HKSAR v. PANG HO YIN, PATRICK

CACC 283/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 283 OF 2013

(ON APPEAL FROM DCCC NO 1022 OF 2011)

_________________

_________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Barnes J (giving the Reasons for Judgment of the court):

1.  The applicant pleaded guilty to the following 8 charges before HH Judge Douglas Yau in the District Court:

(i) Charge 1 – Dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374(“RTO”);

(ii) Charge 2 – Driving a motor vehicle without a valid vehicle licence, contrary to section 52(1)(a) and (10)(a) of RTO;

(iii) Charge 3 – Using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272;

(iv) Charges 4 and 5 – Assaulting a police officer, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212 (“OAPO”);

(v) Charge 6 – Resisting a police officer in the due execution of his duty, contrary to section 36(b) of OAPO;

(vi) Charge 7 – Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and

(vii) Charge 8 – Failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

2.  The applicant was sentenced to a total of 42 months’ imprisonment for the 8 offences, the particulars of which are as follows:

(i) Charge 1 – 24 months

(ii) Charge 2 – 2 months

(iii) Charge 3 – 4 months

(iv) Charge 4 – 10 months

(v) Charge 5 – 10 months

(vi) Charge 6 – 10 months

(vii) Charge 7 – 12 months; and

(viii) Charge 8 – 4 months.

3.  Although there is some complainant about Judge Yau’s method of ordering these sentences to run concurrently or consecutively to each other (which we will deal with in greater details later on), the effect of the judge’s order was that sentences for Charges 1, 2 and 3 (the driving offences) are to run concurrently, sentences for Charges 4, 5 and 6 (assaulting and resisting offences) are also to run concurrently, but consecutively to the 24 months imposed for the driving offences.  8 months of the 12 months imposed on Charge 7 is to run concurrently with the rest (meaning 4 months to run consecutively with the rest). The 4 months imposed on Charge 8 is to run consecutively with the rest, thus making a total of 42 months’ imprisonment (24 + 10 + 4 + 4).  

4.  The applicant sought leave to appeal against the sentences imposed on Charge 1 (the dangerous driving offence) and Charges 4, 5 and 6 (the resisting and assaulting offences).

5.  At the conclusion of the hearing, we dismissed the applicant’s application.  We indicated that we would hand down our reasons in due course, which we now do.

Summary of facts

6.  We will only set out the facts relevant to these 4 offences.  At about 9:35 pm on 21 April 2011, a police sergeant noticed a Honda with registration number MU8676 speeding along San Tin Highway near Pok Wai, Yuen Long at a speed of about 120 kph.  Since the speed limit was 100 kph, the sergeant switched on the siren and ordered the driver of the Honda (ie the applicant) to pull up at the road shoulder.  The applicant ignored the sergeant and sped up to 150 kph to evade the sergeant’s interception.  The applicant weaved in and out of lanes, cut across double white lines abruptly and overtook a double-decker bus, causing the bus and a goods vehicle following it to have to apply the emergency brake.

7.  At the Pok Oi Interchange, a Mercedes Benz and a Porsche stopped at the lights, waiting for the traffic.  The Honda hit the rear of the Porsche and shunted it forward to collide with the Mercedes Benz, causing damage to both the Porsche and the Mercedes Benz (Charge 1).  The repair costs for the Porsche was HK$100,000 and for the Mercedes Benz, HK$30,000.

8.  Three persons (one of whom was the applicant) fled from the Honda after it came to a halt upon colliding with the Porsche.  A police officer PC34957 chased the applicant while another police officer SPC50561 gave chase after another male.  The applicant and the other male were intercepted by the police near the Pok Oi Hospital and the two of them put up a violent struggle against PC10989 (Charge 6) and assaulted PC34957 (Charge 4) and Sergeant 20997 (Charge 5).  As a result of the struggle put up by the applicant and the other male, these three officers sustained injuries of tenderness and abrasions.

9.  The applicant was medically examined after the arrest and methamphetamine and its metabolite and amphetamine were detected from his urine.  In other words, the applicant was driving under the influence of a dangerous drug.

The applicant’s background  

10.  The applicant was then aged 37 and worked as a transportation worker earning about $8,000 per month.  Judge Yau was informed that the applicant suffered from kidney disease and was on medication.  He and his girlfriend have a 6-year-old daughter.  He was an inactive triad member and an abuser of the dangerous drug Ice.  He had 23 previous convictions, 12 related to dangerous drugs and 2 related to resisting or assaulting a police officer.  He also had 26 fixed penalty records, most of them related to the failure to display a valid vehicle licence and to give information on demand.

Reasons for sentence

11.  For Charge 1, Judge Yau noted that the maximum sentence for dangerous driving was 3 years’ imprisonment and a level 4 fine.  He also noted that the presence of Ice in the applicant’s urine sample amounted to an aggravating factor to bring the maximum sentence to one of 4 ½ years under RTO.  The judge then said (at para 30 onwards):

“30. The [applicant’s] speeding was for a relatively short time of around 1 odd minute … The damage to [the two cars was] expensive but it has to be taken into account that one is a Porsche and the other a Mercedes Benz. The [applicant’s] driving did cause a [double-decker] bus and a medium goods vehicle to have to brake abruptly and he did cut through double white lines, but again, that was over a short period of time and even at 150 kph, the car could only have travelled around 2.5 km. I find that the [applicant’s] dangerous driving was not the worst of its kind. Having said that, it was fortunate that his driving did not cause the [double-decker] bus to be involved in a collision or the consequences could have been much worse.

31. I find that based on the presence of the methamphetamine upon examination of his urine sample taken … some 11 hours after the collision, the [applicant] must have committed the dangerous driving offence with some concentration of methamphetamine in his body. The offence was therefore committed under circumstances of aggravation … and the maximum sentence is increased by 50%.

32. Taking into consideration the increased maximum, I will adopt a starting point of 3 years’ imprisonment, apply a one third discount in recognition of the [applicant’s] guilty plea, and sentence the [applicant] on this charge to 24 months’ imprisonment.”

12.  In relation to Charges 4, 5 and 6, Judge Yau noted the maximum sentence was one of 2 years’ imprisonment.  He then said (at para 42 and onwards):

“42. In the case of Secretary for Justice v Ko Wai Kit, CAAR 12 of 2001, the defendant was convicted of dangerous driving and resisting Police officers in due execution of duties. The defendant’s resistance was violent and occasioned injury to several officers. The Court of Appeal found that the correct starting point was a term of 18 months’ imprisonment. The Court found that since the resisting arrest offence was not part and parcel of the dangerous driving offence, their sentences should be served consecutively.

43. In our present case, the assault and the resisting was by way of ‘violent struggle’. The injuries suffered by the 2 officers in charge 4 and 5 are minor. Nevertheless, the sentence passed on the [applicant] must have a heavy deterrent element. Furthermore, the [applicant] has 2 similar previous convictions, although they were back in 2003 and 2004.

44. Given the circumstances, I find that a proper starting point is that of 15 months’ imprisonment.  The [applicant] is sentenced to 10 months’ imprisonment for each of charges 4, 5 and 6.”

Grounds of appeal

13.  Mr HY Wong, counsel for the applicant basically complained that Judge Yau has adopted too high a starting point for these four charges.  He referred to a number of authorities in an attempt to demonstrate that a starting point of 3 years for the dangerous driving offence, and 15 months for the resisting and assaulting offences, are manifestly excessive in this case.  We will deal with those authorities shortly.

14.  Mr Wong also complained that Judge Yau failed to express clearly whether the sentences for the resisting and assaulting offences would run consecutively to the sentences passed in relation to the dangerous driving offences (ie charges 1, 2 and 3).  The judge also did not make it clear whether these sentences would run consecutively to those sentences imposed on charges 7 and 8.  

15.  It was Mr Wong’s contention that an overall sentence of 42 months for all 8 charges after plea was manifestly excessive.  

Discussion

16.  Mr Wong relied on three authorities, one of which was the case of Ko Wai Kit referred to by Judge Yau, and submitted that the circumstances in which the applicant committed the dangerous driving offence were not as serious as those cases, so the starting point of 3 years adopted by the judge was manifestly excessive.

17.  It would be of assistance to briefly state the facts of those three cases.  We gratefully adopt the summary helpfully prepared by Mr Wong:

“(i) Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751: There the defendant under the influence of drugs had driven so erratically, making sudden u-turn, crossing double solid white lines in Ngau Tau Kok, and embarked on a ‘crazed journey’ from Ngau Tau Kok to almost the entire Kowloon peninsula till he was eventually stopped in Tsim Sha Tsui in the course of which he had the occasion to cause a police officer to fear that the officer would be run down that the officer fired at the defendant’s van, not to mention jumped red lights, collided with other motor vehicles and motorcycles, injuring a police officer and two civilians, etc. The CA thus adopted the then maximum sentence of 3 years as the starting point after trial.

(ii) HKSAR v Tang Chen Ming, CACC 227/2002: Where a sentence of 2 ½ [years’] imprisonment after trial for dangerous driving was upheld. There the defendant after a minor collision at a traffic light, engaged reversed gear in an attempt to flee the scene in the course of which he knocked down two pedestrians, one of whom was seriously injured. He then engaged a forward gear again in an attempt to flee and came to halt only after colliding with three stationary vehicles.

(iii) HKSAR v Jim Chong Shing, CACC 186/2003: There the defendant apparently was engaged in road racing with four other private cars at Tuen Mun Road.  Upon seeing a police road block, all drivers of the cars made U-turns and travelled against the traffic flow at high speed.  In doing so, the defendant’s car hit the offside front of one police van, which caused the van to hit the second police van.  A police Sergeant on board one of the police vans sustained injury to his shoulder.  The defendant’s vehicle continued to travel against [oncoming] traffic.  When it got near to the junction of Tuen Hing Road and Tuen Mun Heung Sze Wui Road, he suddenly stopped.  A police [officer] approached the defendant’s vehicle and recognized the defendant as someone he knew from the media.  On hearing the officer asking the defendant to turn off the car’s engine, the defendant suddenly reversed his vehicle into another road.  The police officer continued to chase after the defendant for more than 10 minutes before he lost sight of the defendant’s vehicle.  During the chase, the defendant committed a number of traffic offences, including overtaking a taxi by [crossing] double white lines.  The Court of Appeal described this as ‘an appalling case of dangerous driving’.  The defendant had a number of previous convictions including two charges of dangerous driving in 1979, one charge of dangerous driving in 1981, one charge of reckless driving in 1988, motor racing and reckless driving in 1994, speeding and dangerous driving in 2003.  30 months as a starting point after trial for the dangerous driving charge was upheld.”

18.  Mr Wong accepted that the dangerous driving in the present case was clearly bad.  Judge Yau has accepted that this was not the worst of its kind.  Mr Wong contended that even with the enhanced maximum of 4 ½ years, the culpability of the applicant could not be two-third as bad as in the case of Ko Wai Kit, nor as bad as Tang Chen Ming and Jim Chong Shing, the starting point of 3 years was therefore manifestly excessive.

19.  In relation to the resisting and assaulting offences, Mr Wong compared the manner of resistance and assault in this case with those in Ko Wai Kit, and submitted the circumstances of the latter were much worse, the starting point should therefore be lower than 15 months.

20.  To further support his submission, Mr Wong also referred to two cases concerning the obstructing or resisting of police officers in due execution of duties.  Again, we will adopt Mr Wong’s summary:

“(iv) HKSAR v Cheung Wai Lung, HCMA 12/2007: The appellant was stopped by two police officers who suspected that the appellant were in possession of DD. There was a struggle and during the struggle, despite the officers warned him to stop, the defendant did not stop and eventually the officers managed to put him under control. One of the officers suffered abrasions to his left knee and left elbow and the defendant himself suffered abrasion to his left hand. The Magistrate took 6 months as starting point and reduced it to 4 months for PG, on appeal, whilst agreeing a deterrent sentence is necessary, and that the struggle ‘was quite a long struggle’, a starting point of 4 months was appropriate and the Court reduced it to 2 months.

(v) HKSAR v Hung Hon Yee, HCMA 104/2010: The defendant PG to one count of resisting arrest and was sentenced to 4 [weeks’] imprisonment.  There the defendant was found being warned for failing to obey Court summons.  When the officer declared arrest, the defendant shouted at the officer with abusive language.  When the officer required him back to police station for enquiry, the defendant ignored and pushed away his hand from being controlled.  Despite further warnings by two officers, the defendant acted aggressively and refused the officer bringing him back to police station.  On further warning that otherwise he would be arrested for resisting arrest, the defendant stood up and pushed away the officer from being arrested.  4 [weeks’] imprisonment was held to be appropriate.”

21.  We will deal with the resisting and assaulting offences first.  It is clear that resisting or assaulting a police officer who was in due execution of his duty is a serious offence.  We do not find the lighter sentence imposed by magistrates in the two cases cited helpful.  

22.  We would like to reiterate the following: “… wrong decisions leading to excessively lenient sentences imposed on others in different cases by different judges or magistrates will not afford an applicant grounds of appeal in unrelated proceedings” (HKSAR v Tang Chen-ming, [2003] 1 HKC 515)

23.  As Stuart-Moore (Ag CJHC) (as he then was) said, when giving judgment of the court in Ko Wai Kit:

“22. … The maximum term for resisting an officer in the execution of his duty is one of 2 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. …”

The Acting CJHC continued to say this about the case before the court:

“… 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. …”

24.  Similarly, in the present case, the police officers were there to effect an arrest in a serious case – though not quite as serious as the one in Ko Wai Kit.  The applicant put up a violent struggle to resist the police and assaulted two policemen.  Bearing in mind the fact that actual injuries were caused to the officers – though minor ones, and the fact that the applicant had two similar convictions before, we are not persuaded that a starting point of 15 months is manifestly excessive.

25.  Coming now to the dangerous driving offence, as properly conceded by Mr Wong, this was clearly a bad case, albeit not the worst of its kind – as Judge Yau rightly commented.  Nevertheless, the applicant was driving while having the dangerous drug Ice in his body.  The wanton and erratic driving of the applicant at high speed caused a bus and a goods vehicle to have to apply the emergency brake to avoid collision.  It was sheer luck that no one sustained personal injuries during the applicant’s dangerous driving.  The applicant continued to drive at a high speed after the police signaled to him to stop and he eventually collided into the back of the Porsche, shunting it forward to hit the Mercedes Benz. The applicant caused damage to the cars of two innocent road-users.

26.  When the Court of Appeal dealt with Ko Wai Kit, the maximum sentence for dangerous driving was 3 years’ imprisonment.  Even though Ko Wai Kit was driving under the influence of drugs, the Court of Appeal was constrained in its approach by the maximum sentence of 3 years’ imprisonment.  Since that case, the RTO was amended by enacting the provisions (section 37 (2D-2F)) to specifically address the problem of driving under the influence of drug, with an increase of 50% to the maximum sentence.  Judge Yau correctly considered the appropriate starting point with reference to the maximum of 4 ½ years’ imprisonment.

27.  The other two cases cited were also decided when the maximum sentence for dangerous driving was 3 years’ imprisonment - prior to the amendment.

28.  We do not find a comparison with the actual circumstances of this present case with other cases particularly useful.  Bearing in mind the applicant’s atrocious way of driving while under the influence of dangerous drug, we are not persuaded that in all the circumstances of this case, the starting point of 3 years’ imprisonment is manifestly excessive.

29.  We will now turn to the complaint about Judge Yau’s order.  This is what the judge said:

“Totality Imprisonment

57. Bearing in mind the principle of totality, I will order that the sentences of imprisonment for charges 1, 2 and 3 be served concurrently. The sentences for charges 4, 5 and 6 be served concurrently. 8 months of charge 7 be served concurrent to [the] rest of the sentences.

58. The arithmetic of the various sentences are as follows: 24 months (charge 1, 2, 3) plus 10 months (charge 4, 5, 6) plus 4 months (charge 7) plus 4 months (charge 8), which equals a total of 42 months’ imprisonment.

59. This is equivalent to an overall starting point of 5 years and 3 months’ imprisonment (63 months) for all 8 charges.”

30.  It is true that by simply reading para 57 of his judgment, Judge Yau had not made it clear that the sentences for charges 4, 5 and 6 were to run consecutively to the sentences imposed on charges 1, 2 and 3.  He also failed to mention charge 8. However, his intention could clearly be inferred from the “arithmetic” shown in para 58.

31.  Further, there can be no argument that the resisting and assaulting offences were not part and parcel of the dangerous driving offence, the sentences imposed on charges 4, 5 and 6 should be served consecutively to charge 1 (see Ko Wai Kit).  Judge Yau made a reference to this sentencing principle in para 42 of his judgment, there can be no room for doubting what Judge Yau intended to do.

32.  Having said that, one should not be left to deduce a judge’s sentence by way of inference.  It is useful to remind judges of what Stock JA (as he then was) had said in HKSAR v Tan Meiyuan and others, CACC 360/2008, 2 April 2009, unreported:

“15. It is always important that at the end of a sentencing process for more than one offence, the total sentence can be discerned by ascertaining two factors which are apparent on the face of the order made: first, the exact sentence imposed in relation to each offence, which must be a sentence appropriate to the circumstances of that offence and, second, the totality to be derived from an expression of what part of the sentences for the second and further offences are concurrent and what parts, if any, are consecutive. …”

33.  We find no merit in the applicant’s complaint that the respective starting point of 3 years’ and 15 months’ imprisonment is manifestly excessive.  We do not agree that an overall starting point of 5 years and 3 months’ imprisonment, nor do we agree that an overall sentence of 42 months after pleading guilty is manifestly excessive.

34.  For these reasons, the application for leave to appeal against sentence is dismissed.