HKSAR v. SIU YAT PING

HCMA 448/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 448 OF 2011

(ON APPEAL FROM KCCC 1933/2011)

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JUDGMENT

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Background

1.  The appellant was convicted on his own pleas of :

Charge 1 : driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap. 374 and

Charge 2 : using a vehicle without third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272.

He was sentenced as follows :

Charge 1 : 6 weeks’ imprisonment and disqualification for 15 months; and

Charge 2 : 2 weeks’ imprisonment and disqualification for 15 months.

The magistrate ordered the sentences for both charges to run concurrently, making a total sentence of 6 weeks’ imprisonment and disqualification for 15 months.

2.  The appellant appeals against the sentences imposed.  When the appeal was heard, learned Counsel for the appellant, Mr John Murray, informed the court that the concern in this appeal is only with the imprisonment term not the disqualification order.

Facts

3.  The facts admitted by the appellant may be summarised as follows.

4.  The appellant drove a private car along the eastbound carriageway of Man Tak Street, Hung Hom, attempting to turn left to Man Tai Street (with a No Entry traffic sign) and then veering back into Man Tak Street.  Under caution, the appellant admitted that he knew he was driving while disqualified.  He was also using the vehicle without third party risk insurance. 

Antecedent of the appellant and mitigation

5.  The appellant is 28 years old.  He runs businessboth in the mainland and Hong Kong.  His company had 20 to 30 staff. 

6.  At trial, it was mitigated on his behalf that he had committed the offence out of stupidity.  He was to meet a friend who was in low mood.  He had been waiting for a taxi but to no avail.  For convenience sake he drove.  It was said the appellant was remorseful.  It was also so stated in the background report.

Grounds of appeal

7.  In the Perfected Grounds of Appeal, Mr Murray submitted that the sentences were manifestly excessive, for the following reasons :

“(1) The appellant committed the offence as he wanted to meet a friend who was in low mood.

(2) The offence was committed on 4 April 2011 shortly before the period of disqualification was to be completed namely 6 April 2011.

(3) This was not a case of driving whilst disqualified involving bad driving by the appellant. The appellant was stopped by the police for a verbal warning and no other vehicle was affected by the appellant’s driving.

(4) The appellant admitted the offences on arrest and pleaded guilty.

(5) According to the background report the appellant showed verbal remorse.

(6) The appellant spent fourteen days in remand pending the preparations of a background report prior the sentence. The fourteen days imprisonment was sufficient imprisonment.

(7) The learned magistrate erred in not adequately considering whether to suspend the sentence of imprisonment in all the circumstance of the case.

(8) As the learned magistrate called for a report, community service should have been considered.”

Discussion

8.  Items (1)-(6) in the Grounds of Appeal had been put forward as mitigation during the trial.  In his Reasons for Sentence, the magistrate demonstrated that he had carefully considered each of the matters.  

9.  Before sentence, the magistrate obtained a background report.  It was reported that the appellant had expressed verbal remorse and the magistrate had taken note of it.

10.  The magistrate considered, correctly in my view, that driving while disqualified is a very serious offence.  He cited HKSAR v Ng Suen-wai HCMA375/2003, in which Madam Justice Beeson pointed out :

“Given the serious consequences of breaches of disqualification orders, it is clear that magistrates should consider sentences of imprisonment for all breaches of disqualification, unless very exceptional circumstances exist.”

11.  The magistrate noted that despite the appellant did not have any conviction record in driving misdemeanours, he considered his attitude towards driving very poor.  He noted that despite the appellant had been ordered to attend driving improvement courses in 2010, he seemed not to have improved his attitude and drove when he was disqualified.  Having perused the conviction record, I am of the view that the driving record of the appellant is far from satisfactory.  He had been fined for using an unregistered/unlicensed vehicle, careless driving, failing to stop after accident, speeding, and failure to comply with traffic signals.

12.  In my judgment, the magistrate was justified in finding that the appellant had flagrantly breached the disqualification order and there were no exceptional circumstances in existence, which made suspending of the imprisonment term or imposing of a community service order justifiable. 

13.  In HKSAR v Ng Suen Wai, Madam Justice Beeson observed that “‘flagrant’ is used to mean ‘blatant’ in the sense of obvious and deliberate, by Magistrates and Judges who have used the term.”

14.  The purpose of the driving was to visit a friend.  Even if it was out of good intent there was no urgency.  It was a deliberate disregard of a court order.  Entering a road where entrance was prohibited, notwithstanding only briefly, showed the appellant’s lack of care in driving.  Even though the driving took place only 3 days before expiration of the order, in the circumstances of the case it was not a factor which justifies departure from the sentencing norm. 

15.  In HKSAR v Chan Chuk Hon HCMA623/2005, Deputy High Court Judge D. Pang (as he then was) noted that “if the breach was flagrantly committed and there was no operative factor to diminish culpability, then an immediate custodial sentence should be imposed even if the offender has never before suffered imprisonment”. 

16.  In all the circumstances of the case, I agree with the magistrate that an imprisonment term should be imposed.  The starting point of 9 weeks as adopted by the magistrate is well within the normal range for a case of this nature and facts.  Adequate discount had been given for the guilty plea.

17.  There were insufficient special circumstances which justify suspending the imprisonment terms. 

18.  I note that the appellant is not a person without criminal conviction record.  He had been convicted on 2 occasions, for a total of three offences.  In February 2002, he was ordered to work 120 hours of unpaid work under a Community Service Order for an offence of Theft.  Of course, the appellant should only be sentenced for the present offence, in all the circumstances I am not surprised that the magistrate did not consider him a suitable candidate for a Community Service Order.

19.  In my judgment, the sentences imposed are neither wrong in principle nor manifestly excessive.  Even though the appellant had been remanded in custody for 14 days for preparation of the background report, no sufficient reasons had been advanced so that I should interfere with the sentences.

20.  The appeal against sentences is dismissed.