HKSAR v. Chan Chi Man

CACC 262/2018

[2019] HKCA 38

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 262 OF 2018

(ON APPEAL FROM DCCC NO 965 OF 2017)

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Before:  Hon Zervos JA in Court

Date of Hearing:  4 January 2019

Date of Judgment: 4 January 2019

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.This application by the applicant for leave to appeal against sentence out of time is devoid of merit and therefore refused.

2.On 11 June 2018, following his plea of guilty to dangerous driving (Charge 2), driving whilst disqualified (Charge 3), and using a motor vehicle without third-party insurance (Charge 4) in the District Court before Judge Casewell (the judge), the applicant was sentenced overall to 20 months’ imprisonment and disqualified from driving for a period of 4 years. Charge 1 was the offence of driving in excess of the speed limit which was left on the court file and marked not to be proceeded with without leave of the court.

3.On 3 September 2018, the applicant filed a notice of application for leave to appeal against sentence out of time.  He complains that his term of imprisonment and period of disqualification were excessive when compared with other similar cases.  He provides no explanation for the delay in filing the application.  See HKSAR v Medina and Another, CACC 296/2007, 31 January 2012, unreported, at paragraph 12.

4.At the hearing, when the applicant was asked why his application was out of time, he said that he initially accepted the sentence but changed his mind when he discussed his case with other inmates. He requested that the term of imprisonment be reduced and that the disqualification period be reduced by one third because his driving licence had expired and if he takes a driving improvement course within three years there will be no necessity to reapply for his driving licence.

5.I do not accept the explanation for the delay in filing the application and I find his requests for a reduction in the term of imprisonment and the disqualification period to be without merit.

6.The applicant was a taxi driver who at the time of the offence was driving his taxi whilst disqualified from driving.  He had numerous traffic offences, the vast majority involved him exceeding the speed limit.  He had also received periods of disqualification because of his traffic violations.

7.The traffic offences to which the applicant pleaded guilty arose in the following circumstances.  On 27 April 2015, he was driving a taxi with a passenger when he was checked by police using a laser gun to be driving at a speed that far exceeded the speed limit.  He was pursued by a police officer on a motorcycle who eventually caught up with him and directed him to stop the taxi.  He pulled over but then sped off.  The police officer on the motorcycle pursued him.  The applicant in the course of the chase travelled at very high speeds, weaving in and out of traffic on the motorway.  He eventually came to a set of traffic lights where motor vehicles were stationary.  He was unable to break in time and had to travel between the lanes of traffic, causing damage to about eight vehicles and injuring some of the occupants of the vehicles as well as his passenger.  It was mere happenstance that no one was seriously injured.

8.The judge sentenced the applicant as follows. On the most serious charge of dangerous driving, Charge 2, he noted that the maximum sentence for the offence was 3 years’ imprisonment with a compulsory disqualification from driving.  He considered that the driving of the applicant was “reckless in the extreme”, putting the lives of other persons at risk, and falling into the category of the worst case of its kind. He adopted a starting point of 30 months’ imprisonment which he reduced by one third for the applicant’s plea of guilty to 20 months’ imprisonment.  He ordered that the applicant be disqualified from driving for a period of 4 years and that he take a driving improvement course within the last 3 months of the disqualification period.  On Charge 3, he adopted a starting point of 3 months’ imprisonment which he reduced by one third for the applicant’s guilty plea to 2 months’ imprisonment.  On Charge 4, he adopted a starting point of 6 months’ imprisonment which he reduced by one third for the applicant’s guilty plea to 4 months’ imprisonment.   He also ordered that the applicant be disqualified from driving for a period of 18 months.  Taking into account totality, he ordered that the terms of imprisonment and the periods of disqualification all run concurrently.

9.Neither the term of imprisonment, nor the period of disqualification could be said to be manifestly excessive or wrong in principle.  In fact, the applicant is fortunate that the overall term of imprisonment and the period of disqualification were not higher.  In respect for the term of imprisonment for dangerous driving, see SJ v Ko Wai Kit [2001] 3 HKLRD 751; HKSAR v Lam Shun Choi, CACC 402/2002, 7 May 2013, unreported; and HKSAR v Pang Ho Yin Patrick, CACC 283/2013, 15 April 2014, unreported.  In respect of the disqualification period, see SJ v Hung Ling Kwok [2010] 4 HKLRD 365, at paragraph 11.

10.The applicant’s attempt to diminish his culpability by comparing the circumstances of his case with others, only highlights the seriousness of his offending.  He was driving his taxi whilst disqualified from driving.   He was driving in an extremely dangerous and reckless manner in order to evade apprehension by the police.  He put at serious risk the lives and property of other persons.  His driving resulted in a series of collisions with other vehicles resulting in injury to other persons and damage to property.  This case fell into the category of the worst case of its kind and warranted severe punishment.

11.It is worth noting that in Ko Wai Kit at paragraph 27, this Court, took the opportunity to comment on the inadequacy of the maximum term of 3 years’ imprisonment for the offence of dangerous driving, contrary to section 37 of the Road Traffic Ordinance, Cap 374.  That was a little over 17 years ago.  It is hoped that this and other cases illustrate the need to set a maximum that will appropriately punish offenders who put at risk the lives and property of others by their dangerous driving.

12.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Annie Li, PP of the Department of Justice, for the respondent

The applicant appeared in person