HKSAR v. CHEUNG CHI WAH

HCMA 787/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 787 OF 2001

(ON APPEAL FROM TWCC 1701/2001)

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J U D G M E N T

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1. On 4 July of this year the appellant who is aged 43 pleaded guilty at Tsuen Wan Magistracy to offences of (a) driving in excess of the speed limit; (b) driving whilst disqualified and (c) using a motor vehicle without third party insurance. Those offences were committed on 27 May.

2. Having adjourned sentence and called for a probation officer's report and a psychiatric report the learned magistrate sentenced the appellant on 16 July as follows:-

(a) fined $600.00;

(b) 2 months imprisonment and disqualified from driving for 12 months; and

(c) fined $2,500.00 and disqualified from driving for 12 months.

The periods of disqualification were ordered to run concurrently but consecutive to a period of 12 months disqualification imposed upon the appellant on 13 March of this year.

3. It was against the sentence of 2 months imprisonment that the appellant appealed. I dismissed that appeal on 30 August and said that I would give my reasons in writing at a later date. These are my reasons.

4. The reason why the learned magistrate called for a psychiatric report was because in mitigation it was suggested that the appellant was suffering from a mental illness in respect of which he was receiving treatment.

5. In her reasons for sentence the learned magistrate said, inter alia, the following concerning the appellant and the offences:-

"He had been disqualified for 12 months for dangerous driving on the 13th March 2001. The dangerous driving had occurred when the Appellant saw a male whom he believed owed him some money, and that the Appellant drove the wrong way down a one way street. It was stated that the Appellant had sold his car after this conviction. On the 27th May 2001, just over two months after the imposition of the disqualification, the Appellant was stopped by the police, for exceeding the speed limit by 24 kmph. The explanation put in mitigation was that the vehicle belonged to ...... his girlfriend. She had developed a stomachache. They had stopped for about half an hour to see if her condition improved. As her condition did not improve, and they did not wish to abandon the car in the street, the Appellant took over driving the vehicle.

I carefully considered the two reports. Briefly, the psychiatrist detected no sign of mental illness ........

For offences of driving whilst disqualified custodial sentences are appropriate where there has been a flagrant breach. Suspended sentences may be imposed in certain circumstances.

This was clearly a flagrant breach. The Appellant had only been disqualified some two months before this incident, for an offence of dangerous driving....... The Appellant decided to drive when it was unnecessary for him so to do, in that alternative transport would have been easily available, and he drove at an excessive speed, 74 kmph in a 50 kmph area. ..........

I considered that an immediate term of imprisonment was the appropriate sentence to impose. I took 3 months as the starting point, and I gave him full credit for his plea of guilty. I thus sentenced him to an immediate term of 2 months imprisonment. No matters of mitigation were put before me, which indicated that it would be appropriate to suspend that sentence."

6. Mr Mughal who appeared as counsel for the appellant before me relied upon the following perfected grounds of appeal:-

"1. In all the circumstances of the case, particularly the explanation of the Appellant as to the reasons he drove the vehicle, the learned magistrate could have dealt with the Appellant by way of a suspended sentence for breach of the disqualification order.

2. The learned magistrate failed to place sufficient weight and reliance, if at all, on all the mitigating factors as advanced on behalf of the Appellant.

3. The learned magistrate placed too much weight on the preventive aspects of sentencing and failed to give proper regard to other aspects, particularly rehabilitation.

4. The sentence of 2 months immediate imprisonment on Charge B is somewhat on the high side having regard to all the circumstances of the case."

7. During the course of the hearing of this appeal I was referred to a number of authorities concerning suspended, as against immediate, sentences of imprisonment for offences of driving whilst disqualified - and concerning what is, or what is not, a flagrant commission of the offence. I found the judgment of Bewley J in R v Wong Kei Kwong [1987] 3 HKC 315 to be particularly pertinent.

8. Having considered those authorities and the submissions of Mr Mughal which, at least in part, suggested that the appellant's culpability was diminished by his immaturity in reacting to his cohabitee's discomfort I was firmly of the view that his driving whilst disqualified on 27 May was 'flagrant' and that such conduct merited a sentence of imprisonment.

9. I was also firmly of the view that it could not be said that an immediate term of imprisonment was wrong in principle because no exceptional mitigation had been advanced before the learned magistrate or before me that could properly justify the suspension of such a term. Quite apart from anything else the appellant has a shocking driving record. Leaving aside his conviction for dangerous driving which led to his disqualification in March of this year the appellant has been convicted in the last 9 years of no fewer than 3 offences of speeding; 1 offence of careless driving; 1 offence of crossing double white lines and another offence of dangerous driving. And nor could it be said that the sentence of 2 months imprisonment imposed upon the appellant was in the least bit excessive - let alone manifestly excessive.

10. Accordingly I dismissed this appeal.