HKSAR v. NG CHUN IP

CACC 157 /2025, [2026] HKCA 570

On Appeal From [2025] HKDC 806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 157 OF 2025

(ON APPEAL FROM DCCC NO 314 OF 2024)

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J U D G M E N T

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1.  On 23 May 2025, the applicant pleaded guilty in the District Court before Deputy Judge M Chow (“the judge”) to three charges, namely:

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

(ii)     Driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374 (“Charge 2); and

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

2.  On the same day, the judge sentenced the applicant to a total of 19 months’ imprisonment with an overall disqualification period of 3 years, and further ordered that he must attend a driving improvement course at his own expense within 3 months before the expiry of the disqualification order.

The amended summary of facts

3.  On 23 October 2023, at 8:40 pm, police officers were conducting a roadblock snap check at the junction of Dundas Street and Ferry Street in Yau Ma Tei, Kowloon.

4.  The applicant was at the time driving a private car with a registration mark YA1695 (“the car”) with a female in the front passenger seat.  The car turned from Ferry Street into Dundas Street.  Upon seeing the roadblock, the applicant immediately reversed back into Ferry Street and drove off in the direction of Waterloo Road.  Police officers boarded a police vehicle and gave chase.

5.  Ignoring multiple warnings issued from the police vehicle through a loud hailer, the applicant continued to drive the car, disregarding road markings by making an unauthorized U-turn on one occasion, running through a red light twice, changing lanes frequently and driving at a high speed in a built up area when the speed limit on the relevant roads was 50 kph.

6.  Eventually, the police vehicle intercepted the car outside 80 Public Square Street in Yau Ma Tei.  The applicant and his female passenger alighted from the car.  She remained next to the car while the applicant fled.  However, he was intercepted some 50 metres away.  When enquiries were made, it was discovered that the applicant had been disqualified from driving until 25 March 2024.

7.  The applicant was initially arrested for dangerous driving.  However, following his answer under caution that “because I am being disqualified, I have to flee”, he was further arrested for driving while disqualified and using a motor vehicle without third party insurance.  The applicant responded under caution, “I know I am disqualified from driving, please give me a chance.”

Mitigation

8.  The applicant was 26 years of age at the time of sentence.  The female passenger in the car was his girlfriend.  He was a construction site worker, earning about $15,000 per month.  He provided for his family and was said to be extremely remorseful.

9.  Prior to the present case, the applicant had a conviction for driving while disqualified and one for using a motor vehicle on a road against third party risks, for which he was sentenced on 6 December 2022.  On that occasion he was sentenced to a Community Service Order for 240 hours and disqualified from driving for 12 months.  He had previously committed two road traffic offences: one for careless driving in 2020; and another for driving in excess of the speed limit by more than 45 kph in 2022.  He also had a substantial record of fixed penalties.

10.  It was said in mitigation that the applicant was not under the influence of alcohol or drugs at the time of the offences and he was attempting to evade police apprehension simply because he had earlier been disqualified from driving.  Counsel on behalf of the applicant accepted that disregarding multiple police warnings to stop, disregarding road markings not to make a U-turn, intentionally running through a red light twice all in an attempt to evade police apprehension were aggravating features of the case.

11.  No special reasons for not imposing a disqualification order were put forward.

Sentence

12.  The judge remarked that, from the dash camera footage, the road conditions at the time of offences were not as busy as during daylight hours and the roads were clear of traffic.  She observed that the car chase lasted about 3 minutes.  Although nobody was injured, the judge observed that the manner in which the applicant drove posed a significant risk to his passenger and other road users.  She rejected the submission that it could be a mitigating factor that the applicant was not under the influence of alcohol or drugs at the time because, if that had been the case, the applicant would have then faced a 50% increase in sentence under section 37(2D) of the Road Traffic Ordinance.

13.  In relation to Charge 1, the judge adopted a starting point of 24 months’ imprisonment and, giving a discount of one-third for his timely plea, the sentence passed was 16 months’ imprisonment.  Noting that a disqualification order was “forward looking and preventive” in nature, she ordered that the applicant be disqualified from driving all vehicles for a period of 3 years and be required to attend a driving improvement course at his own expense.

14.  In relation to Charges 2 and 3, the judge noted that the applicant committed the present offences within 7 months of his previous disqualification order, which took effect from 26 March 2023.  This was the second occasion on which the applicant drove while disqualified and without third party insurance.  She adopted a starting point of 9 months’ imprisonment for both Charges 2 and 3.  Applying a discount of one-third for plea, the sentences became 6 months’ imprisonment.  The judge imposed a disqualification order for a period of 3 years, which was to take effect from the date of conviction.

15.  Bearing in mind the issue of totality, the judge ordered the sentences on Charges 2 and 3 to run wholly concurrently with each other.  However, 3 months of that sentence were ordered to run consecutively to that of Charge 1, resulting in a total sentence of 19 months’ imprisonment. The disqualification orders were also ordered to run wholly concurrently.  Therefore, the applicant was disqualified for a total period of 3 years, with effect from the date of sentence.  In addition, the applicant was ordered to complete a driving improvement course within the last 3 months of the disqualification period.

Grounds of appeal

16.  The applicant has applied for leave to appeal against his sentence.  By his Form XI, he complains that his sentences should have been ordered to run wholly concurrently given that the charges arose out of the same incident.  He also produced this morning a 4-page submission in writing, which has been translated for me in open court.  Essentially, he maintains that his driving manner was not overtly dangerous, being more akin to careless driving.  He takes issue with the suggestion by the judge that his speed had reached 80 kph at one point.  However, I note that the figure was acknowledged by the applicant’s counsel during mitigation[1].

The respondent’s submissions

17.  In opposing the application, Ms Au, for the respondent, submitted that the starting point of 24 months’ imprisonment was not manifestly excessive, since the judge had correctly identified all the aggravating factors present; moreover, the sentence was within the range of starting points suggested by the defence in mitigation^[2].  It was contended that the judge adopted the starting point for Charge 1 without considering that it was committed in the context of the applicant driving while disqualified and without third party insurance.  Before passing sentence, the judge had indicated her intention of following the approach of the Court in HKSAR v Chung Ho Yin[3], namely, of ordering the sentences in respect of Charges 2 and 3 to run partly consecutively to that of Charge 1, which the applicant’s counsel appeared to accept^[4].

18.  Ms Au maintained that, notwithstanding that the offences arose from a single incident, they were different offences reflecting different aspects of the applicant’s criminal conduct.  Driving while disqualified and without third party insurance would leave road users affected by the applicant’s driving without recompense and this added to the applicant’s culpability.  Accordingly, the judge’s approach could not be faulted and an overall sentence of 19 months’ imprisonment properly reflected the applicant’s culpability.

19.  Ms Au further submitted that disqualification for a period of 3 years and the requirement to attend a driving improvement course were fair, just and balanced given the applicant’s bad driving record and the circumstances of the present case.

Consideration

20.  The applicant’s main contention is that the sentences in this case should all have been concurrent, given that there was one incident giving rise to three offences.  However, in view of the different criminality involved in the overall course of conduct, I do not think that is a realistic or reasonable argument.  The dangerous driving offence was a separate offence from the offences of driving while disqualified and using a motor vehicle without third party insurance.  As explained by the Court in Secretary for Justice v Chu Wing Yin Christine[5], a defendant’s culpability, albeit in the context of the offence of causing grievous bodily harm by dangerous driving, involved two related assessments; the first being the objective dangerousness of the defendant’s driving, the second being his moral culpability.  The Court said that the first “focuses more on what the driver did, the other on why he did it”[6].

21.  This distinction helps to illustrate why dangerous driving and driving while disqualified are rather different facets of the defendant’s culpability.  The dangerous driving charge concerned the objective standard of his driving and how it placed other road users and pedestrians, as well as his passenger, at risk.  The outstanding driving while disqualified charge provided the reason why he had driven as he did to evade the police; as, indeed, he had said under caution and his counsel conceded in mitigation[7].

22.  However, there was another reason why the offences of driving while disqualified and using a motor vehicle without third party insurance merited a consecutive element in sentencing.  The applicant had been convicted of exactly the same two offences less than a year before the events of 23 October 2023.  To have made the sentences for these same offences wholly concurrent with the dangerous driving charge on this occasion would have been to devalue them completely as well as ignore the fact that the applicant is obviously contemptuous of court orders.

23.  Even if I were to accept the argument that the sentence on Charge 1 could have been less than 16 months’ imprisonment, the consecutive element for Charges 2 and 3 could have been more than 3 months’, even as much as 6 months’, imprisonment.  Ultimately, it is the overall sentence that the Court of Appeal would be concerned with, not the route by which the sentence was reached.  The Court does not reduce a sentence because it would have sentenced differently, if the ultimate result is neither manifestly excessive nor wrong in principle.

24.  Accordingly, I can see no reasonable argument for appeal against any of the sentences passed or orders made in this case. The application is refused.

25.  The applicant is advised that he has the right to renew his application for leave to appeal before the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time the applicant has spent in custody pending his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.

[1] Appeal Bundle (“AB”), p 23F.

[2] AB, p 23P.

[3] HKSAR v Chung Ho Yin (Unrep., CACC 75/2020, 17 September 2021).

[4] AB, pp 26F-27G.

[5] Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771, at [53]-[55].

[6] Ibid., at [55].

[7] Written submission of mitigation: AB, p 31, at [2].