HKSAR v. Sham Pui Chak

CACC 165/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 165 OF 2015

(ON APPEAL FROM DCCC 925/2014)

____________

____________

_________________________

REASONS FOR JUDGMENT
_________________________

Hon Pang JA (giving the reasons for judgment of the court):

1.On a charge sheet alleging five counts, the appellant pleaded guilty to one count of ‘failing to display standard registration mark’[1] (Charge 4) and one count of ‘using a defective vehicle’[2] (Charge 5), and was sentenced to the respective fines of $500 and $1,000. Of the three remaining counts of ‘dangerous driving’[3] (Charges 1 to 3), he was, after trial, convicted as charged in relation to Charges 1 and 2 and found guilty of the lesser offence of ‘careless driving’ in relation to Charge 3[4]. For these convictions, the appellant was sentenced to concurrent terms of 15 months’, 15 months’ and 2 months’ imprisonment, respectively. For Charges 1 and 2, he was also disqualified from driving for one year and ordered to attend a driving improvement course. By leave of a single judge of this Court (Lunn VP), the appellant appealed against his overall sentence of 15 months’ imprisonment only. Having heard the appeal, we allowed the appeal and substituted his overall sentence with one of 12 months’ imprisonment.

The Facts

2.All five charges in the charge sheet pertained to the same motorcycle (registration mark PE3892) of which the appellant was the driver.  As per the verdict, the appellant was found to have driven this motorcycle dangerously (carelessly in the case of Charge 3) at “Route Twist, Yuen Long”, “Kam Tin Road, Yuen Long” and “Pok Oi

Interchange, Yuen Long” respectively.  The facts as summarised by the trial judge (HH Judge Isaac Tam) were as follows[5].  The offences were said to have taken place over a period of some ten minutes[6]:

“3. On 16 March 2014, at about 9.45 am on Route Twist, Yuen Long, [Charge 1] the defendant was driving a dark-coloured motorcycle bearing registration mark PE 3892 and overtook a bus by crossing double white lines at a speed of about 90 kilometres per hour. The speed limit was 50 kilometres per hour.

4. A police car was nearby and gave chase with siren and flashing lights on. During the chase, the police driver never lost sight of the motorcycle. Although at times he came close enough to the tail of the motorcycle, he was not able to see the licence plate usually to be found at the back of a motorcycle. The motorcycle kept moving forward at speeds between 30 and 100 kilometres per hour and overtook various other vehicles whenever obstructed by crossing double white lines at speed. Eventually, the police driver lost sight of the motorcycle when the latter just entered Kam Tin Bypass.

5. The defendant on the same motorcycle was seen again in Kam Tin Road, Yuen Long bound, shortly after it disappeared [Charge 2]. Initially, he was not travelling in excess of the speed limit of 50 kilometres per hour. But when a police motorcyclist spotted it and turned around to chase it with siren and flashing lights on, the defendant speeded up to about 100 kilometres per hour and was travelling in the middle of two lanes going in the same direction with heavy traffic, occasionally finding himself in between two overlapping vehicles. The police motorcyclist kept the defendant in sight and followed him to Au Tau Roundabout which the defendant entered at about 80 kilometres per hour. Thereafter, the defendant came onto the approach road to Pok Oi Interchange.

6. On the approach road [Charge 3], the defendant was travelling in the second lane initially at 100 kilometres per hour, but later slowed down to a stop at about 10 metres away from the roadblock ahead created by three other police motorcycles. Ignoring police warning to stop the engine, the defendant moved forward again to about 1 metre from the roadblock, intending to slip through a gap between the roadblock and a green taxi in the first lane. However, as the roadblock was repositioning itself by moving towards the first lane, the defendant when moving into the first lane collided with one of the police motorcycles of the roadblock causing it and his own motorcycle to fall. In the confusion, one other police motorcycle fell. As a result of the accident, two police motorcyclists suffered injuries and their respective motorcycles sustained damage.

7. The defendant was helped off his motorcycle by the police but found to be struggling and hence had to be handcuffed at the back and made to sit on the roadside. When he calmed down, he was arrested for furious driving and no insurance and was cautioned. Under caution, he said voluntarily, ‘I fled at Tai Shan only because (I) did not want to be caught (and requested) by Sir for a vehicle examination. I did not intend to hit the police vehicles.’

8. He was later taken to Yuen Long Police Station for a formal record of interview which contained a post-record of what he said at the scene and a series of questions and answers which he was asked and answered at the police station. He voluntarily participated in the interview.

9. From the defendant’s cautioned statements, the court found the following facts:

(a) He fled at Tai Mo Shan because he did not want to be caught by the police for a vehicle examination. He did not intend to hit the police vehicles;

(b) That morning, he went for a ride on his motorcycle PE 3892 from home to Route Twist at Tai Mo Shan. Later, he intended to return home;

(c) As he was in a rush to return home, he did overtake vehicles by cutting double white lines; he thought he had been speeding;

(d) He was travelling at high speed in between the first and second lanes of Kam Tin Road and passed by other vehicles at the same time; and

(e) At Pok Oi Interchange, he found so many police vehicles around. He was afraid of being caught and requested for a vehicle examination. He intended to drive slowly by the side but somehow he clashed (sic) into the police motorcycle or motorcycles.

10. Upon examination, the defendant’s motorcycle was shown to have a rear registration plate not firmly secured and properly displayed [Charge 4]; also, the obligatory reflectors were absent [Charge 5].

Background & Mitigation

3.The appellant was aged 23 at the time of the offence.  He was educated up to ‘higher diploma’ level. He was single, worked as an aircraft loading controller at Hong Kong International Airport and lived with his parents in Tin Shui Wai.  But for a fixed penalty matter in 2012, namely driving in excess of the speed limit by more than 30 kilometres per hour but not more than 45 kilometres per hour, the appellant had no previous convictions.

4.The main grounds of his mitigation were[7]:

(a) There was a letter from the appellant’s employers saying that, whatever the outcome might be in this case, they would continue to keep the appellant in their employ.

(b) There was a letter from the employer of the appellant’s mother vouching for the good character of the appellant.

(c) There was documentary proof of the appellant’s healthy lifestyle.  His interests were said to include piano-playing, canoeing and swimming.

(d) The appellant had supportive parents, who had high hopes for him.  In turn, the appellant was described as a filial son.  He gave $6,000 out of his $14,000 monthly salary to his mother.

(e) Since the incident, the appellant had sold his motorcycle and was no longer a motorcycle rider.  He took the bus to and from work.

(f) The injuries caused to the two police officers in Charge 3 were not serious.

(g) The damage caused to the two police motorcycles in Charge 3 amounted to about $18,000 in repair costs.  Towards that, the appellant was able to pay a compensation of $10,000.

The Sentence

5.Insofar as it is relevant to the present appeal, the following is what the judge said in passing sentence[8]:

“23. Dangerous driving is a serious offence, the maximum sentence being 3 years’ imprisonment. Deterrence is certainly a consideration I need to take account of.

24. For the purpose of sentencing, I shall consider Charge 1, Charge 2 and Charge 3 together because the subject matters behind them constitute an almost continuous course of conduct.

25. The defendant’s conduct comprises prolonged speeding, repeated breaches of traffic regulations, multiple overtaking of other vehicles under precarious circumstances, failure to stop despite clear and unambiguous police warnings to do so and attempting to slip through a police roadblock.

26. The total length of the police pursuits was in excess of 5 kilometres. The pursuit under Charge 2 was in the midst of heavy traffic. Fortunately, no one was injured and no property was damaged under Charges 1 and 2. However, under Charge 3, two traffic policemen suffered slight injuries and there were minor damage to the two police motorcycles, all of these were as a result of the defendant’s conduct.

27. In the case of the defendant, given his multifarious conduct as outlined above in open defiance of the law, immediate custodial sentence is the only option.

28. For these charges, having regard to totality, I shall adopt a global starting point of 18 months’ imprisonment.

29. For Charges 1 and 2, that is the starting point that I adopt. I shall deduct 3 months for his clear record. There are no other valid mitigating factors. I impose 15 months’ imprisonment for each of Charges 1 and 2.

……

32. For Charge 3, the careless driving charge, I adopt a starting point of 4 months’ imprisonment.

33. The defendant pleaded guilty, so he is entitled to a one‑third discount. I give a little discount for his clear record. There are no other mitigating factors. In the result, I sentence him to 2 months’ imprisonment.

34. All imprisonment terms are to be served concurrently; and all disqualification orders are to be served concurrently.”

Ground of Appeal

6.Mr Percy who acted for the appellant complained that, for Charges 1 and 2, the starting points of sentence of 18 months’ imprisonment were manifestly excessive; and that notwithstanding the three-month deduction for previous good character, and the order that all sentences should run concurrently, the final term of 15 months’ imprisonment remained manifestly excessive.

Submissions

7.The main plank of Mr Percy’s submissions was that the judge had overlooked facts and circumstances which, if given proper regard, would go a long way to mitigate the seriousness of the appellant’s conduct:

(a) The appellant was not under the influence of drugs or alcohol.

(b) Albeit that he was involved in certain initial traffic contraventions, the appellant did not set out to drive dangerously.  He ignored the police instruction to stop not to flout the law.  He was apprehensive of having to surrender his motorcycle to vehicle examination, and foolishly took off in a panic flight.  This was borne out by his cautioned statement and record of interview, the content of which the judge accepted[9].

(c) The appellant’s driving was dangerous but –

(i) he never lost control of his motorcycle;

(ii) he never rode against the flow of traffic;

(iii) there was no evidence that he violated any traffic lights;

(iv) there was no evidence that he put any pedestrians at risk;

(v) there was no evidence that he caused other drivers to brake and/or change course to avoid a collision;

(vi) he did not drive consistently over the speed limit, but only when he detected police officers in his pursuit[10].

(d) Whereas, in relation to Charge 2, the judge may have considered it an aggravating factor[11] for the appellant to ride speedily down the middle of two lanes under heavy traffic[12], the police motorcyclist obviously did the same.  This may suggest that the gap between the lanes was wide enough for a motorcycle to pass without causing real danger.

(e) In the end, in relation to Charge 3, the appellant did not attempt to charge his way through the police blockade at speed.  He stopped, tried to “slip through”, but failed[13].

8.Seeing the whole incident in that light, and taking into account such other mitigating factors as the appellant’s age, background and rehabilitation as a non-rider, as well as the limited damage that he had caused to people and property, Mr Percy submitted that an overall starting point of 12 months’ imprisonment would have been appropriate in this case.  He referred us to two District Court decisions[14] as sentencing samples of the offence of ‘dangerous driving’ in that Court.

9.In reply for the respondent, the emphasis of Ms Leung’s submissions was on the possible, as opposed to actual, damage that may arise from the appellant’s conduct, and the fact that this conduct was entered into with a view to evade lawful apprehension.  Ms Leung cited to us three Court of Appeal judgments[15] but because the facts of those cases were, comparatively speaking, more serious, they naturally gave rise to heavier sentences and were less helpful to us than might otherwise be expected.

Discussion

10.The difficulty in sentencing for the offence of ‘dangerous driving’ is well known.  In such an exercise, the judge is not dealing with criminals in the ordinary sense, but normally law-abiding individuals who, but for a piece of dreadful driving, would not be found committing a crime: Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318, at paragraph 34 of the judgment[16].

11.Also, in assessing culpability, the dominant factor affecting the seriousness of an act of ‘dangerous driving’, it is not a matter of counting the number of aggravating or mitigating factors[17] and then arriving by mechanical means at the relevant sentence: Secretary for Justice v Poon Wing Kay [2007] 1 HKC 289, at paragraph 10(4) of the judgment.  In the same passage, Ma CJHC (as Ma CJ then was) is noted to be saying:

“Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.”

12.Thus approaching the matter, we do feel that there is force in Mr Percy’s submissions.  For meeting the justice in this case, and for the appellant’s personal deterrence against re-offending, we are persuaded that a sentence shorter than 15 months’ imprisonment would be in order.  That said, for repeatedly ignoring the police demand to stop, hence putting officers in their high speed pursuit at risk, the sentence should not be seen as overly lenient.

13.Looking at the matter in the round, the 18-month starting points for Charge 1 and Charge 2 were manifestly excessive.  They should have been set at 15 months’ imprisonment.  In deference to the trial judge’s judgment, the three-month deduction for previous good character would stand, thus further lowering those sentences to 12 months’ imprisonment.  As before, those sentences should run wholly concurrently with each other and with the sentence on Charge 3.  The order of disqualification will remain unchanged, as will the order to attend a diving improvement course.

Disposal

14.For the above reasons, we allowed the appellant’s appeal, set aside his original sentence, and made the orders as per paragraph 13 of this judgment.

Mr Percy Duncan, instructed by George Chan & Co, for the appellant

Miss Peggy Leung, SPP of the Department of Justice, for the respondent

[1] Contrary to regulations 8(2)(c) and 60(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap 374). 

[2] Contrary to regulations 106 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap 374). 

[3] Contrary to section 37(1) of the Road Traffic Ordinance (Cap 374).

[4] For Charge 3, ‘careless driving’ was indeed the plea that the appellant had offered before trial.  It was not accepted by the prosecution.

[5] Appeal Bundle, pages 16-19, Reasons for Sentence.

[6] Appeal Bundle, pages 7-8, Prosecution’s Opening.

[7] Appeal Bundle, pages 19-20, Reasons for Sentence.

[8] Appeal Bundle, pages 21-22, Reasons for Sentence.

[9] See paragraph 9 of the Reasons for Sentence, under paragraph 2 of this judgment.

[10] See paragraphs 4 and 5 of the Reasons for Sentence, under paragraph 2 of this judgment. 

[11] See paragraph 26 of the Reasons for Sentence, under paragraph 5 of this judgment.

[12] See paragraph 5 of the Reasons for Sentence, under paragraph 2 of this judgment.

[13] See paragraph 6 of the Reasons for Sentence, under paragraph 2 of this judgment.

[14] HKSAR v Pack Wing Hang DCCC 806/2012 (29 November 2012) and HKSAR v Chiu Kin Man DCCC 872/2012 (18 January 2013).

[15] HKSAR v Tang Chen Ming CACC 227/2002 (7 January 2003); HKSAR v Jim Chong Shing CACC 186/2003 (3 October 2003) and HKSAR v Lam Shun Choi CACC 402/2012 (7 May 2013).

[16] The charge in that case was ‘dangerous driving causing death’.  Nevertheless, the same problem persists even when no one was killed.

[17] See R v Cooksley (2003) 2 Cr App R 275 for a comprehensive but not exhaustive list of aggravating and mitigating factors in ‘dangerous driving’.