SECRETARY FOR JUSTICE v. CHAN HON HOI

CAAR 8/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 8 OF 2007

(ON APPEAL FROM DCCC NO. 365 OF 2010)

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J U D G M E N T

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

Introduction

1.  The respondent, Chan Hon-hoi, a taxi driver by occupation, was involved in a traffic accident on 2 January 2010 at Cornwall Street near Beacon Hill Road when his taxi (KC 8863) rammed into a lamp pole. The accident occurred at 3.20 p.m. when the weather was fine and the road surface was dry.  There was no braking mark.

2.  The respondent was trapped in the driver’s seat. When questioned, he could not recall how the accident occurred and he spoke incoherently. The respondent was sent to the Caritas Medical Centre for examination and was found to have traces of white powder in his left nostril. The doctor, suspecting that the respondent was under the influence of drugs, took samples from his nostril and sent them for test. The samples were found to contain 0.01 g of ketamine.

3.  The respondent was placed on bail pending investigation into the cause of the accident.

4.  Eighteen days later, on 20 January 2010, the respondent, driving another taxi (KH 5472), picked up Ms Tseung and her friends at Hunghom Railway Station, and was heading for a nearby hotel. The respondent behaved erratically, stopping when the traffic light was green and driving off when it was red.

5.  Ms Tseung and her friends were so alarmed by the respondent’s behaviour that they decided to get off the taxi before arriving at their destination. When Ms Tsung was waiting for the change in the front passenger seat, having given a $100 note to the respondent, he drove off without warning. Ms Tseung was so scared that she immediately jumped off the taxi, which then hit the railings of the pavement.

6.  The police officer who arrived at the scene found the respondent slow in response and speaking incoherently. When arrested and cautioned for driving under the influence of drugs, the respondent admitted that he had inhaled ketamine the night before, but denied inhaling it when he was working.

7.  The respondent was sent to Queen Elisabeth Hospital for examination and his blood sample was found to have ketamine at a level of 0.07 ug/ml.

The Respondent’s Background

8.  The respondent is about 30 and single. He had been a taxi driver since 2007 and within less than three years, he had accumulated not less than 35 traffic offences. He had been disqualified on four occasions under the points system in about 14 months. The respondent also had five previous criminal convictions, including three for possession of a dangerous drug. On 8 September 2009, the respondent was sentenced to 14 days’ imprisonment suspended for 12 months for an offence of possession of a dangerous drug.

The Charges and the Sentences

9.  The respondent was charged with two counts of driving a motor vehicle under the influence of drugs (the 1^st and 2^nd charges), and two corresponding charges of inhaling a dangerous drug (the 3^rd and 4^th charges).

10.  On 13 May 2010, the respondent pleaded guilty to all four charges before Judge Geiser in the District Court. For the 1^st and 2^nd charges, the judge adopted starting points of 12 months and 15 months respectively, and for the 3^rd and 4^th charges, the judge adopted a starting point of 6 months. The judge reduced the starting points by one-third on account of the guilty pleas to 8 months, 10 months and 4 months respectively.

11.  The judge ordered the 8-month and 10-month sentences to run consecutively, but concurrently with the 4-month sentences on the 3^rd and 4^th charges, resulting in a total sentence of 18 months’ imprisonment. The judge ordered the 14-day suspended sentence imposed on the respondent on 8 September 2009 for possession of a dangerous drug to run consecutively to the 18 months’ imprisonment. The judge also ordered a disqualification period of 1 year for each of the 1^st and 2^nd charges to run consecutively, making a total disqualification period of two years.

The Application

12.  With leave of Chief Judge of the High Court, the applicant, the Secretary for Justice, asks this court for a review of the sentences imposed on the respondent under s 81A of the Criminal Procedure Ordinance.

13.  It is the applicant’s contention that the sentences imposed on the respondent are not appropriate and are not commensurate with the gravity of the offences, and that the two-year disqualification period was too short.

14.  Mr Alex Lee, for the applicant, emphasizes that the respondent, as a professional taxi driver and a frequent user of the roads serving the public, must be acutely aware of the importance and the necessity to be safe and not to risk people’s lives and safety. Mr Lee suggests that the respondent’s irresponsible behaviour endangered the safety of his passengers and other road users.

15.  Mr Lee points out that in both accidents, the respondent’s taxis had rammed into barriers at the road side and it was pure luck that no one was injured.

16.  Mr Lee, relying on R v Cooksley & Ors [2003] 3 All ER 40 at p 54, emphasizes that the main purpose of disqualification is “forward looking and preventive rather than backward looking and punitive”, and therefore when the disqualification period is ordered to run concurrently with the term of imprisonment, its preventive effect is limited.

17.  Referring to s 39 of the Road Traffic Ordinance Cap 374, Mr Lee submits that the conviction on the 2^nd charge should be considered as a second or a subsequent conviction, which attracts a period of disqualification of not less than two years, and therefore the disqualification period of only one year imposed by the judge for the 2^nd charge is not lawful. Mr Lee concedes, however, that there should not be consecutive periods of disqualification.

The Respondent’s Position

18.  Mr Victor Ho, for the respondent, points out that the maximum sentence for the offence of driving under the influence of drink or drugs is only three years and that at the time of the offence, namely 2 and 20 of January 2010, there was no indication that the offence was prevalent.

19.  Mr Ho emphasizes that the law makes no distinction between illegal and prescribed drugs, and does not state any legal limit for drugs, and that there is no provision requiring drivers to submit to preliminary tests, to give blood or other body fluid samples for analysis. Mr Ho suggests that a charge of driving under the influence of drugs is difficult to prove and therefore the respondent deserves greater credit for pleading guilty to the charges.

20.  Mr Ho points out the following mitigating factors:

1.  There was no personal injury or death involved in both incidents;

2.  The respondent himself suffered injuries in the 1^st incident;

3.  The respondent has no previous similar conviction;

4.  The respondent’s plea of guilty to all charges;

5.  There was no serious aggravating features such as speeding, car racing, furious driving manner, prolonged driving, etc; and

6.  There was no evidence that the respondent was a drug addict.

21.  Mr Ho suggests that there is no expert evidence to prove the effect of ketamine on driving and the cases on sentences of dangerous driving relied on by the applicant are of limited assistance.

22.  Mr Ho argues that the sentence imposed on the respondent is not manifestly inadequate or wrong in principle. Mr Ho accepts that the conviction on the 2^nd charge should be treated as a second or subsequent conviction, but argues that the total disqualification period of two years, on the facts of the case, needs not significantly exceed the terms of imprisonment.

Discussion

23.  Vehicles, in the hands of irresponsible drivers, can be lethal weapons as demonstrated by the catastrophic consequences of serious traffic accidents. Such accidents, not only cause damage to property, resulting in huge financial losses, but can also kill and/or maim, leading to untold misery to the victims and their family members. It is important to impress upon drivers the gravity of the consequences which can flow from their irresponsible manner of driving.

24.  Driving is a very complex skill determined by changes in physical, emotional and mental conditions all of which can be impaired by the use of drugs. Drugs also impair motor coordination skills and judgment, rendering a driver incapable of driving responsibly and safely. Driving under the influence of drugs is a clear danger on the roads and must be deterred in order to protect the public at large.

25.  In many ways, driving under the influence of drugs can be more serious than dangerous driving. Under s 37(4) of the Road Traffic Ordinance, Cap 374, a person is to be regarded as driving dangerously “if (a) the way he drives falls far below what could be expected of a competent and careful driver; and (2) it would be obvious to a competent and careful driver that driving in that way would be dangerous.” Dangerous driving could be established by a momentary lapse of concentration or a single act of error of judgment.

26.  On the other hand, when someone sets out to drive whilst under the influence of drugs, he must be aware, at the outset, of the risk associated with his driving. It can be a deliberate anti-social and dangerous act, and not just a spontaneous irrational one.

27.  Drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence. The maximum sentence of three years’ imprisonment may not be adequate in a bad case of driving under the influence of drugs.

28.  We have to say this is a very bad case of the type. It was not a case of unwittingly consuming drugs. The respondent was not under the influence of prescription or non-prescription over-the-counter medications, or herbal drugs that the effect of which might not be fully and readily appreciated. The respondent took an illegal substance – ketamine before he started driving.

29.  As revealed from his criminal record, the respondent was a drug abuser and he must be aware of the effect of ketamine, yet he decided to drive a taxi after consuming it and when he was still under its influence, not once, but twice, and on the second occasion whilst he was on bail in respect of the first one. In so doing, he put innocent people’s lives at risk without thinking of the consequences.

30.  From the nature of the accidents and the respondent’s post-accident behaviours on both occasions, the respondent must have been so overwhelmed by the effect of the ketamine he took that he could not properly drive a taxi on a busy road in Hong Kong. There was no need for an expert to prove the effect of ketamine in the present case as the facts clearly showed that the respondent was under a very high level of intoxication.

31.  The respondent was arrested on 2 January 2010 for driving under the influence of drugs and was placed on bail pending investigation. He drove under the influence of drugs again just over two weeks later. What the respondent did was an affront to the law and a blatant disregard for public safety. It was indeed pure luck that no one was injured in both accidents.

32.  With respect, the mitigating factors identified by Mr Ho hardly reduce the respondent’s culpability. If there had been death, or other aggravating features involved, there would have been much more serious charges.

33.  Driving under the influence of drugs is an issue of growing concern world-wide. There is an indication that drug-driving problem is also becoming prevalent in Hong Kong according to the report issued by the Transport and Housing Bureau in July 2010. Such offence must be nipped in the bud. Drivers, particularly professional drivers, must be deterred from risking people’s lives and safety.

34.  We are satisfied that the sentences imposed upon the respondent were unduly lenient and fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate (per Lord Lane CJ in A G’s Reference No 4 of 1989 [1990] 1 WLR 41 at 46A). We are satisfied that this case calls for a starting point close to the maximum sentence of three years.

35.  Bearing in mind that this is a sentence review and there has not been previous warning that the court will take a serious view of the offence of driving under the influence of drugs, we think the appropriate starting points for the 1^st and 2^nd charges of driving under the influence of drugs are 2 years and 2½ years respectively.

36.  The starting points will be reduced by one-third on account of the pleas of guilty to 16 months and 20 months. The respondent is sentenced to 16 months and 20 months’ imprisonment in respect of the 1^st and 2^nd charges of driving under the influence of drugs with 10 months on the 1^st charge to run consecutively to the 20 months on the 2^nd charge, making a total sentence on those two charges of 30 months’ imprisonment. The 4-month sentence on the 3^rd and 4^th charges will be concurrent with the other sentences, but the 14 days’ activated sentence will be consecutive to the 30 months, making a total sentence of 30 months and 14 days.

37.  The main purpose of disqualification is forward looking and preventive (see R v Cooksley & Ors [2003] 3 All ER 40 at p 54 f-h as approved in S for J v Hung Ling Kwok [2010] 4 HKLRD 365 and S for J v Liu Kwok Chun, unreported CAAR 3/2009 and CACC 34/2009).

38.  The judge should not have imposed consecutive disqualification periods, but the total disqualification period of two years is any event not adequate. We are persuaded that the applicant should be kept off the road for a longer period in order to protect the lives of other innocent road users. In our view, the respondent should not drive again after the disqualification period until he passes a test of competence to drive under the Road Traffic Ordinance, Cap 374.

39.  We order a disqualification period of 3 years on the 1^st and 2^nd charges with a re-test requirement.

Conclusion

40.  We allow the application for a review of sentence. We increase the total sentence on the respondent from 18 months and 14 days to 30 months and14 days. We also increase the total disqualification period from 2 years to 3 years for each of the 1^st and 2^nd charges to run concurrently with an additional order under s 70 of the Road Traffic Ordinance Cap 374 that the respondent should not drive again after the disqualification period until he passes a test of competence to drive. In view of the re-test requirement, we set aside the order requiring the respondent to attend and complete a driving improvement course under s 72A (1A) of the Road Traffic Ordinance Cap 374.