HKSAR v. LAM KING SING

CACC 285/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 285 OF 2015

(ON APPEAL FROM DCCC 190 OF 2015)

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Reasons for Judgment of the Court) :

Introduction

1.  The applicant faced three charges under the Road Traffic Ordinance, Cap 374 (“the Ordinance”) :

(1)  dangerous driving, contrary to section 37(1) of the Ordinance (Charge 1);

(2)  driving a motor vehicle with an alcohol concentration in the blood exceeding the prescribed limit, contrary to section 39A(1) of the Ordinance (Charge 2); and

(3)  driving an unlicensed vehicle, contrary to section 52(1)(a) and (10)(a) of the Ordinance (Charge 3).

2.  He denied all the charges and was tried by District Judge E Yip (“the Judge”).  He was then represented by Ms Sezen Chong of Counsel on the instruction of Messrs Cheung, Chan & Wong Solicitors, assigned by the Director of Legal Aid.

3.  On 15 July 2015, the Judge convicted the applicant of all three charges.  On 20 August 2015, after hearing mitigation the Judge sentenced the applicant on Charge 1 to 2 years’ imprisonment, disqualified him for a period of 3 years and required him to attend and complete a driving improvement course before applying for the return of his driving licence.  In respect of Charge 2, the Judge also sentenced the applicant to a period of 2 years’ imprisonment and the same period of disqualification with the same requirement that he attend a driving improvement course, to run concurrently with the sentence on Charge 1. In respect of Charge 3, the Judge fined the applicant HK$2,000.00.

4.  On 1 September 2015, the applicant applied for leave to appeal against sentence on Charges 1 and 2.  On 30 November 2015, he applied for leave to appeal against conviction on Charges 1 and 2 out of time.  Both applications were heard by McWalters JA.  By a judgment handed down on 5 September 2016, the learned judge refused both applications.

5.  On 15 September 2016, the applicant filed a notice of renewal of application after refusal by the single judge on both conviction and sentence.

6.  On 10 November 2016, after hearing the parties, we dismissed the applicant’s renewed applications.  We also exercised our power under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 (“CPO”) and ordered that a period of 2 months during which the applicant was in custody pending the determination of his renewed applications shall not be reckoned as part of the term of the concurrent sentences under Charges 1 and 2.

7.  We now hand down the reasons for our judgment.

The prosecution case

8.  All three charges arose from the same driving incident on 28 July 2014 involving a private motor vehicle with registration number ST5635 (“the Car”).

9.  At 06:59 hrs on the 28 July 2014, the Car was travelling in the slow lane of the northbound Tai Po Road.  It suddenly crossed the lane and bumped into the nearside rear of a taxi with registration number LA8039, which was driven by PW1 on the fast lane of the northbound Tai Po Road.  The Car did not stop after the collision but continued travelling along the northbound Tai Po Road.  PW1 memorized the Car’s number and gave chase.

10.  The Car travelled through a red traffic light at the junction of Shek Kip Mei Street and another red traffic light at the junction of Nam Cheong Street. When it reached the junction with Nam Cheong Street, the offside front of the Car hit the offside front of a taxi with registration number KL4335 driven by PW2 with a passenger on board (PW3), in what was almost a head-on collision. PW2’s taxi had just gone through a green traffic light in Nam Cheong Street to turn into Tai Po Road.  The Car was at fault for jumping the red traffic light on the northbound carriageway of Tai Po Road.  As a result of this collision, a jack from the boot of PW2’s taxi hit the offside body of a light goods vehicle with registration number HT6687 driven by PW4, in the adjacent lane to which the taxi was travelling on Nam Cheong Street.

11.  Shortly afterwards, PW1 arrived at the junction of Nam Cheong Street and stopped near the junction.  He saw the driver of the Car come out of the Car from the driver’s door and walk against the direction of traffic to Tai Po Road towards a Shell petrol station located on the pedestrian pavement on the northbound carriageway of Tai Po Road between the junctions with Nam Cheong Street and Un Chau Street, at about 15 metres from the location of the second collision.  PW1 was not asked to identify who was the driver of the Car when he gave evidence.

12.  At the same time, PW5 was sitting by the pedestrian pavement in the vicinity of Wong Chuk Street and Fu Wa Street.  She had nothing to do in particular.  The applicant walked up to her and lay down on the road.  He told her that he was hit in a traffic collision on Tai Po Road.  PW5 dialled 999 and asked the applicant to talk to the police by himself.  While he was talking to the police, the applicant was still lying on the ground.  He also closed his eyes. PW5 walked to Tai Po Road to see if there was a traffic accident.  The police soon arrived at the scene.  She then identified the applicant and recounted her encounter to the police.

13.  The police made enquiries with PWs 1 – 4.  PW6 (SPC 1854) conducted a breath test on all of the three drivers involved, that is, PW1s – 3.  None of them tested positive for the presence of alcohol.  PW7 (PC 7469) observed the applicant’s face and right orbit to be red and he could smell alcohol on applicant’s breath.  PW8 walked along Tai Po Road with the junction of Nam Cheong Street against the traffic up to the junction of Fuk Wa Street to see if there were any other traffic collisions at around that time but there were none.  He also took photographs of the scene and each of the 4 vehicles involved.  He also drew 2 sketch plans of the scene.

14.  At 0747 hrs, when PW7 asked the applicant to provide a breath test, the applicant said :

“ I am a pedestrian, was hit by a car. I did not drive a car. I feel unwell. Make an arrangement for me to go to hospital.”

15.  At 0748 hrs, PW7 arrested the applicant for failing to provide a breath test. Under caution, the applicant remained silent.  The applicant was then sent to Caritas Medical Centre in Sham Shui Po.  Upon examination, he was found to have suffered from head injury, contusion, right eye subconjunctival haemorrhage and chest injury.

16.  Later at 0840 hrs on the same morning, with the applicant’s written consent (Exhibit P4(a)), a specimen of blood was taken from his body by a medical practitioner at Caritas Medical Centre for analysis of alcohol concentration.  The result of the blood test showed that there was not less than 253 milligrams of alcohol in 100 millilitres of the applicant’s blood.  This exceeded the prescribed legal limit of 50 milligrams of alcohol in 100 millilitres of blood.

17.  On the same day, whilst the applicant was under medical care at Caritas Medical Centre, the police served the applicant with a form, Pol 571, entitled “Notice Requiring Identification of Driver” (“Exhibit P8”). The applicant was told he had 21 days in which to complete the form and return it to the police.  The applicant completed the form at once and returned it to the police officer.  In the form, the applicant identified himself as the driver of the Car at the time of the collision at the junction of Shek Kip Mei Street and Nam Cheong Street.

18.  A fingerprint expert found the applicant’s left palm print on the steering wheel of the Car.  At the time of the accident, the applicant was the registered owner of the Car.  The licence of the Car had however expired on 10 June 2014. So it was unlicensed at the time when the traffic incident in question took place on 28 July 2014.

19.  The Car was examined and apart from damage to the body work caused by the collisions, it did not have any mechanical defects.

The defence case

20.  The applicant objected to the admissibility of Exhibit P8 on grounds which can be summarized as being that the applicant was not in a fit state to complete the form at the time that he did and that the police took advantage of his unfit condition.  However, he did not give evidence or call any witness on the special issue.  He did not give evidence or call any witness on the general issue either.  As observed by the Judge in his Reasons for Verdict dated 15 July 2015, the applicant was simply putting the prosecution to strict proof of its case, including the admissibility of Exhibit P8.

Reasons for verdict

21.  The Judge first dealt with the admissibility of Exhibit P8.  For the reasons that he gave, he ruled it admissible.  However, the Judge went on to hold that in view of the heavy intoxication of the applicant when he completed the Pol 571 he would not regard the admission contained in it as reliable.

22.  The Judge found all the prosecution witnesses’ evidence to be credible and reliable.  He found that the irresistible inference from the circumstantial evidence was that the applicant was the driver of the Car at the time it was involved in both collisions.  The judge further found that the applicant drove the Car whilst having alcohol in his blood over 4 times the prescribed limit and concluded that this amounted to dangerous driving.  He thereupon convicted the applicant of all charges.

Reasons for sentence

23.  The applicant was aged 32 at the time of conviction and had worked as a cook before his arrest.  His father had died in 2006 and he was providing financially for his mother who lived with him in the same premises.  The applicant took to drinking in 2007 as a means of dealing with his work pressure.  There followed drink driving problems which manifested themselves in two criminal cases.

24.  The first alcohol related driving incident occurred in May 2008 when he was fined for careless driving, failing to stop in case of an accident whereby damage was caused, failing to report as soon as reasonably practicable and failing to provide a specimen of breath for alcohol analysis.  The second alcohol related driving incident occurred in June 2008 when the applicant was sentenced for failing to comply with traffic signals and failing to provide a specimen of breath for alcohol analysis. The applicant also had a previous record for being drunk and disorderly which resulted in 7 days’ imprisonment in June 2011.

25.  The applicant also had other more recent traffic offences. They included careless driving (September 2010 and June 2011) and failing to comply with traffic signals (March 2011, July 2012 and July 2014).

26.  The Judge took the view that his criminal record for traffic related offences did not present the applicant as a responsible driver.

27.  The applicant’s employer wrote a letter to the Judge.  He highly recommended the applicant’s personality and work performance.  The applicant had also rendered various services to the patients at Queen Elizabeth Hospital and a nurse had written to the Judge to draw his attention to these matters.  The applicant had helped mentally handicapped persons at a centre of the hospital and provided frequent voluntary services to this centre.

28.  The Judge addressed the legal considerations relevant to the determination of the appropriate sentence to be imposed on the applicant.  He noted that the statutory threshold for drink driving was set at 50 milligrams of alcohol in 100 millilitres of blood.  He then referred to section 37(1)(a) of the Ordinance, noting that the maximum penalty for dangerous driving on conviction on indictment is a fine at level 4 and 3 years’ imprisonment and that a first time offender will be disqualified for not less than 6 months.  However, section 37(2D) requires that the penalties and minimum disqualification periods be increased by 50% where the offence has been committed in circumstances of aggravation.  Under section 37(2E), one such circumstance of aggravation is where the proportion of alcohol in the driver’s blood is at tier 3.  Section 39A(1A)(c), when read with section 39A(1A)(b), defines tier 3 as a blood alcohol figure exceeding 150 milligrams of alcohol in 100 millilitres of blood. The maximum period of imprisonment then becomes 4½ years and the minimum disqualification period becomes 9 months.  As the applicant had not less than 253 milligrams of alcohol in 100 millilitres of blood, the Judge found that he was a person who had committed the dangerous driving offence in circumstances of aggravation, namely by having a proportion of alcohol in his blood at tier 3 level.

29.  The Judge then described the factual circumstances of the applicant’s driving as follows :

“ The state of intoxication had very substantially incapacitated the Defendant from controlling the Car. The Car jumped 2 sets of traffic lights and bumped into 2 taxis, one seriously damaged and the other slightly damaged. A passenger on board the second taxi was slightly injured on the head. A light goods vehicle was also damaged by the jack from the boot of the second taxi as an impact of the collision. He immediately left the scene after the Second Collision.”

30.  The Judge did not regard the applicant’s previous alcohol related driving offences as aggravating factors as they had all taken place in 2008, which was 6 years before the present offences.  He also said that the applicant’s poor driving record between 2008 and 2014 could not be shown to be due to any alcohol related problem.

31.  Noting that the maximum penalty for the dangerous driving offence had to be increased by 50% due to the level of alcohol in the applicant’s blood and taking into account the revised maximum of 4 years and 6 months’ imprisonment, the Judge adopted a starting point of 2 years and 3 months’ imprisonment on Charge 1.  He discounted the starting point by 3 months to allow for the voluntary charitable services provided by the applicant, resulting in a sentence of 2 years.  The Judge said there would be no further discount in the absence of other mitigating factors.  The judge further ordered disqualification for a period of 3 years and required the applicant to attend and complete a driving improvement course before applying for the return of his driving licence.

32.  In respect of Charge 2, the Judge sentenced in the same manner by adopting a starting point of 2 years and 3 months’ imprisonment and reducing it to 2 years’ imprisonment. He adopted the same disqualification period of 3 years and made the same order in respect of completing a driving improvement course.  He then ordered the sentence of imprisonment and the disqualification period to run concurrently with those imposed on Charge 1.  In respect of Charge 3, the Judge fined the applicant $2,000.

Application for leave to appeal against conviction out of time

33.  In considering whether leave should be given to appeal out of time, the Court of Appeal looks at :

(1)  the length of the delay;

(2)  the reasons for the delay;

(3)  the bona fides of the application; and

(4)  the grounds of the appeal to see whether, by refusing leave, the Court is not shutting out a substantial and plainly arguable ground of appeal.

34.  The applicant was convicted on 15 July 2015 but was sentenced on 20 August 2015, that is, more than 7 days after conviction.  Pursuant to the proviso to section 83Q(2) of the CPO, leave to appeal against conviction may be filed by the applicant within 28 days from the date on which sentence was passed, that is, 20 August 2015.  But he did not do so until 27 November 2015, some two months later.  The delay is not insignificant.

35.  In Part II of the Form XI for leave to appeal against sentence dated 1 September 2015, the applicant had to state what he was applying for.  All the statements including “Leave to appeal against CONVICTION” (in both English and Chinese) were crossed out, leaving only “Leave to appeal against SENTENCE (1^st, 2^nd Charge).  It clearly indicated that the applicant did not intend to appeal against conviction and he was appealing against sentence only.  The applicant explained the CSD officer who assisted him in filling in the Form crossed out something but he was not aware of exactly what had been crossed out.  The applicant said he was careless in signing the Form as it was.  He maintained that he had all along intended to appeal against both conviction and sentence.  We find his explanation unconvincing and do not accept it.

36.  More importantly, we can see no substance whatsoever in his grounds of appeal.  The applicant filed the Form XI on 27 November 2015 with initial grounds of appeal attached.  He next filed further grounds of appeal on 18 April 2016.  He then filed an affirmation on 13 May 2016 on counsel’s incompetence and another affirmation on 12 October 2016 to deal with various points raised in McWalters JA’s judgment and further points in relation to his appeal.  Four main grounds of appeal arose from his numerous documents, which we will discuss in turn.

37.  First, the applicant complained that Exhibit P8, the Pol 571, was wrongly admitted. This complaint simply does not assist him as the Judge did not attach any weight to it after admission.  It cannot possibly be argued, as the applicant did, that its admission would render the trial unfair.

38.  Second, the applicant complained that 4 sets of cautioned statements were improperly taken from him.  But in all the cautioned statements, he either remained silent or said that he had nothing to say.  The applicant in particular referred to [10] of the Reasons for Verdict where the Judge recorded :

“ At 0747 h, when asked to provide a breath test by PW7, the Defendant said :

I am (a) pedestrian, was hit by a car.  I did not drive a car.  I feel unwell.  Make an arrangement for me to go to hospital.”

The applicant alleged that PW7 had not cautioned him before he took this statement from him.  But that statement was essentially his defence.  It was exculpatory in nature.  There is no unfairness as alleged because of the fact that PW7 had not cautioned him.  We also fail to see how the lack of caution, as contended by the applicant, could have affected PW7’s overall credibility or the manner in which he conducted the investigation.

39.  Third, the applicant complained that Ms Chong, his trial counsel, was incompetent. His main allegation is that Ms Chong refused to call a principal defence witness, Mr Leung Kwon Kuen, who could have given evidence to show that he was not the driver of the Car at the time of the collisions.

40.  Pursuant to the court’s direction, Ms Chong filed an affirmation dated 12 July 2016 to deal with the applicant’s complaint against her.  She exhibited a counsel’s case report to the Legal Aid Department dated 25 August 2015 to her affirmation.  She also kindly attended court to give oral evidence and be cross-examined by the applicant.

41.  We have carefully considered Ms Chong’s evidence, both written and oral.  We accept her evidence in full.  We cannot see any incompetence on her part in handling the applicant’s trial.  In connection with the potential witness Mr Leung, Ms Chong in her Case Report noted that the defendant initially planned to call a number of witnesses including him.  She went on to note :

“ Mr Leung Kwok Kuen

- On the date of the incident, namely 28 July 2014, Mr Leung witnessed the car crash. He approached the Defendant’s vehicle and saw the Defendant on the 2^nd row passenger’s seat. During the conference, at first, he said he did not see the driver of the vehicle. Later, he said that he in fact saw a man, the surreptitious driver, came out of the vehicle from the driver’s seat and fled the scene.

- He said one day in March 2015, when he was passing the spot of the collision, he encountered the Defendant who was looking for eyewitness there. He therefore agreed to be the Defendant’s witness.

- Mr Leung had multiple convictions relating to trafficking in dangerous drugs and dishonesty.”

42.  Ms Chong was not impressed by the potential witnesses the applicant intended to call, including Mr Leung.  She wrote :

“ There are serious inconsistencies and inherent illogicality in different versions given by the above persons. During the conferences, the above persons were evasive, self-contradicting and not forthcoming. Having considered their criminal records, their demeanor in the conferences and the inherent conflicts in their versions, I have grave doubt in their credibility and reliability.”

43.  Ms Chong duly advised the applicant of her views and he then decided not to call any of the potential witnesses including Mr Leung.

44.  In our view, in advising the applicant if he should call Mr Leung or indeed any of the potential witnesses, Ms Chong had very properly identified the potential problems of calling them and duly advised the applicant of the same.  In the end, it was the applicant who decided not to call them.  We can see no incompetence on Ms Chong’s part as alleged.

45.  The applicant also complained that Ms Chong had wrongly asked him not to give evidence.  Ms Chong said that she had duly explained his right to him after which he decided not to give evidence.  She had not asked him not to give evidence as alleged.  We have no reason to doubt Ms Chong.

46.  All in all, Ms Chong has adequately answered all the allegations the applicant raised against her.  We can find no substance whatsoever in the applicant’s complaint about her competence.

47.  Finally, the applicant complained that there was insufficient evidence to prove beyond reasonable doubt that he was the driver of the Car at the time of the collisions.  We disagree.  Although there was no direct evidence led by the prosecution as to the identity of the driver of the Car, there was ample circumstantial evidence before the Judge which entitled him to draw the only reasonable and irresistible inference that the applicant was beyond reasonable doubt the driver of the Car at the material times.

48.  For the above reasons, we dismissed the application for leave to appeal against conviction out of time.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

49.  At the hearing, the applicant told us that he was approaching the end of his sentence.  So he no longer wished to pursue the application for leave to appeal against sentence.  We accordingly dismissed it.

LOSS OF TIME

50.  McWalters JA had explained in a lengthy and comprehensive judgment why he refused the applicant’s applications.  The applicant had already had the benefit of a very experienced judge’s views on the merits of his applications.  McWalters JA had also warned him of the serious consequences if he were to renew his applications :

“ 59. … At the handing down of this judgment I advised the applicant of his right to renew his applications before the Court of Appeal and also informed him of the power possessed by the Court of Appeal in section 83W(1) of the Criminal Procedure Ordinance. I further advised him that should he renew his applications and should the Court of Appeal find no merit in them, the Court of Appeal might exercise the section 83W(1) power adversely to him and make an order for loss of time against him.”

51.  Subsequently, the applicant was again reminded of the possibility that the Court of Appeal might order loss of time against him should he renew his application but the Court of Appeal came to the conclusion that there was no justification for the renewal : see Form XII dated 5 September 2016 and Form XIII dated 15 September 2016.

52.  Despite these repeated reminders, the applicant persisted.  There was simply no justification in doing so.  It was a waste of valuable judicial time and public resources.  His complaint against Ms Chong also caused her much inconvenience. She had to make an affirmation and come to court to give evidence in the middle of her work.  In the circumstances, a loss of time order was called for.  We therefore exercised our power under section 83W(1) of the CPO and ordered that a period of 2 months during which the applicant was in custody pending the determination of his renewed applications shall not be reckoned as part of the term of the concurrent sentences under Charges 1 and 2.