order should also run from the date it is made: see HKSAR v Yu Chi Chiu[11]. An exception is provided, for example, under section 69A(2) of the RTO, which stipulates that a disqualification period made under that section shall not commence to run until after the completion of any term of imprisonment or detention to which he/she is subject at the time of the order.  

17.  All of the offences in CACC 81/2024 were RTO offences in connection with the driving of a motor vehicle, within the meaning of section 69(1)(a) of the RTO, thus allowing the court to order disqualification for such period as it thought fit. As Fung had a clear record, none of the present convictions was a second or subsequent conviction of a “relevant scheduled offence” (although the present offences themselves fell within the meaning of a “relevant schedule offence”). The power under section 69A of RTO was not therefore triggered and both disqualification periods should therefore have run from the date of the order. Under the statutory regime, there was no jurisdiction to order any of the disqualification orders to run from a future date.

18.  The fact that two or more disqualification periods are ordered to run from the same date may also give the impression that they are concurrent disqualification periods. By contrast, save and except section 44(3) of the RTO, it seems that there is no express power under other statutory provisions empowering the court to impose wholly (or partly) consecutive disqualification orders. Section 44(3) provides that:

“The period of any disqualification under subsection (2) [i.e. an offence of driving whilst disqualified] shall be in addition to any other period of disqualification ordered under any other provision of this Ordinance.

19.  There has, however, been a competing line of local appellate authorities as to whether two disqualification periods should be made wholly concurrent, or wholly consecutive. Although the focus of that debate has been on the interplay between the respective disqualification periods ordered for the offences of driving whilst disqualified and driving without third party insurance only, the argument seems to have attempted to lay down an approach to disqualification orders generally. In R v Lau Hon Tung[12], for example, in reliance on the general sentencing principle that “[i]t is a practice of the court to pass concurrent sentences for two offences arising out of the same facts”, Ryan J concluded that “the magistrate was wrong to impose consecutive disqualifications”. Lau Hon Tung was subsequently followed in R v Tang Sik Hung[13], in which Leong J (as he then was) commented that “[w]ithout the statutory power existing in s.44(3), all disqualifications were concurrent.”[14]  However, Lau Hon Tung and Tang Sik Hung were not followed in HKSAR v Tsui Wai Nin[15], where McMahon J upheld the wholly consecutive disqualification periods given for the same charges and said that:

“Any views expressed in those judgments as to the operation of s 44(3) being restricted to making periods of disqualification imposed under s 44 be in addition only to pre-existing orders for disqualification are plainly obiter.”

20.  Although both are part of the sentencing process, there is perhaps a distinction between passing a term of imprisonment and ordering a period of disqualification on a defendant. However, a disqualification order should not be seen as double punishment but as part of the overall penalty considered appropriate by the legislature for persons who break the road traffic laws: see HKSAR v Lee Wai Ping[16]. As a matter of principle, a disqualification order was said in R v Cooksley[17] to be forward-looking and preventative rather than backward-looking and punitive. As distinct from a term of imprisonment, in which case a sentencing court should always stand back and look at the total sentence to ensure that it is not out of proportion to the defendant’s overall criminality, a disqualification order should be sufficiently preventative in order to safeguard and protect other road users. A disqualification period may, therefore, be ineffective or serve no useful purpose if it is shorter than the actual prison sentence passed (assuming that the defendant is entitled to a one-third remission for good behaviour: see HKSAR v Wong Kwok Leung[18]).

21.  The calculation of a total disqualification period, however, becomes complicated where multiple disqualification periods are ordered at the same time, and where their effective dates may vary in accordance with different governing provisions. That said, as noted above, the actual effect of a disqualification period will begin when a person is discharged from prison. It follows that when considering the length of a disqualification period, or of an overall disqualification period, instead of focusing on the mechanics by which it is reached, the Court of Appeal will always ask itself whether the length of the disqualification to which a defendant is subject after he is discharged from prison is a reasonable one, in particular with regard to the considerations set out in Cooksley at [40] to [44]. The individual disqualification period should conform with the statutory minimum requirement and commence from the date as prescribed.

22.  It may well be that the legislative intention underlying section 44(3) of the RTO was to put a defendant off the road for a longer period in addition to the disqualification period ordered for the other offence(s). However, the problem presented by section 44(3) is that, if it is a mandatory requirement that the stipulated minimum disqualification period made under section 44(2) must be consecutive to any other disqualification period ordered, it would result in a rigid minimum addition of 3 years’ disqualification (for a second or subsequent conviction) on top of what the court might otherwise consider a reasonable overall disqualification period. Moreover, there will be no certainty as to the expiry of the disqualification period based on the driving whilst disqualified offence itself, because it will be deferred to run from a date based on the effective date (and expiry date) of the anchor disqualification, which may begin to run from the date it is made, or the date after the existing term of imprisonment is fully served (in a section 69A situation). The issue is further complicated if there are two, rather than one, “other period(s) of disqualification ordered under any other provision of this Ordinance”, with one to run from the date of the order, and the other to run from the date of discharge (which would presumably result in a longer period). The question arises as to which of these two periods is the one which the disqualification order made under section 44(2) “shall be in addition to”?

23.  Even if a rigid interpretation should apply to section 44(3), it may not serve its effect, which can be neutralised by way of a judge or magistrate invoking his discretionary power under section 44(2) to impose a shorter disqualification period before ordering it to run in addition to the other disqualification period.

24.  We noted the respondent’s reliance on the Court of Final Appeal decision in HKSAR v Choy Yuk Ling[19] in support of its contention that even if the word “shall” is used in a statutory provision, it may not be absolute. Given the analysis above, we consider that no rigid interpretation should be given to the word “shall” in section 44(3).

The sentence in CACC 136/2024 

25.  In the case of Chow, we are alive to his persistent and appalling criminal record; in particular, that he has been disqualified from driving on no less than seven previous occasions. Amongst his six similar previous convictions for driving whilst disqualified, he was, in the case of his first conviction, disqualified from driving for 12 months in accordance with section 44(2)(a); and in each of the cases of his second, third, fourth and fifth convictions, disqualified from driving for 3 years. With regard to his last conviction of driving whilst disqualified, for which he was sentenced on 7 January 2022, the disqualification period was increased to 3½ years, which nevertheless appears to us to have had little deterrent effect on the appellant. The actual effect of the present 7-year disqualification order, which was imposed on two pairs of offences of using a motor vehicle without third party insurance and driving whilst disqualified, and which the judge ordered to run from the date of his conviction, namely 17 June 2024, is that Chow is disqualified from driving for 4 years and 11 months when he comes out of prison, assuming that he is entitled to a one-third remission for good behaviour whilst in prison.

26.  In our view, Chow deserved to be taken off the road for a significant period of time so as to afford some protection to the public. The actual effect of the disqualification period, which is some 2 years more than the minimum 3-year disqualification period (save and except for special reasons) in the case of a subsequent conviction of driving whilst disqualified alone, cannot be considered excessive.

27.  Accordingly, we dismiss the appeal of Chow in CACC 136/2024.

The sentence in CACC 81/2024

28.  Since this appeal involved both a complaint about the overall term of imprisonment and the period of disqualification, it is necessary to elaborate on the facts, which underlay his sentence. On the evening of 13 April 2022, at approximately 11:40 pm, the appellant Fung had arrived at the 218 Hotpot Restaurant located at 4-6 Tak Hing Street, Yau Ma Tei for a dinner celebration with his colleagues. His colleagues had been at the restaurant since 7:30 pm the same evening and had evidently consumed a significant amount alcohol.

29.  At 1:13 am on 14 April 2022, PW3 and PW5 left the restaurant and stood outside. At 1:15 am, Fung and PW1 also left the restaurant. Fung boarded the driver’s seat of his Mercedes Benz motor car, which he had earlier parked outside the premises, in a built-up area of Kowloon, while PW1 boarded the front passenger seat of the vehicle.

30.  About a minute later, the remaining people at the dinner celebration left the restaurant, and walked down Tak Hing Street away from the appellant’s car. Having then manoeuvred out of his parking space, Fung accelerated his car along Tak Hing Street, before swerving onto the right-hand pavement striking PW3 and PW4 from behind.

31.  Fung then swerved his vehicle back onto the roadway, striking PW2. The two collisions caused grievous bodily harm to both PW2 and PW3. PW2’s injuries included a fractured skull, bleeding in the brain and the loss of 6 teeth. PW3’s injuries included a deformed and fractured right ankle and left fibular shaft fracture. It was fortuitous that PW4 only suffered minor injuries, and although he was not hospitalised, he was given 4 days’ sick leave.

32.  Fung thereafter did not stop his vehicle at the scene, and drove away after the two collisions. These facts formed the basis of the first incident.

33.  About 1.3 kilometres from the location of the first incident and a few minutes later, at 1:20 am, Fung drove at speed into the back of a stationary taxi driven by PW9, which was stopped at a red light at the junction of Austin Road with Nathan Road. This collision caused PW9 to be hospitalised with chest pains, although he was discharged later on the same day.

34.  The appellant’s car was badly damaged, yet he still did not stop and again accelerated away from the scene. These facts formed the basis of the second incident.

35.  The appellant’s car was discovered shortly afterwards at Austin Road (eastbound) near Chatham Road South next to two damaged trees and a signpost. PW1 managed to get out of the car and notify the police. He was subsequently found at the scene near Fung, who was at the time unconscious. Both men were admitted to hospital, with various injuries including, in the case of PW1, several broken ribs. A request by police to hospital medical staff for blood samples to be taken from the appellant was declined due to his poor physical condition.

36.  At the time of these various incidents, the traffic conditions were good and the road surfaces were dry.

37.  When passing sentence, the judge made the following findings of fact in the case:

(i)  Fung had embarked on a persistent course of dangerous driving. Absent any explanation for his behaviour, his action was deliberate[20];

(ii)  His conduct was reckless and posed serious consequences for other road users[21];

(iii)  The speed of his car was much higher than appropriate, at least at the time after it had come out of the parking space[22];

(iv)  From the way the victims were struck down, it was obvious that Fung’s driving conduct would cause serious injuries to other pedestrians[23], and endanger people’s lives[24]. As it happened, PW2 and PW4 suffered serious injuries and PW4 was fortunate to have suffered less serious injuries[25]. Had there been a delay in their rescue and treatment, their injuries could well have been extremely serious[26];

(v)  Fung did not stop until after the collision with the trees and the signpost[27]; and

(vi)  Fung’s driving came within the worst category of the type of offences concerned[28].

Respondent’s submissions

38.  The respondent argues that, in view of the aggravating factors considered by the judge in the case of this appellant, his sentence was heavy but not wrong in principle or manifestly excessive. As for the issue of disqualification, it was submitted that, absent any special reasons in the present circumstances, the making of the order and the requirement to attend a driving improvement course could not be impugned.

Discussion (Fung’s sentence of imprisonment)

39.  There is no doubt that the judge took a very strong view of the facts in this case, resulting in her adopting the maximum sentence under the law as the starting points in respect of Charges 2, 3 and 4 and one year short of the maximum sentence in respect of Charge 1. However, as the judge explained[29]:

“The standard of the [appellant’s] driving was wholly appalling and in my view totally unacceptable and must rightly be condemned. The safety and well-being of members of the public in Hong Kong are paramount and the public must be adequately protected from the type of driving the defendant displayed. His driving came within the worst category of the type of offences under consideration. In no other case cited to this court have the facts been so bad.”

We would not necessarily disagree with these sentiments. There were individually four distinct collisions, involving a group of pedestrians on the pavement, a pedestrian in the road, a taxi-driver and two trees and a signpost, at least three of them being potentially life-threatening for the victims, for which there has never been a proper explanation by the appellant. Yet the explanation is obvious: Fung must have been so intoxicated that he was not able to control a powerful vehicle nor was he able to make any rational judgment about what he should do following the first three collisions with the pedestrians and the taxi. Furthermore, apart from the serious injuries caused to other people on the streets, he also placed his passenger, PW1, at serious risk when the vehicle ultimately collided with two trees and a signpost, effectively writing off the car.

40.  However, although the notional sentences after trial were at or near the maximum prescribed by law, the fact is that Fung did indicate his intention to plead guilty by way of a solicitor’s letter to the court some 11 days before the trial was due to commence. That obviously saved the time of both the witnesses, the judge and the court diary in a practical way. The range of discount to be given to a defendant who indicates to the court that he intends to plead guilty after trial dates have been fixed by the District Court but before the first day of trial is between 25% (up to the date fixed for trial) and 20% (on the first day of trial): see HKSAR v Ngo Van Nam[30]. Here the discount was 20%, even though that the formal indication came 11 days before the trial date.

41.  Whilst the level of discount must be a discretionary matter for a judge, there was plainly some utilitarian value in the early formal indication of plea. Given the judge’s view that the maximum, or near maximum, sentence after trial was appropriate, we would expect the judge to balance her view of the facts by sufficiently acknowledging the plea. Otherwise, as has been argued before us, a high starting point discounted by the very minimum reduction the judge could have considered, may lead to an ultimate overall sentence which was “too high” in all the circumstances; and which is acknowledged by the respondent to be “on the high side”.

42.  In our judgment, the overall sentence was manifestly excessive and/or wrong in principle. Accepting the starting points adopted by the judge, we would have granted the appellant a 25% discount for his pleas indicated sufficiently in advance of trial to avoid the waste of court time and resources. Accordingly, accepting the judge’s approach to making all four sentences concurrent and applying a 25% discount, the overall sentence would have been 4½ years’ imprisonment. Acknowledging the further discount of 6 months for the appellant’s own serious injuries and extensive hospitalisation, the overall sentence becomes 4 years’ imprisonment.

43.  Accordingly, in Fung’s case, we will allow the appeal by substituting 48 months’ imprisonment (or 4 years’ imprisonment) for 51½ months’ imprisonment (or 4 years and 3½ months’ imprisonment) on Charge 1; 7 months’ imprisonment for 9.6 months’ imprisonment on Charges 2 and 4; and 27 months’ imprisonment (or 2 years and 3 months’ imprisonment) for 22.8 months’ imprisonment on Charge 3. All sentences imposed by the Court will be ordered to run concurrently with each other, as they were by the judge.

44.  Before departing from the judge’s sentences, we would repeat what was said by the Single Judge when granting leave to appeal, at [2] of his judgment:

“It would have been preferable had the Judge sentenced the applicant according to the year, month or day as the case may be, rather than in months to a decimal point. The general practice when passing a substantial sentence after discounts have been made is to round off the term and state it in years and/or months.”

For that reason, which we endorse, we have rounded the sentences down on Charges 2 and 4 from 7½ months’ imprisonment to 7 months’ imprisonment.

45.  In the result, the appellant Fung’s sentence is reduced from 51½ months’ imprisonment (or 4 years and 3½ months’ imprisonment) to 4 years’ imprisonment. Given that we have reduced the sentence of imprisonment passed on the appellant, we will also consider the length of the disqualification order.

(Fung’s sentence of disqualification)

46.  We have addressed the law in relation to the making of consecutive disqualification orders in respect of Charges 1 and 3. Whilst strictly these were separate offences, they clearly arose out of the same course of conduct lasting just under 10 minutes, which would have justified the court in making all sentences concurrent. Since the sentences of imprisonment should all have been made, and were made, to run concurrently with each other, it may seem somewhat illogical to make the disqualification orders run consecutively to each other.

47.  We are informed that the appellant’s earliest date of release will be 27 January 2027. The 5-year disqualification period would run from the day it was made, which was 27 March 2024, thereby expiring at midnight on 26 March 2029. Given that these series of offences represent a tragic fall from grace on a single occasion by a man in his forties with an unblemished record, we consider that the justice of the case does not require a disqualification of more than 4 years from the date on which it was made. That will be achieved by simply making the orders of 4 years’ and 1 year’s disqualification on Charges 1 and 3 respectively run concurrently with each other.

48.  Accordingly, Fung will be disqualified from driving or holding any form of driver’s licence for a period of 4 years or until he has, after the completion of the 4 years’ disqualification order, passed the test of competence to drive prescribed under the RTO, whichever is the later. Such a continuation of the period of disqualification after he comes out of prison until he has retaken and passed a driving competency test will serve as an adequate reminder of the seriousness of his driving conduct and his responsibilities to the community.