HKSAR v. Fong Chun Hei Ernie

HCMA 227/2019

[2020] HKCFI 2351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 227 OF 2019

(ON APPEAL FROM ESCC NO 846 OF 2019)

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Before: Hon Campbell-Moffat J in Court

Date of Hearing: 10 September 2019

Date of Judgment: 10 September 2019

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J U D G M E N T

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1.The appellant pleaded guilty before Principal Magistrate Mr Peter Law on 21 May 2019 to driving without the necessary lights illuminated, contrary to regulations 47(1)(a) and 61(1) of the Road Traffic (Traffic Control) Regulations under the Road Traffic Ordinance, Cap 374 (Charge 1); driving whilst disqualified, contrary to section 12(2)(b) of the Road Traffic (Driving-offence Points) Ordinance, Cap 375 (Charge 2); and using a vehicle without third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272 (Charge 3). He was sentenced to a fine of $400 on Charge 1 and to a period of imprisonment of two months on Charges 2 and 3, to run concurrently with each other. Additionally, under Charge 3 he was disqualified from holding or obtaining a driving licence for 12 months. By his Notice of Appeal dated 21 May 2019, the appellant seeks to appeal his sentence of imprisonment under Charges 2 and 3, which he submits should have been suspended or, in the alternative, a lesser period of imprisonment should have been given.

The Prosecution Case

2.The appellant was stopped by the police in the early hours of the morning of 19 January 2019 because he had failed to turn on the lights of his vehicle.  Thereafter, the police discovered that he had been disqualified for three months as a result of an accumulation of points and was therefore not covered by third party insurance.

The Defence Case

3.The appellant is 38 years of age with seven previous criminal convictions dating back to 2002 when he was 21 years old.  There do not appear to be any traffic offences shown on his Criminal Record Summary (Pol 543A), which indicates that he has been before the courts on seven previous occasions for 16 offences, mostly of dishonesty. However, the Traffic Conviction and Fixed Penalty Payment Citations submitted under section 75(1) of the Road Traffic Ordinance, Cap 374, indicates that the appellant has accrued a significant number of minor traffic violations over a four-year period.

4.There was no issue that he was disqualified at the time of his offending.  It was submitted that he had failed to disclose that disqualification to his employer as he was required to drive for his work from time to time and he did not want to lose his job.  On the night in question, he had been required to drive to the Southern District from Central.  He stopped his vehicle in a well-lit area to use the local public toilet facilities and had simply forgotten to turn on his lights. Subsequently, he had lost his job, but managed to obtain another job which was necessary for him to keep in order to provide the financial means to support his mother who lives with him.

The Grounds of Appeal

5.The appellant represented himself in this appeal.  There were no grounds of appeal or written submissions, save to say that “The circumstances of the offences and the mitigation advanced on my behalf warranted suspension of my custodial sentence(s).”  In court, he submitted a file of authorities which showed that reduced terms of imprisonment had been awarded as well as suspended sentences of imprisonment in other matters.  The appellant did accept, however, that the general guideline starting point sentence for offending of this type was one of three months’ imprisonment, which may be suspended where there were exceptional circumstances.  He submitted that this was not always the case, as evidenced by the authorities he relied upon, and that his sentence should be suspended as he was required to look after his 66-year-old mother who suffers from glaucoma. More importantly now, the appellant submits that he would lose his new job if he were to be imprisoned.

The Magistrate’s Findings

6.The magistrate was fully aware of the relevant sentencing guidelines for offences of this type which indicate that driving whilst disqualified is a breach of a court order and is taken very seriously.  There being no issue that a sentence of imprisonment was appropriate in the circumstances of this case, the issue for the court is what length that sentence should have been and whether, according to the appellant, it could have been suspended.  I see no good reason for interfering with the view of a very experienced magistrate that, against the backdrop of his motoring record, this appellant deserved a period of imprisonment of some two months after plea.  That sentence was not manifestly excessive in all the circumstances of this case.  Were there any exceptional circumstances which warranted the suspension of that sentence?  This breach of his disqualification order was, on the appellant’s own case, flagrantly committed and aggravated by the fact that he had not been using his lights in the proper manner, and I refer for those purposes to HKSAR v Chan Chuk Hon HCMA 623/2005 and HKSAR v Wong William Yee Lai HCMA 618/2013.  An offence, I note, for which he had previously been dealt with in 2018.  The fact that no accident occurred is not determinative of the appropriate sentence which is always case sensitive, as I explained.  No doubt the learned magistrate took into account the substantial number of motoring offences committed by the appellant.  Although minor, they indicate a wanton and prolonged, deliberate disregard for road traffic law and safety.  Although he did not do so, this court notes that it would also have been appropriate for the magistrate to take into consideration the fact that the appellant had previously received terms of imprisonment.  This was not the first “clang of the prison door”.

Conclusion

7.None of the factors advanced by the appellant, in isolation or in combination, justify the suspension of the sentence imposed on Charge 2 or Charge 3.  This was a flagrant breach and the appellant’s mother can be looked after by her daughter if she truly needs to be looked after.  The starting point for sentence of HK$600 for Charge 1 and three months’ imprisonment for Charges 2 and 3 respectively, thereafter reduced by one‑third to HK$400 and to two months’ imprisonment on Charges 2 and 3 to run concurrently with one another, was wholly appropriate and not manifestly excessive.  This appeal must therefore be dismissed.

Mr Eric Yung PP, of the Department of Justice, for the respondent

The appellant appeared in person