Case Document

100%Judiciary

CACC 272/2017

[2018] HKCA 219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 272 OF 2017

(ON APPEAL FROM DCCC 326 OF 2017)

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BETWEEN
	HKSAR	Respondent
	and
	MUHAMMAD WAQAS (華加士)	Applicant

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Before: Hon McWalters JA in Court

Date of Hearing: 17 April 2018

Date of Judgment: 26 April 2018

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J U D G M E N T

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1.The applicant appeared in the District Court before Deputy District Judge M Chow (“the judge”) on 4 August 2017 and pleaded guilty to 10 offences. On 11 August 2017 he was sentenced to a total period of 2 years and 9 months’ imprisonment. He subsequently applied for leave to appeal his sentences.

2.At the hearing of the application I reserved my judgment which I said I would hand down in due course. This is my judgment.

The charges

3.Between 19 and 20 December 2016 the applicant stole a motor vehicle and this led to him being charged with theft, contrary to section 9 of the Theft Ordinance, Cap 210. In order to conceal that the vehicle was stolen he covered the number plate with another number plate. This resulted in him being charged with using markings on a vehicle with intent to deceive, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374.

4.On 20 December 2016, while driving this stolen motor vehicle, the applicant was involved in a motor vehicle accident with two other vehicles. This led to him being charged with careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap 374. The applicantfled the scene of the accident and this led to him being charged with failing to stop after an accident whereby damage was caused to another vehicle, contrary to section 56(1)(b) and (5) of the Road Traffic Ordinance, Cap 374 and because he did not make a report to the police he was charged with failing to report an accident involving damage, contrary to section 56(2A) and (6) of the same ordinance.

5.As the applicant did not possess a driving licence at the time he was driving the stolen vehicle he was also charged with driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374. Because the vehicle was stolen the applicant was driving it without the permission of the owner and as a result it was a vehicle which was not covered by third party insurance. This led to the applicant being charged with using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

6.When the applicantfled the scene of the accident he left within the stolen motor vehicle items which could identify him. He therefore decided to make a false report to the police of having been robbed of these items in order to explain away their presence in the stolen vehicle. This led to him being charged with making false report of the commission of an offence, contrary to section 64(a) of the Police Force Ordinance, Cap 232.

7.He was ultimately arrested and when taken to Tuen Mun Police Station, he managed to escape and this led to him being charged with escape from lawful custody, contrary to common law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Upon being recaptured shortly thereafter, he was found to be in possession of 0.89 gramme of a powder containing cocaine. As a result he was charged with possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

The sentences imposed by the judge

8.The sentences imposed by the judge for each of the offences were as follows:

Charge no.
Offence Starting point Sentence

1
Theft 3 years 2 years

2
Using markings on a vehicle with intent to deceive 12 months 8 months

3
Careless driving 3 months 2 months

4
Driving without a valid driving licence 4½ weeks 3 weeks

5
Using a motor vehicle without third party insurance 4½ months 3 months and 24 months’ disqualification order for not driving any type of vehicle from the date of conviction.

6
Failing to stop after an accident whereby damage was caused to another vehicle 4½ months 3 months

7
Failing to report an accident involving damage 3 months 2 months

8

Making false report of commission of offence

3 months

2 months

9

Escape from lawful custody

6 months

4 months

10

Possession of a dangerous drug

12 months

8 months

9.Having reached these individual sentences for each charge the judge then addressed the issue of totality and decided that the sentences for charges 2 to 7 and charges 9 to 10 should run concurrently with each other but that 4 months of the sentences for charges 2 to 7, one month of charge 8 and 4 months of the sentences for charges 9 to 10 should all run consecutively to the sentence for charge 1. By this route the judge arrived at a total sentence of 2 years and 9 months’ imprisonment and a 24 months’ disqualification order.

The applicant’s grounds of appeal

10.The applicant is unrepresented and has not filed any Perfected Grounds of Appeal. In a document attached to his Form XI he has complained that the judge who sentenced him did not consider the sentences imposed in similar cases. He also complained that though he was driving a stolen vehicle he said he did not steal it and he also said that this was his first time to commit offences of this nature.

11.At the hearing of the application the applicant orally submitted that the disqualification period of 2 years was excessive and that normally the disqualification period is only one year. He also said that the sentence for the possession of a dangerous drug offence was excessive and that persons charged with such an offence frequently only received sentences in a range of 6-9 months whereas he was sentenced to one year.

The respondent’s submission

12.Ms Catherine Ko, Senior Assistant Director of Public Prosecutions, for the respondent, referred the court to section 4 of Cap 272 which provided a disqualification period ranging from 12 months to 3 years and submitted that it was up to each judge to consider, within the circumstances of any particular case, the appropriate period of disqualification. It was a matter of sentencing discretion and there was nothing to suggest in the present case that, in determining a disqualification period of 2 years was appropriate for this applicant, the judge’s sentencing discretion had miscarried.

13.Ms Ko adopted her written submissions where she referred to a number of sentencing cases and submitted that in respect of the individual sentences imposed by the judge there was nothing to indicate a departure by the judge from any sentencing guidelines or pattern of sentencing in respect of these offences.

14.In respect of the careless driving offence Ms Ko accepted that a sentence of 3 months was unusual but emphasized that this was not just a simple accident. Nevertheless she had to concede that there was nothing to indicate that the applicant had deliberately rammed into the other vehicles which were damaged in the accident.

15.In respect of the possession of dangerous drugs sentence, again, Ms Ko accepted that the sentence was on the high side. This concession was made because the narcotic quantity of the powder was so small that the Government Chemist was unable to quantify it.

Discussion

16.There are three matters that are of concern to me in this application for leave to appeal. The first is the sentence for the careless driving offence, the second is the custodial sentences for charges 5 to 7 and the third is the sentence for the possession of a dangerous drug offence.

17.I am not persuaded that it is reasonably arguable that the judge imposed an excessive disqualification period in respect of charge 5. Nor do I find any of the other complaints of the applicant reasonably arguable.

18.In respect of the careless driving offence, the Amended Summary of Facts revealed that the applicant and two other vehicles were stopped at a set of red traffic lights on Kowloon-bound Hoi Hing Road, which consisted of two lanes. The applicant was driving the stolen vehicle in the right lane and the two other vehicles were in the left lane. All the vehicles were stationary and as to the how accident happened the Amended Summary of Facts set out only the following circumstances:

“… Suddenly, V1 steered left and cut into the left lane abruptly. As a result, the left front part of V1 collided with the right rear part of V3. The left rear part of V1 also hit the right front bumper of V2. The cost of repair of V2 is $4,000 and the cost of repair of V3 is $13,800.”

19.The applicant was driving the vehicle referred to as V1 and in the course of mitigation it became apparent that the cost of damage to the stolen vehicle was $8,000. This meant that the total cost of the damage to all three vehicles was $25,800.

20.In the course of his address in mitigation the applicant’s counsel at trial said:

“Concerning the 3^rd charge of careless driving, at the material time the defendant was very nervous and caused this accident.”

Nothing else was said about how the accident occurred.

21.In her Reasons for Sentence the judge said of this offence:

“33. Charge 3 is the careless driving offence. Taking into account that it was a stolen vehicle, further aggravated by pre-meditation of using a false number plate without valid driving licence and third party insurance, bad driving manner and judgment, I am satisfied that a starting point of 3 months is appropriate. I reduce to 2 months because of his guilty plea.”

22.I am satisfied that it is reasonably arguable that by her comments the judge has, in effect, double punished the applicantby taking into account the facts that the offence of careless driving occurred whilst he was driving a stolen vehicle bearing a false number plate and whilst not having a valid driving licence and third party insurance. All of these aggravating factors were the subject of separate offences for which he was being separately punished. However, this only goes to the appropriateness of the individual sentences and by itself would probably not impact upon the overall sentence in view of the orders made as to concurrency and consecutiveness of the various sentences.

23.Clearly, the careless driving offence occurred through bad driving by the applicantand poor judgment by him in his control of the vehicle. Nevertheless, I am satisfied it is reasonably arguable that, given the minor damage to the vehicles and the absence of any evidence of injury to the persons in those vehicles, a sentence of imprisonment was not justified for this offence.

24.In respect of the other road traffic offences that are the subject of charges 5 to 7 I say no more than that there appears to be no appellate sentencing guideline on these offences and it is reasonably arguable that custodial sentences, especially of this length, for a first offender, are excessive.

25.However, there is one matter on which I do wish to raise a query. It is in respect of the offence of failing to stop after an accident whereby damage was caused to another vehicle, contrary to section 56(1)(b) and (5) of the Road Traffic Ordinance, Cap 374. Section 56(1)(b) imposes on drivers an obligation to stop for breach of which subsection (5) created an offence punishable by a fine of $10,000 and imprisonment for 12 months.

26.The obligation to stop is drafted as follows:

“56. Duty to stop in case of accidents

(1) Where, owing to the presence of a vehicle on a road, an accident occurs whereby –

…

(b) damage is caused to –

(i) a vehicle other than that vehicle …

…

the driver of that vehicle shall stop.”

27.This section has in fact been the subject of comment by the Court of Final Appeal in HKSAR v Chan Chi Keung[1] where Chan PJ, in giving the reasons for judgment of the court, at page 140, paragraphs 14-15 said of section 56:

“The s.56 regime

14. No one will dispute that traffic accidents are a serious social problem. It is in the public interest that drivers are only permitted to drive their vehicles on the road subject to the strict regulatory controls provided by the Road Traffic Ordinance. One of the regulatory measures is s.56 which imposes various obligations on a driver involved in a traffic accident: he must stop his vehicle after the accident (s.56(1)); he must provide certain particulars to the police or any involved person upon request (s.56(2)); and he must report the accident to the police within strict time limits (s.56(2A) and (3)).

15. This section is obviously aimed at overcoming the difficulties created in hit and run cases. It serves several important practical purposes: it enables the driver and other involved parties to find out what has happened, to ascertain the extent of the injury to any person or the damage to any vehicle, animal or any other thing and to see whether any medical attention is needed for the injured person or veterinary attention for the damaged animal; it also enables necessary follow up actions to be taken by the police immediately, including investigations and preservation of evidence for use in any future prosecution or civil claim and prompt actions to be taken by the authorities to remove any obstacle to the free flow of traffic.”

28.The Court of Final Appeal was not concerned with what was actually required of a driver by the obligation “to stop” and so the case provides no assistance on this element of the offence.

29.In the facts of the present case the applicant did stop his vehicle but then fled the scene as described in the Amended Summary of Facts as follows:

“6. PW2 and PW3 then got off V2 to confront the driver of V1 (later confirmed to be the Defendant). PW3 tried to open the door of the driver’s seat of V1 but it was locked so PW3 broke the window of the driver’s seat of V1 with his elbow and he also tried to pull the Defendant out of V1. The Defendant then kicked the driver’s seat door open and PW2-3 tried to grab hold of him. However, the Defendant struggled and managed to make good his escape.”

30.In these circumstances it seems to me that the facts only support the offence if the obligation “to stop”, which I take to be an obligation on the driver to “stop his vehicle”, is construed as also including an obligation on the driver of the stopped vehicle “to remain at the scene”. I simply raise this issue for the consideration of the parties.

31.In respect of the possession of a dangerous drug offence the charge itself does not make any mention of the narcotic content of the powder. It refers to the dangerous drug as simply being “0.89 gramme of a powder containing cocaine.”

32.The Amended Summary of Facts set out the applicant’s explanation for how he came to be in possession of this powder and the result of the Government Chemist’s testing of it:

“21. PW10 then arrested the Defendant for ‘Possession of a Dangerous Drug’. Under caution, he admitted that he had picked it up at an adjacent cell.

22. The Government Chemist subsequently confirmed that the resealable plastic bag contained 0.89 g of a powder containing traces of cocaine.” (Emphasis added.)

33.In his address in mitigation his trial counsel said only the following in respect of this offence:

“Concerning the 10^th charge, actually I submit that he did in control, physically in control of the drugs. My instruction is that he tell the truth to the police.”

34.In her Reasons for Sentence the judge simply said:

“48. This is a charge of simple possession - 0.89 grammes of a powder containing cocaine - and there is authority to say that usual sentence is in the range of 12 to 18 months. In view of the quantity of the drug offence, I take 12 months as the starting point, reduce to 8 months.”

35.I take the judge’s reference to the sentencing range of 12 to 18 months for simple possession of a dangerous drug as being a reference to the sentencing guideline laid down by the Court of Appeal in HKSAR v Mok Cho Tik[2]. However, that case emphasised that there still remained in each judicial officer a sentencing discretion to depart from this range when the circumstances so justified. At page 267B-D Stock JA, as Stock NPJ then was, said:

“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie.”

36.By quantity I presume that Stock JA was referring to the quantity of narcotic. If that is so then what is the position when the narcotic content is so small as to be incapable of quantification? Furthermore an explanation was advanced by the applicant as to how he came to be in possession of the powder but the judge did not address that explanation.

37.I note that in HKSAR v Ramirez[3] the Court of Appeal was dealing with a similarly pleaded possession of dangerous drug charge. In this case the Court of Appeal reduced the judge’s starting point of 18 months to 9 months.

38.In HKSAR v Chan Sung Wing[4] the Court of Appeal said of a simple possession offence involving “possession of 0.1 gramme of a solid containing cocaine and 0.02 gramme of a powder containing cocaine hydrochloride”:

“17. Turning to the first charge, the sentencing approach in possession cases taken by this Court in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 and HKSAR v Mok Cho Tik [2001] 1 HKC 261 about which we have been reminded in these proceedings, related to sizeable quantities of methamphetamine hydrochloride (ice) and heroin, respectively, but these decisions have no application to the present case which the Judge had rightly categorised as ‘very, very, very tiny.’”

39.In the particular circumstances of that case the Court of Appeal quashed the 12 months’ imprisonment sentence imposed by the trial judge and substituted for it a nominal sentence of 1 day’s imprisonment.

40.I am satisfied that it is at least reasonably arguable that circumstances existed in the present case which would justify a departure from the Mok Cho Tik sentencing guideline.

41.Before leaving this offence I should observe that it is not clear what is meant by “traces of cocaine” and I cannot help but wonder whether it could be argued that if the quantity of narcotic is so small as to be incapable of measurement, then the applicantis not in fact in possession of a dangerous drug. I note that in Archbold Hong Kong 2018 at page 1833, 29-45, under the heading “Relevance of quantity” the learned editor says:

“In order to found a conviction for the offence of being in possession of a dangerous drug contrary to section 8, the prosecution does not have to prove possession of a usable quantity of the drug, but merely possession of any quantity, however minute, providing it amounts to something. The question is one of fact for the common sense of the tribunal. If it is visible, tangible and measurable it is certainly something.”

42.However, the propriety of the conviction is not an issue that is before me. Nevertheless, on the assumption that the applicant could be properly convicted of this offence, it is relevant to the determination of a proper sentence to know whether this powder was capable of providing a drug abuser with any narcotic effect or whether in fact it was simply useless powder. This is information, which I would have thought the prosecutor would have needed in order to determine whether a prosecution for this offence was warranted, is certainly information which should be made available to the Court of Appeal at the hearing of this appeal.

Conclusion

43.For these reasons I grant the applicant leave to appeal his sentences. I also grant the applicant an appeal aid certificate pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D.