HKSAR v. Mok Lai Man, Edward

CACC 260/2017
[2018] HKCA 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 260 OF 2017

(ON APPEAL FROM DCCC NO. 258 OF 2017)

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Before :  Hon Lunn VP in Court

Date of Hearing:  28 February 2018

Date of Judgment:  6 March 2018

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J U D G M E N T

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1.The applicant sought leave to appeal against the total sentence of 20 months’ imprisonment imposed on him by Deputy District Court Judge E Lin on 17 August 2017 following his convictions on his plea of guilty on 31 July 2017 to a charge of dangerous driving (Charge 1), contrary to section 37(1) of the Road Traffic Ordinance, Cap 374, and a charge of driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit, namely not less than 75 milligrams of alcohol in 100 millilitres of blood (Tier 1), (Charge 2), contrary to section 39A(1) of the same Ordinance. At the hearing, I reserved my judgment, which I hand down now.

The facts

2.The applicant admitted that between 17:40 and 18:08 hours on 5 December 2016 he was driving a motor car, a BMW with the registration number LD 8880, on a road dangerously under the influence of alcohol, namely with not less than 75 milligrams of alcohol in 100 millilitres of blood a total of 22 kilometres before he was intercepted and arrested.

3.The applicant was driving along Sunny Bay Road on Lantau Island when he was observed by a police officer on a motorcycle stationary in a restricted zone talking on a telephone.  After the police officer manoeuvred his motorcycle to a halt in front of the applicant, the latter drove off and, having turned into Cheung Tung Road he travelled westbound, swerving into the opposite lane several times.  Then, the applicant reversed into Sham Shui Kok Drive and set off in an eastbound direction on Cheung Tung Road.

4.The applicant ignored the police officer’s horn signals and hand gesticulations indicating that he must stop.  Rather, he continued to travel at around 80 kilometres per hour and turned into Sunny Bay Road.  On encountering a roadblock set up in the nearside lane, the applicant not only ignored the signals and hand gestures of the two police officers manning the roadblock to stop, but also accelerated and drove past the roadblock in the outer lane.

5.Anticipating that the applicant would have to return to the roadblock, the police officers extended it so that it covered both lanes.  However, when the applicant returned several minutes later he drove the BMW in the middle of the two lanes colliding with a coach, a light goods vehicle and a police vehicle, but nevertheless succeeded in forcing his way through the roadblock.

6.Having driven the BMW onto the Lantau Link, the applicant travelled at speeds of between 100 to 120 kilometres per hour swerving his vehicle between the two lanes.  In doing so he ignored demands broadcast on a loudspeaker from a police vehicle that he stop his motorcar.  When the police vehicle was alongside the BMW occupying the outer lane, the applicant manoeuvred his vehicle across its path and collided with the nearside of the police vehicle.  A short time later, the applicant repeated that manoeuvre and, having collided with the police vehicle, accelerated ahead of it in the outer lane.  Then, the applicant accelerated the BMW and rammed into the rear of another private motor car.  Then, the applicant decelerated and manoeuvred into the nearside lane, where he collided with the police vehicle.  Having done so, he crashed into the steel wire parapet of the bridge on the left side.  There, he spun around, came to a halt.  Then, he alighted from the BMW and climbed over the fence where he was intercepted by police officers, whom he told that he wished to die.

7.A screening breath test showed a result of 37 ug of alcohol in 100 ml of breath.  Having been arrested for driving under the influence of alcohol at 18:44 hours, and having been cautioned, the applicant claimed that he had consumed half a bottle of brandy that afternoon.  The applicant was arrested.  Analysis of a blood sample taken from the applicant at hospital revealed that his blood contained 75 milligrams of alcohol in 100 millilitres of blood.

8.Two policemen were injured during the incident. PC 9205, the driver of the police vehicle with which the applicant collided twice, sustained mild swelling to his right ankle, whilst Sergeant 54643 who manned the roadblock sustained mild swelling to his right wrist.

9.The total cost of repair of all the motor vehicles was estimated to be $306,514 and that of the parapet fence was $18,258.23. 

Mitigation

10.Mr Anthony Yuen, for the applicant, informed the judge that the applicant was a 46 years old married businessman with a young son. He acknowledged that the applicant had two previous convictions for offences related to dishonesty, for which he had been fined.  Counsel informed the judge that on the day in question the applicant decided to commit suicide.  He was driven to choose to do so because very substantial debts of his company became due on 5 December 2016.  As a result, he consumed sleeping pills and whisky, planning to drive his car into the sea from the Tsing Ma bridge.

11.In his written submissions Mr Yuen had acknowledged “the norm for this kind of case has one of immediate custodial sentence”.  However, he went on to urge the judge to accept that “…this is one of those cases that the court can consider dealing with it (sic) in an exceptional way.”  Having said that the applicant was a hard-working man who was a responsible and dutiful husband, a caring father and a filial son, Mr Yuen said:[1]

“ He committed the offence when his mind was overwhelmed with the idea of ending his life, his judgement was coloured by this idea of committing suicide, and he was experiencing an unbearable emotional pain on the day in question.”

12.In the result, Mr Yuen invited the court “…to consider a suspended sentence, and if not, then pass a sentence which could minimise the impact not on the future of the defendant but on the future of his family.” [2]

Reasons for sentence

13.Having received mitigation on 31 July 2017, the judge adjourned sentencing the applicant until 17 August 2017 in order to obtain two psychiatric reports and a psychological report on the applicant.  He said that he had done so “…in order to see if there are any matters which may be to his advantage in sentencing.” [3]

14.In sentencing the applicant, the judge said:[4]

“ I take into consideration the background contained in the reports and also the mitigation. I accept that at the time of the incident, the defendant had been going through a rough stage of his life. He might even be suicidal at some point. But both the psychologist and the psychiatrist stated that there is no pathological reason to the offences.

I have also been informed that the defendant is a good provider for his family.  I also accept that the sentence to be meted out by this court will have a devastating effect on him and his family.”

15.Of the applicant’s culpability for the offences, the judge said:[5]

“ From the moment the defendant refused to heed the command of the police officer, the pursuit that ensued took over 30 minutes during which the defendant had (at least twice) ignored demands to stop and had used his car as a weapon to ram against police vehicles in pursuit, posing obvious dangers to the police and any bystanders. It is almost a miracle that the police officer had only sustained minor injuries and there was no civilian casualty.”

16.The judge went on to say:[6]

“The manner of the defendant’s driving obviously reflected a conscious effort to evade the lawful apprehension of the police. It was not a desperate attempt to commit suicide. In addition, the present case was not a case of momentary lapse of judgment but rather a prolonged course of behaviour, fuelled in some measure by the ingestion of alcohol, exhibiting a selfish, reckless disregard for the safety of the police officers and other users of the road.”

17.Having noted that the Court of Appeal of England and Wales had set out general principles for sentencing in cases of dangerous driving in R v Cooksley [7], which approach had been adopted by this Court in the Secretary for Justice v Poon Wing Kay, the judge said that he identified some of the relevant factors stipulated there as present in the commission of the offence by the applicant, namely:[8]

(i) Consumption of alcohol.  The defendant admitted he had drunk a whole bottle of whisky, although judging from the quantity of alcohol in his system, he probably had consumed less than that.  However, it is a fact that the alcohol content in his blood had exceeded the legal limit.

(ii) A prolonged, persistent and deliberate course of very bad and aggressive driving; driving at an excessive speed, driving backwards on the highway, driving onto the opposite lane, deliberately ramming into other vehicles to force his way through the roadblock and hitting the rear of another vehicle travelling on the same lane.

(iii) Defiance of authority by ignoring the police officer’s command, driving through the roadblock twice and, worse still, ramming through a roadblock and using his vehicle to attack the police vehicle.

(iv) The personal injuries caused to police officers.

(v) The damages caused to the other five vehicles which, as admitted by the defendant through his counsel, he was unable to compensate.

18.The judge said that “the dominant sentencing principle is that of general deterrence” [9] and went on to state that he had regard to the judgments of this Court in the Secretary for Justice v Ko Wai Kit Paul [10] and HKSAR v Jim Chong Shing.[11]

Starting point for sentence

Charge 1

19.Having stated that he regarded the circumstances of the commission of dangerous driving by the applicant as “a serious example of dangerous driving, coupled with a deliberate and reckless disregard for authority and also for other road users of the road” the judge said that an important factor was “the use of the vehicle as a weapon to ram against other vehicles.”  In the result, the judge stipulated a starting point for sentence of 30 months’ imprisonment.

Charge 2

20.The judge did not stipulate a starting point for sentence for the offence of driving a motor vehicle with an alcohol concentration in blood exceeding the prescribed limit.

Sentence

21.Having stated that the only “valid mitigating factor” was the applicant’s plea of guilty the judge afforded the applicant a discount of one third from the starting point taken for Charge 1 and imposed a sentence of 20 months’ imprisonment.  In respect of Charge 2, the judge imposed a sentence of one month’s imprisonment.

22.Earlier, the judge had said:[12]

“ The two offences were committed in the same set of circumstances. The ingestion of alcohol has been considered part of the circumstances for assessing the culpability for the dangerous driving charge. It could be considered double-counting if additional sentence is to be imposed for this charge.”

23.In those circumstances, the judge said that he imposed a sentence of one month’s imprisonment in respect of Charge 2, which he ordered to be served concurrently with the sentence of imprisonment imposed in respect of Charge 1.

Disqualification and other orders

24.For Charge 1, the judge ordered the applicant to be disqualified from driving for three years and, in respect of Charge 2, he ordered that the applicant be disqualified from driving for the mandatory minimum period of six months, which he ordered to be served concurrently with the order imposed in respect of Charge 1.  In addition, the judge ordered that in the last three months of the period of disqualification the applicant go to the Transport Department and enrol in and complete a driving improvement course.

The grounds of appeal against sentence

25.For the applicant, Mr Anthony Yuen advanced two grounds of appeal.  First, it was submitted that the judge erred in failing to give any, or little weight, as to the circumstances of the case and the individual circumstances of the applicant and his family and, in doing so, failed to consider the option of a non‑immediate custodial sentence.  Secondly, it was contended that, having regard to sentencing in other cases, the starting point of 30 months’ imprisonment was excessive.[13]　Mr Yuen said that the judge erred in concluding that this was a “serious example of dangerous driving case” when compared with other similar cases.

26.In his written submissions, Mr Yuen made it clear that the only issue taken in the application was in respect of the starting point stipulated for the offence the subject of Charge 1 and the sentence imposed in consequence.

27.In his oral submissions, Mr Yuen took issue with the judge’s determination that the applicant “…had used his car as a weapon to ram against police vehicles in pursuit”.  He suggested that the fact of the collisions between the applicant’s motorcar and police vehicles was explained by the applicant’s mental stress and intoxication which reduced his ability to drive properly.

28.Mr Yuen submitted that the judge had erred in failing to give any weight to the circumstances in which the applicant had committed the offences, in particular that at the time he was pursuing a suicidal intent.  He invited the Court to note that in HKSAR v Ng Oi Cheung [14] this Court had allowed an appeal and quashed the sentence of 3 years and 2 months’ imprisonment imposed on the appellant following his conviction on his plea of guilty of an offence of robbery of a cashier of a shop, in which the appellant had armed himself with a piece of broken glass.  In the judgment of the Court, Stuart-Moore Ag CJHC said that the appellant had committed the offence “in a highly depressed state, having set his mind on ending his life.”  In those circumstances, he went on to say of the appellant that he “…in no sense resembles the usual robber for whom such a sentence would normally be appropriate, either as a punishment for the crime of or as a deterrent to others or both.” [15]  In the result, the court substituted an order of probation coupled with conditions, including that he comply with the directions of a psychiatrist or psychiatric nurse.

The respondent’s submissions

29.For the respondent, Mr Derek Wong opposed the application and submitted that in the circumstances of this case the applicant’s suicidal intent should not be treated as a mitigating factor. 

30.Of the applicant’s complaint that the judge had failed to have proper regard to the circumstances of the applicant and his family, Mr Wong invited the Court to note that the judge had stated that he had regard to those matters.[16]  He submitted that the judge was correct to go on to determine that, nevertheless, those circumstances “…did not derogate from the fact that the applicant had behaved in a consciously irresponsible manner which posed danger” to others.

31.Mr Wong also pointed out that two of the cases [17] cited by the applicant were not dangerous driving cases.  He submitted that, for dangerous driving cases, the Court should place more weight on the deterrent effect of sentencing,[18] rather than on the applicant’s personal circumstances.

32.Of the authorities, cited by the applicant, concerning dangerous driving, Mr Wong submitted that there were also cases which showed that the sentence imposed in the present case was not excessive.  He submitted that the present case is similar to HKSAR v Andrianiaina Adrien Luck Yu Pau [19].  In that case this Court had approved of a starting point for sentence for the offence of dangerous driving of 24 months’ imprisonment in circumstances where the applicant had driven a light goods vehicle, which he had stolen earlier reversing it against the flow of traffic and then had driven it ramming into four street stalls before he once again reversed the vehicle against the flow of traffic and then drove it onto the pavement, damaging two shop premises and a restaurant, before coming to a stop after colliding with a set of traffic lights and metal railings on the pavement.  He drove under the influence of the abuse of Ice.

33.Mr Wong submitted that sentencing for this type of offence was very dependent on the particular circumstances of each case.  In the present case the applicant’s suicidal, dangerous and irresponsible driving brought the case into a very serious category.

A consideration of the submissions

34.As noted earlier, the judge said that he had considered the reports the preparation of which he had ordered and said that he accepted that at the time of the events the subject of the charges the applicant “…had been going through a rough stage of his life.”  He went on to say “…he might even be suicidal at some point, but both the psychologist and the psychiatrist stated that there is no pathological reason to the offences.”

35.In her report, Dr Dorothy Tang, a visiting psychiatrist at the Siu Lam Psychiatric Centre, expressed the opinion that the applicant had “an adjustment problem to the debt issue and was under alcohol intoxication at the time of index offence.” [20]  Dr Amy Liu expressed a similar opinion, namely that the applicant was “…having alcohol intoxication at the material time of index offence.  He was having adjustment problem to financial stress at that time as well.” [21]  Both of them expressed the opinion that the applicant did not require psychiatric treatment.

36.Having regard to that evidence, it is relevant to note that, by contrast, in HKSAR v Ng Oi Cheung evidence had been received by the Court that the appellant suffered from a psychiatric disorder.  Ms Daisy Yeung, a clinical psychologist described the appellant as having laboured under an “accumulation of stress” brought on by constant financial pressure, which had caused him to be “severely depressed at the time of the offence”.[22]  Dr Amy Liu diagnosed the appellant as “suffering from a ‘Recurrent Depressive Disorder’ which…. when her report was written, was described as a ‘Moderate Depressive Episode’.” [23]  It was her opinion and recommendation that the appellant would be assisted by out‑patient treatment.

37.Clearly, the circumstances which precipitated the intervention of this Court in HKSAR v Ng Oi Cheung were quite different from the circumstances obtaining in the applicant’s case.  Although the judge acknowledged of the applicant that he “might even be suicidal at some point”, clearly he did so having regard to the fact that, although the applicant had an “adjustment problem” in respect of his debts, he was not subject to the consequences of having a psychiatric disorder.  In making that observation, no doubt the judge was also mindful of the very lengthy time during which he drove dangerously and the various different dangerous manoeuvres he performed.

38.In all the circumstances, in my judgment it is not reasonably arguable that the judge erred in determining that the “…only valid mitigating factor” was the applicant’s plea of guilty.[24]

39.The judge described the facts relevant to the case of the Secretary for Justice v Ko Wai Kit Paul as being that:[25]

“… the defendant drove against the traffic, jumped the red light and was pursued by the police. During the car chase that ensued, his vehicle struck a petrol-tanker and two private cars while he was driving through a gap between them, ramming a police vehicle against the concrete barrier of a flyover and whilst driving through another junction, caused a police officer to draw his revolver and fire at his car. Later, the defendant drove past the hard shoulder to ream (sic) the opposite lane where he drove against the traffic. After colliding with a taxi and three private cars, the defendant reversed and damaged another lorry and three police motorcycles.”

40.It is to be noted that the circumstances which led to the police officer drawing and firing his revolver at the respondent’s car were that the respondent was evading an improvised roadblock created by the police officer, who had cause to fear by the manner in which the respondent steered the vehicle through a gap in the roadblock, that he would be run over.  Not surprisingly, in the judgment of the Court Stock JA, as Stock NPJ was then, described the fact that the respondent was driving under the influence of having abuse Ice as an aggravating factor in the commission of the offence.  Determining that the starting point of 2 years’ imprisonment stipulated by the judge for sentence in respect of the charge of dangerous driving and the resulting sentence of 12 months’ imprisonment imposed for that offence, following his conviction on his plea of guilty, was manifestly inadequate this Court said that the respondent’s dangerous driving fell in the “broad band of the worst type of case of dangerous driving”.[26]  Stating that the respondent was nevertheless to be afforded the “full discount for the plea of guilty”, this Court substituted a sentence of 2 years’ imprisonment for the offence of dangerous driving.[27]  Then, this Court quashed the sentence of one week’s imprisonment that the judge had imposed for the offence of resisting police officers in the execution of their duty.  In its place, the Court substituted a sentence of 12 months’ imprisonment, ordered to be served consecutively to the sentence of 2 years’ imprisonment. Accordingly, the total sentence of imprisonment imposed on the respondent was 3 years’ imprisonment.

41.Mr Yuen’s challenge to the judge’s determination that the applicant had used his own motorcar “as a weapon to ram against other vehicles” was misconceived.  The Summary of Facts made crystal clear the basis on which the applicant accepted his culpability.  The term “rammed” was used in that document to describe the manoeuvring by the applicant of his car resulting in three separate collisions with other vehicles.[28]  The conduct leading up to the three separate collisions with those vehicles was described as the applicant “suddenly swerved to the right”, “suddenly accelerated and cut into the 2^nd lane” and suddenly accelerated and rammed into the rear of a white private car” respectively.  By contrast, the forth collision was described as the applicant’s manoeuvre resulting in a “slight collision” between the two vehicles.  In all the circumstances, I am satisfied that it is not reasonably arguable that the judge erred in determining that the applicant had used his motor vehicle as a weapon to ram other vehicles” and in stating that the conduct posed “obvious dangers to the police and any bystanders.”

42.There is no doubt that the judge identified correctly the factors of aggravation in the commission of the offence of dangerous driving. It was committed over a period of about 30 minutes and involved driving over a considerable distance, on some occasions at greatly in excess of the speed limit, during which time the applicant had no fewer than four collisions with other moving vehicles, in three of which he had rammed the other vehicle.  He drove with an alcohol content in his blood which exceeded the legal limit.  Further, he deliberately ignored the orders of police officers, both in the course of pursuit and when called upon to stop at the roadblock.

43.In my judgment Mr Wong was correct to submit that the circumstances of aggravation of the commission of the offence of dangerous driving in the Secretary for Justice v Ko Wai Kit Paul were more serious than in the case of this applicant. There, the respondent had abused Ice and admitted driving under its influence.  In the applicant’s case it is to be noted that the content of alcohol in the applicant’s blood in excess of the legal limit, constituted a Tier 1 offence only.

44.The judge’s stipulation of a starting point for sentence of 30 months’ imprisonment for the offence of dangerous driving, rather than the starting point of 3 years’ imprisonment stated by this Court in the Secretary for Justice v Ko Wai Kit Paul to be the appropriate starting point, distinguished appropriately the lower gravity of the commission of the offence by the applicant.

Conclusion

45.In all the circumstances, in my judgment no reasonably arguable grounds of appeal against sentence have been advanced on behalf the applicant.  Accordingly, I refuse the application for leave to appeal against sentence.

46.The applicant is advised that he has the right to renew his application for leave to appeal against sentence to the Full Court but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.

Mr Derek Wong, SPP, of Department of Justice, for the respondent.

Mr Anthony Yuen, instructed by Vremeli Chan & Co., for the applicant.