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)

------------------------

------------------------

________________

J U D G M E N T

________________

1.The applicant appeared before the District Court on a charge sheet containing three charges. The first was dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374. The second charge was driving a motor vehicle with an alcohol concentration in the blood exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance and the third was driving an unlicensed vehicle, contrary to section 52(1)(a) and (10)(a) of the Road Traffic Ordinance. All three charges arose from the same driving incident which took place on 28 July 2014 when the applicant was driving a private motor vehicle, registration no ST5635.

2.The applicant was tried by District Judge E Yip (“the judge”) and was convicted of all three charges on 15 July 2015.  On 20 August 2015 the applicant was sentenced on the first charge to 2 years’ imprisonment, disqualified for a period of 3 years and required to attend and complete a driving improvement course before applying for the return of his driving licence.  In respect of the 2^nd charge he was also sentenced to a period of 2 years’ imprisonment and the same period of disqualification with the same requirement that he attend a driving improvement course.  The sentence of imprisonment and order for disqualification in respect of the second charge were ordered to run concurrently with the sentence of imprisonment and order of disqualification imposed in respect of the first charge.  In respect of the third charge the applicant was fined $2,000.

3.On 1 September 2015 the applicant applied for leave to appeal his sentences and on 30 November 2015 he applied for an extension of time in which to apply for leave to appeal his conviction. The lateness of this latter application caused the adjournment on 1 December 2015 and the grounds of appeal on which he sought to rely in relation to his application to appeal his conviction out of time led to the adjournment on 20 April 2016.  At the hearing of the applications I reserved my judgment which I said I would hand down at a later date.  This I now do.  

The prosecution case 

4.At 6.59 hrs on the 28 July 2014 the applicant was driving a private motor car, ST5635, travelling in the slow lane of the northbound Tai Po Road.  He suddenly crossed the lane and bumped into the nearside rear of a taxi, registration number LA8039, which was travelling on the fast lane of the northbound Tai Po Road.  The applicant did not stop after the collision with the taxi but continued driving along the northbound Tai Po Road.  The driver of the taxi memorized the applicant’s car number and gave chase.

5.The applicant’s car drove 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 applicant’s motor vehicle hit the offside front of a taxi, registration number KL4335, in what was almost a head-on collision.  This taxi, with a passenger on board, had just gone through a green traffic light in Nam Cheong Street to turn into Tai Po Road.  The applicant was at fault for jumping the red traffic light on northbound Tai Po Road. 

6.As a result of the applicant’s car colliding with the taxi at Nam Cheong Street, a jack from the boot of this taxi hit the offside body of a light goods vehicle, registration number HT6687, in the adjacent lane to which the taxi was travelling on Nam Cheong Street. 

7.The driver of the first taxi with which the applicant had collided, that is, LA8039, arrived at the junction of Nam Cheong Street, shortly afterwards and stopped near the junction. 

8.After the accident the applicant got out from his motor vehicle and walked against the direction of the traffic of Tai Po Road towards a petrol station.  The applicant, after walking a short distance, lay down on the road and asked a pedestrian to call the police for him.  He told this person that he was hit in a traffic collision on Tai Po Road. 

9.When the police arrived at the scene they conducted breath tests on all of the drivers.  None of the drivers whose vehicles were involved in collisions with the applicant’s vehicle tested positive for the presence of alcohol. One of the police officers observed the applicant’s face and right orbit to both be red and he could smell alcohol on his breath.  When the police officer 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.”

10.At 7.48 hrs this police officer arrested the applicant for failing to provide a breath test.  After being cautioned, the applicant remained silent.  The applicant was sent to Caritas Medical Centre in Sham Shui Po and at 8.40 hrs that morning a specimen of blood was taken from his body by a medical practitioner 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.

11.The applicant’s motor vehicle was examined and apart from damage to the body work caused by the collisions, his vehicle did not have any mechanical defects.

12.A fingerprint expert found the applicant’s left palm print on the steering wheel of his vehicle and at the time of the accident the applicant was the registered owner of this vehicle.  The licence of this vehicle had expired on 10 June 2014 and so the applicant’s motor vehicle was unlicensed at the time that he was driving it on 28 July 2014.

13.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”.  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 his vehicle at the time of the collision at the junction of Shek Kip Mei Street and Nam Cheong Street.   

The defence case

14.The applicant did not give evidence or call any witness.

The Reasons for Verdict

15.The judge commenced his Reasons for Verdict by noting that the defence stance was simply to put the prosecution to strict proof of its case. This included objecting to the admissibility of the Pol 571 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.  The applicant did not give evidence on the special issue and the judge accepted the evidence of the police officers and ruled the Pol 571 admissible.

16.The judge found all the prosecution witnesses’ evidence to be credible and reliable.

17.The judge said 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.  However, he went on to find that the irresistible inference from the circumstantial evidence was that the applicant was the driver of his car at the time it was involved in both collisions.  The judge found that the applicant drove his vehicle 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.

The Reasons for Sentence

18.After setting out the facts of the case the judge addressed the applicant’s personal circumstances.  The applicant was aged 32 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. 

19.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.

20.However, the applicant also had other more recent traffic offences.  They were careless driving (September 2010 and June 2011) and failing to comply with traffic signals (March 2011, July 2012 and July 2014).  The judge said of them that they did not present the applicant as a responsible driver.

21.A letter from the applicant’s employer was presented to the judge which showed that his personality and work performance were highly recommended.  The applicant had also rendered various services to the patients at Queen Elizabeth Hospital and a nurse there had written to the court to bring this to its attention.  He had helped mentally handicapped persons at a centre of the hospital and provided frequent voluntary services to this centre.

22.The judge then went on to address the legal considerations relevant to the determination of the appropriate sentence to be imposed on the applicant.  The judge 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 Road Traffic Ordinance and noted 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 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.

23.From this the judge concluded that as the applicant had not less than 253 milligrams of alcohol in 100 millilitres of blood 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.

24.The judge 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.”

25.The judge said that he 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.

26.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 said he would adopt a starting point of 2 years and 3 months’ imprisonment on the first charge.  This he discounted by 3 months to allow for the voluntary charitable services provided by the applicant.  This brought the sentence to 2 years which the judge said would not be discounted further as there were no other mitigating factors.  The judge 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.

27.In respect of the second charge the judge sentenced in the same way, adopting a starting point of 2 years and 3 months’ imprisonment for this charge 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 ordered that the sentence of imprisonment and the disqualification period run concurrently with the same sentence and order made in respect of the first charge.  In respect of the third charge he fined the applicant $2,000.

The application for leave to appeal conviction out of time

28.In an affirmation attached to his Form XI the applicant stated:

“In the absence of a legal representative I lacked legal advice. My further legal aid application is now being considered hence my decision to launch an appeal on the grounds set out below.”

29.This is the only explanation given by the applicant prior to the hearing that could conceivably explain why he did not file an application for leave to appeal his conviction in time.  When queried by the court at the hearing of his application if he had anything further to say as to why he failed to apply for leave to appeal his conviction within time he gave a completely new explanation.  I invited him to testify in support of it.  Under oath he said that his first Form XI was completed by a clerk of the Correctional Services Department as he, the applicant, was unfamiliar with the appeal process.  He said the clerk deleted the other applications referred to in the form except for the application for leave to appeal sentence.  He maintained that he told the clerk he wanted to appeal both conviction and sentence and could not explain why the clerk had failed to properly carry out his instructions.  When asked if he read the form before he signed it he said he did not pay particular attention to it.

30.The applicant also said that the clerk told him he should write a separate note setting out his grounds of appeal and this he did.  He was cross-examined on this note and why it was that the only complaints made in it relate to his sentence and not to his conviction if in fact he wished to appeal both.  Apart from accepting that the note contained only complaints relating to his sentence, the applicant failed to directly answer this question saying that he was told by the clerk he had to wait for legal advice and that the clerk told him to write it this way.  Another answer was that time was short and that he misunderstood the advice from the clerk and mistakenly wrote it this way.   

31.In the letters and submissions that he wrote to the court the applicant made the following complaints in respect of his conviction:

(i)   his counsel provided him with incompetent representation thereby depriving him of a fair trial;

(ii)   the judge was biased against him; and

(iii)   the judge erred in admitting the Pol 571 into evidence as he, the applicant, was medically unfit at the time he was compelled by the police to sign this form. 

32.The allegations against his trial counsel included dissuading him from taking a number of points in relation to the Pol 571; failing to make submissions on the fingerprint evidence; dissuading him, improperly, from calling any witnesses; failing to make use of documents provided by a District Councillor and failing to properly cross-examine the prosecution witnesses.

33.In order to assess the merits of these complaints I directed that the applicant’s counsel and solicitor file affirmations in response to them. This was done.

The application for leave to appeal sentence

34.In a letter to the court received in October 2015 the applicant stated that mitigation factors were presented which should have reduced the judge’s starting point.  One such mitigating factor, he said, was the effort he had made to assist the police in their investigation and his compliance with his bail conditions during the period of investigation.  In this respect the applicant mentioned that he was the person most severely injured from the driving incident and that he needed a longer time to recover.  Furthermore, he said he was deeply haunted by memories of the experience in his daily life and that his social life and work were affected during the period of the investigation.

35.The applicant also stated that this driving behavior by him was not the case of a driver deliberately driving in an irresponsible and dangerous manner over a long course nor was it the situation where he could foresee that other road users would be injured.  Rather, he stated, this was a case where he was severely under the adverse influence of alcohol.  He also stated in his letter that he had been aware of his drinking problem back in 2007 and had taken action then to remedy it.

36.He stated that given his previous traffic behaviour he could only be regarded as a careless driver rather than an irresponsible one, as described by the judge. 

37.He was also critical of his counsel, who he said, had failed to assist the judge with relevant sentencing authorities.  He also referred to the mitigation letters that various parties had written which focused on his hard work and his participation in voluntary work at hospitals.

38.He also complained that, even though a 50% enhancement of sentence was required, the judge’s starting point should not be equivalent to half of the maximum sentence.  He referred to another recent case involving a drunk driver who had hijacked a public light bus on Lockhart Road in Causeway Bay and driven it for a while before abandoning it.  This driver was sentenced to 2 months’ imprisonment suspended for 3 years.

39.The applicant also sent to the court two letters dated 30 June 2015 and 13 August 2015 from Sai Kung District Councillor Mr Sam Ng.  These letters referred to the applicant’s remorse, his generosity to others and his family responsibilities.  In the second letter the councillor mentioned that the applicant’s girlfriend was pregnant and due to give birth to the applicant’s child in January 2016.  She is, he says, suffering emotional distress as a result of the applicant’s incarceration.

40.At the hearing the applicant repeated many of the points he had mentioned in his written submissions.  In addition he emphasised that he had suffered injuries in the accident which required his hospitalisation for a period longer than any of the other victims and that he had quickly reported the matter to his insurance company so that compensation claims by the victims could be speedily processed.

41.He also referred to a comment made by Tang VP (as he then was) in HKSAR v Lei Tin Seng[1].  This was a case of dangerous driving causing death where the defendant was guilty of driving his light goods vehicle at an excessive speed when making a sharp turn in an extremely busy street at peak hour.  His excessive speed was due to an error of judgment with no aggravating features present in his driving.  In the course of delivering the judgment of the court Tang VP said at paragraph 22:

“This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident that is in itself a very harsh punishment regardless of the length of imprisonment.”

42.The applicant suggested that there were six factors relevant to mitigation.  They are:

(i)   that the defendant has a prior good driving record;

(ii)   that the defendant has no prior criminal convictions;

(iii)   that the defendant pleads guilty;

(iv)   that the defendant shows remorse and is affected by the accident;

(v)   the defendant’s age; and

(vi)   that the defendant was also injured severely in the accident.

43.The applicant accepted that of those six mitigating factors only the sixth one was relevant to him.  Furthermore, he confirmed that he suffers no residual disabilities from his injuries.

44.The other complaints he made at the hearing were that his sentence was more severe than that imposed by others and that his counsel had failed to inform the court that he was about to become a father. He also asserted that the reason he pleaded not guilty was not because he did not want to shoulder his responsibility but only because he wanted to find out what happened as he himself had no recollection, due to his heavily intoxicated state.

Discussion

45.In respect of the application for an extension of time in which to apply for leave to appeal his conviction I have considered the explanation put forward by the applicant and find it quite unbelievable. His attempt to put all the blame on a clerk employed by Correctional Services Department for erroneously completing the Form XI is inherently unbelievable given the importance of this form and the fact that the applicant signed it. For the applicant to say that he did not pay particular attention to the content of the form only adds to the implausibility of his explanation. Finally, his assertion that he all along intended to apply for leave to appeal his conviction is contradicted by the grounds of appeal that he set out in a note which he then attached to the Form XI.  The applicant was wholly unable to explain, let alone credibly explain, this contradiction.  I reject his explanation and that being so there is no basis for me to grant the applicant the indulgence he seeks. 

46.Nevertheless, in order to ensure that I might not be shutting out a meritorious ground of appeal I have considered the various complaints he has advanced in respect of his conviction.

47.I am satisfied that there is no merit in any of his complaints in respect of his counsel’s conduct of his defence.  Her decisions not to adduce certain evidence, including not calling certain witnesses, have been explained and clearly flowed from sound professional assessments she made which led to certain advice being given to the applicant to which he then agreed.

48.She carried out her instructions in objecting to the admissibility of the Pol 571 and though she was unsuccessful, there is nothing to indicate it was through any lack of competence.  Of course, ultimately it did not matter as the judge placed no weight on the admission contained in this document.

49.There is no basis for the complaint that the judge was biased.  The evidence against the applicant was overwhelming and for the applicant to expect that, in the circumstances of this case, the judge would not be satisfied that he was the person driving his own car, was optimism bordering on fantasy.  In the absence of any credible evidence from the applicant a conviction was inevitable.

50.There was no error by the judge in admitting the Pol 571 as there was no evidence from the applicant to contradict or undermine the evidence of the police witnesses.  However, the importance of this document fell away as the judge, in the end, placed no reliance on it.

51.I am satisfied that there is no merit in any of the applicant’s complaints against his conviction and so I am satisfied that by not granting the applicant the extension of time he seeks I am not shutting out a clearly arguable ground of appeal.

52.Turning to the application for leave to appeal his sentence I am likewise of the view that there is no merit in any of the applicant’s complaints.  The culpability of the applicant is very high.  Whilst heavily intoxicated he embarked upon a course of dangerous driving which resulted in two accidents.  It is quite fortuitous that nobody was killed or gravely injured.

53.The Road Traffic Ordinance reflects the seriousness of the conduct of driving whilst intoxicated by increasing the maximum punishment when the blood alcohol level exceeds 150 milligrams of alcohol in 100 millilitres of blood.[2] The applicant had not less than 253 milligrams of alcohol in 100 millilitres of blood.  Thus, the maximum penalty for him became 4 years 6 months’ imprisonment.

54.Whilst in this condition the applicant drove his car, jumped two sets of traffic lights and caused two separate accidents in which he collided with other vehicles.  One of the collisions was almost a head-on collision and caused an injury to the passenger in the victim vehicle. Set in this context a starting point of 2 years 3 months’ imprisonment is certainly not excessive; indeed if anything it might be regarded as unduly lenient.  The applicant’s attempt to downplay the seriousness of his driving misconduct is ludicrous.  

55.None of the matters raised in mitigation would entitle the applicant to have his sentence reduced by more than the 3 months that the judge awarded him.  Although he may have been injured in the second accident he has fully recovered from those injuries.  The fact that he has become a father does not entitle him to any further discount of his sentence. Given the seriousness of the applicant’s driving misconduct his personal circumstances carry little weight.

56.There is nothing in any of the complaints made about his counsel.

57.The applicant’s references to other cases do not assist him.  None of them demonstrate any error by the judge or reveal a pattern of sentencing with which the judge’s starting point could be said to be inconsistent.  Ultimately, it is not a question of how other defendants in unrelated cases are sentenced but rather whether there is any error in the applicant’s sentence.  In my view there is not.  

58.I can find no arguable ground of appeal in any of the matters raised by the applicant, either in his written submissions or in his oral submissions advanced at the hearing of his application. 

Conclusion

59.For these reasons I refuse the applicant leave to appeal his conviction out of time and leave to appeal against his sentence.  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.

Mr Nicholas Wong SPP, of the Department of Justice, for the respondent

The applicant appeared in person