HKSAR v. Yip Sing Yeung

CACC 216/2021

[2022] HKCA 175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 216 OF 2021

(ON APPEAL FROM DCCC NO 510 OF 2021)

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Before:  Hon Macrae VP in Court

Date of Hearing:  25 January 2022

Date of Judgment:  25 January 2022

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J U D G M E N T

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1.On 1 September 2021, the applicant was sentenced to 20 months’ imprisonment by HH Judge Casewell (“the judge”) in the District Court following his pleas of guilty to four charges, namely: (1) dangerous driving^[1]; (2) driving a motor vehicle without proper control under the influence of a specified illicit drug^[2]; (3) driving without a valid driving licence^[3]; and (4) using a motor vehicle without third party insurance^[4]. He was further disqualified from driving for 5 years, fined HK$1,500 and ordered to take and complete a driving improvement course.

2.On 28 September 2021, the applicant gave notice of his intention to apply for leave to appeal against sentence.  However, this morning he informed me in person that he wished to abandon his application for leave.  I did not accede to his application given the lateness of the application after the case had been called on.

The summary of facts

3.The four charges originated from the same incident, in which, at about 0050 hours on 17 May 2020, the applicant, who at the time had no valid driving licence and was under the influence of methamphetamine (commonly known as “Ice”), drove a rented private car past a police roadblock dangerously and at high speed, and subsequently crashed into a crash barrier, severely damaging the vehicle.  The applicant was not covered by third party insurance, since he was not an approved driver of the vehicle.  At the time there was another passenger on board.

4.Breaking down these facts in more detail, the applicant had been signalled to stop by a police officer at a police road block on Ma On Shan Road.  He initially slowed his car down as requested but, as soon as the officer gestured for him to drive into a checking area, he suddenly veered away, accelerated rapidly past the officer and drove on towards Ma On Shan roundabout at high speed.  The police gave chase and the applicant’s vehicle collided with a crash barrier at the roundabout near Hang Hong Street, some 600 metres away from the roadblock (the 1^st Charge).  The applicant and the passenger Ms Chen emerged from the private car and attempted to flee on foot.  Upon being intercepted, the applicant admitted under caution that he had fled because his licence had been suspended.

5.The applicant failed a Drug Recognition Observation test at the scene and was duly sent to a hospital for a blood sample to be taken.  A Government Chemist’s report revealed 0.23µg/ml of methamphetamine in his blood (the 2^nd Charge).  The applicant’s driving licence had expired on 23 November 2015 (the 3^rd Charge).  Accordingly, he was not an approved driver of the vehicle, which was a hired car, and was therefore uninsured (the 4^th Charge).  No mechanical defects were found on the vehicle.

6.The particulars of dangerous driving admitted by the applicant^[5] were that he failed to stop his vehicle at the checking area, accelerated suddenly thus disregarding the safety of other road users, and failed to control the car properly; thereby falling well below the standard expected of a competent and careful driver, to whom it would be obvious that driving in such a way would be dangerous.

Mitigation

7.The applicant was 44 years of age and had a 6-year-old son with his fiancée, Ms Chen.  He was the sole support of his elderly parents and his son.  On 15 May 2020, he had consumed “Ice” and, on the night of the incident, was driving Ms Chen home.  At the time, he had applied for the renewal of his driving licence.

8.It was said that the traffic was light at the time, there was no prolonged act of dangerous driving and nobody was injured in the incident.  It was submitted that the applicant drove the car away from the road block “out of momentary impulse”, since he knew he did not have a valid driving licence.  The applicant was said to have participated in voluntary and charity work and was deeply remorseful for his conduct.

Reasons for sentence

9.The judge took into account that the applicant had a number of previous convictions including similar driving offences: the applicant had been sentenced to 2 years’ imprisonment in 2012 for dangerous driving, driving whilst disqualified and using a motor vehicle on a road without third party risk insurance, which sentence was made to run consecutively to 20 months’ imprisonment for possession of dangerous drugs and paraphernalia; and also drug-related convictions including trafficking in dangerous drugs, for which he was sent to prison for 4 years and 1 month.  The applicant had only been released from prison in 2020^[6]. 

10.In relation to the 1^st Charge, the judge stated that while there were no sentencing guidelines for dangerous driving, the presence of an illicit drug in the applicant’s blood had the effect of increasing the maximum sentence by 50%.  Taking into account all the circumstances, and bearing in mind, in respect of the offence of dangerous driving, the need for deterrence and instilling social responsibility in drivers, and the aggravating factors of the applicant’s criminal record, the presence of “Ice” in his body and his attempt to flee the scene, the judge adopted a starting point of 30 months’ imprisonment.  This he reduced to 20 months for the applicant’s guilty plea.  The applicant was further disqualified from driving for a period of 5 years.

11.In respect of the 2^nd Charge, the judge adopted a starting point of 27 months’ imprisonment, which he reduced it to 18 months for the applicant’s guilty plea.  He also made a disqualification order for 5 years.  For the 3^rd Charge, the judge imposed a fine of HK$1,500.  In respect of the 4^th Charge, the judge sentenced the applicant to 8 months’ imprisonment and disqualified him from driving for 3 years.

12.All of these sentences were ordered to run concurrently with each other, the resulting sentence being 20 months’ imprisonment and 5 years’ disqualification.  The applicant was further ordered to take and complete a driving improvement course within 3 months of the expiry of the disqualification order.

Ground of appeal

13.Although he indicated that he wished to abandon his appeal, the applicant initially complained that the sentence of imprisonment was manifestly excessive, given that the judge had indicated at the hearing that he would treat the applicant as a “fresh offender”, his previous similar convictions having been recorded more than 6 years before the commission of the present series of offences.

Respondent’s submissions

14.Mr Ira Lui, for whose thorough submissions I am grateful on behalf of the respondent, noted that the applicant was a persistent offender in respect of both road traffic and dangerous drug offences, and had been sentenced to lengthy terms of imprisonment for both types of offence.  Moreover, he had repeatedly committed offences of driving whilst disqualified, and hence using a vehicle without third party insurance, on four occasions between 2008 and 2011.  It was pointed out that the applicant had committed similar traffic offences (dangerous driving, driving whilst disqualified and using a motor vehicle without third party insurance) as well as drug offences in another case before the District Court, namely, DCCC 1273/2011, on which occasion the applicant had also driven at high speed and violated traffic regulations in order to avoid police detection, resulting in multiple collisions and injuries to a pedestrian, for which he was sentenced to 2 years’ imprisonment in respect of the traffic offences and disqualified from driving for 6 years. However, the applicant was evidently undeterred by the sentences imposed on him, and re-offended by driving under the influence of “Ice” a month after his release from prison.   Mr Lui stressed that the judge was entitled, indeed, duty bound, to enhance the starting point in order to achieve the necessary element of deterrence.

15.In relation to the 1^st and 2^nd Charges, it was submitted that the instant case was a bad one, given, firstly, the applicant’s attempt to renew his driving licence was not viable, it having expired for more than 3 years^[7]; secondly, he was a repeat and persistent offender, the offending pattern being very similar to the facts disclosed in DCCC 1273/2011; thirdly, it was a matter of sheer luck and happenstance that nobody, including his passenger, was injured. 

16.It was argued that, in view of the serious nature of the facts and the obvious need to deter the applicant from further re-offending, the starting points of 30 months’ and 27 months’ imprisonment adopted in respect of the 1^st and 2^nd Charges respectively were both within the permissible range.  As for the 5-year disqualification period, it was in fact the statutory minimum for the 2^nd Charge and, since the disqualification orders were ordered to run concurrently, there could be no conceivable complaint.

17.Concerning the applicant’s complaint about not being treated as a “fresh offender”, Mr Lui submitted that section 37(3) of the Road Traffic Ordinance^[8], by using the word “may” in the subsection, did not create an obligation on the part of the judge to treat the applicant as a first offender.  Given the applicant’s extremely poor, and similar, criminal record, there was no cogent basis or justification for the court to do so; moreover, the applicant had actually been in prison for some 5 years and 8 months of the period between 2012 and 2020. 

18.In relation to the 3^rd Charge, Mr Lui submitted that the fine of HK$1,500 imposed was a lenient one: under section 42 of Road Traffic Ordinance, upon a second or subsequent conviction, an offender was liable to a fine at Level 3, namely HK$10,000, and imprisonment for 6 months.

19.Finally, in respect of the 4^th Charge, the judge apparently adopted the maximum sentence of 12 months’ imprisonment as the starting point, as well as 3 years’ disqualification.  Referring to the considerations discussed by Deputy Judge To in magistracy appeal HKSAR v Kwan Chi Wah^[9], Mr Lui submitted that the applicant had driven without a licence and insurance coverage, notwithstanding that he had a passenger on board.  Furthermore, it was the applicant’s fifth conviction for this offence.  Accordingly, the judge was entitled to impose an enhanced sentence of 8 months’ imprisonment after plea.

20.Ultimately, the sentences on all four offences were ordered to be served concurrently.  In all the circumstances, the respondent submitted that the sentences passed could not be said to be either wrong in principle or manifestly excessive.

Consideration

21.There is absolutely no merit in the application.  Given the applicant’s appalling record and disregard for the orders of the court, as well as the manifest dangers inherent in his driving when lawfully required by a police officer to stop his vehicle for inspection, not just to the police and other road users but to his own passenger, there is no reasonable argument that the sentence was either manifestly excessive or wrong in principle.  Having been shown the photographs of the damage to the car and the crash barrier this morning, it was a sheer matter of luck that no one was injured or worse.  The applicant could not have complained if he had received an even longer overall prison sentence.

22.As for the argument that the applicant should have been treated as a “fresh offender”, I am satisfied that that was a matter for the judge’s discretion.  Given the applicant’s previous extensive and similar criminal record, it was not appropriate for the judge to exercise that discretion in the applicant’s favour.

23.I should advise the applicant that he has the right to renew his application for leave to appeal to the Court of Appeal but, in view of my remark that the overall sentence could have been longer, he should be warned that the Court of Appeal has the power to order the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.

Mr Ira Lui ADPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1]  Contrary to section 37(1) of the Road Traffic Ordinance, Cap 374.

[2]  Contrary to section 39J(1) of the Road Traffic Ordinance, Cap 374.

[3]  Contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374.

[4]  Contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

[5]  Admitted Facts: Appeal Bundle (“AB”), p 7, at [8].

[6]  The respondent has clarified that the applicant was released from prison on 9 April 2020, one month before the instant offence.  The date referred to in the judge’s reasons for sentence (AB, p 11S-T), namely, 4 September 2020, was not correct.

[7]  Regulation 15(6) of the Road Traffic (Driving Licences) Regulations, Cap 374B.

[8]  Section 37(3) reads: “The court or magistrate may deal with the conviction of an offence as a first conviction if, as at the date on which the offence was committed, at least 5 years have elapsed since the person’s last conviction under subsection (1)”.

[9]  HKSAR v Kwan Chi Wah [2000] 2 HKLRD 667.  The considerations included: (1) the knowledge of the defendant; (2) the risk to which the public was exposed; (3) the duration during which the vehicle was not covered by insurance; (4) the type and user of the vehicle; and (5) the consequences of the failure to insure and whether the risk materialised.