Secretary for Justice v. Ho Ken Wai Alex and Others

[English Translation - 英譯本]

CAAR 3/2022

[2023] HKCA 84

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 2022

(ON APPEAL FROM STCC NO. 485 of 2021)

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REASONS FOR JUDGMENT

Hon Pang JA (giving the Reasons for Judgment of the Court):

1.The four respondents (D1 to D4) pleaded guilty to a total of 24 charges, among which the more crucial ones were: Charge 1, “motor racing” (against D1 to D4 jointly); Charges 2, 9, 13 and 20, “dangerous driving” (against D1 to D4 individually); and Charges 3, 10, 14, and 21, “using a motor vehicle without third party insurance” (against D1 to D4 individually) whilst the remaining 15 charges were related to non-compliance with various requirements on the vehicle specifications of the four offending vehicles.

2.In respect of the two offences, abbreviated as “motor racing” and “dangerous driving”, the trial magistrate (Mr Wan Siu-ming, Jason) imposed community service orders on all the respondents as follows[1]: D1 (a 200-hour community service order for each of Charges 1 and 2, but to run concurrently); D2 (a 240-hour community service order for each of Charges 1 and 9, but to run concurrently); D3 (a 240-hour community service order for each of Charges 1 and 13, but to run concurrently); and D4 (a 200-hour community service order for each of Charges 1 and 20, but to run concurrently).

3.The applicant was dissatisfied with the above sentences on the grounds that they were wrong in principle and/or manifestly inadequate, and therefore made an application for review to the Court of Appeal pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong. After the formal hearing, we allowed the application for review of sentence and substituted the respective sentences of the respondents with two months’ imprisonment with immediate effect. Our reasons are detailed below.

Summary of Facts

4.At 0556 hours on 30 August 2020, the police spotted that on Tsuen Wan Road, the speed limit of which being 70km/h, vehicles V1 and V2 were travelling abreast at high speed along the second and third left lanes, and following V1 were vehicles V3 and V4. As shown from the results of laser gun speed detection, the speed of V1 was 199km/h, while those of V3 and V4 were no less than 160km/h.

5.At 0557 hours on the same morning, V1 to V4 were stopped in front of a roadblock set up by the police. At 0635 hours, D1 to D4, the respective drivers of the above four vehicles, were arrested. Meanwhile, the police found that there was a male passenger on board each of V1 to V3. Under caution, D4 admitted that he “drove a bit too fast” whereas the others remained silent.

6.The footage from the dashboard camera of V4 showed that at 0425 hours in the early morning of 30 August, V1 to V4 drove off from an unnamed road near Sha Tin Racecourse. Following that, save for a brief stopover at Kowloon Bay from 0439 to 0452 hours (when D1 to D3 were captured alighting from the vehicles and having a conversation), V1 to V4 sped along the New Territories South, Kowloon West, Kowloon East, as well as the trunk roads and other roads linking between Hong Kong Island East and Hong Kong Island South during the whole time. By the time they returned to the New Territories South and were stopped on Tsuen Wan Road, the total travelling distance of the four offending vehicles reached up to 101 kilometres.

7.The dashcam footage also showed that V1 to V4 were, over a long period of time, travelling at excessive speed, overtaking other vehicles, travelling in the opposite direction of the traffic as well as repeatedly cutting lanes at high speed. Upon counting, they were found to have breached various traffic regulations for a total of 146 times, a breakdown of which was set out in Annex B[2] to the admitted facts at trial. In respect of the speeds, the following table was set out in paragraph 10 in the same set of Admitted Facts for reference[3]:

	Location	Average speed (km/h)	Speed limit
i	Lung Cheung Road outside Wong Tai Sin Centre (Kwun Tong bound)	175 ± 18	70
ii	Kwun Tong Bypass (Kwun Tong bound)	160 ± 16	80
iii	Island Eastern Corridor (Sheung Wan bound)	170 ± 17	70
iv	Gloucester Road (Sheung Wan bound)	189 ± 19	70
v	Kwun Tong Bypass (Mongkok bound)	198 ± 20	70
vi	Lung Cheung Road (Tsuen Wan bound)	168 ± 17	70
vii	Tsuen Wan Road (New Territories bound)	179 ± 18	70

Respective Backgrounds and Mitigation

8.D1, aged 32 at the time of sentencing, was married with two children. He was a contractor providing tail lifts installation services for lorries and was the main source of income of the family. In his spare time, he often participated in volunteer work. D1 was of clear criminal record but he had records of non-compliance with various requirements on vehicle specifications as well as fixed penalties (such as “speeding”). For the present offence, D1 said he felt deeply remorseful. He pleaded for the court to give him a chance.

9.D2, aged 35 at the time of sentencing, was married with two sons. He was a contractor providing container yard services and was the sole breadwinner of the family. D2 had 3 dated criminal convictions (such as “selling infringing copies of copyright works”, “drug trafficking”, “theft”) and records of non-compliance with various requirements on vehicle specifications as well as fixed penalties (such as “speeding”). He felt deeply remorseful for his present offence and hoped that the court would give him a chance.

10.D3, aged 23 at the time of sentencing, was single. He worked at his father’s toy model company, but after the occurrence of the present case, he entered into a partnership and started a business of renovation works. He had two criminal convictions involving a total of 7 counts of offences, all of which were traffic-related (such as “taking conveyance without authority”, “driving a vehicle without a driving licence”, “driving without third party insurance”). In addition, he had records of non-compliance with various requirements on vehicle specifications as well as fixed penalties (such as “careless driving”, “speeding”, “failing to comply with road traffic signs”). D3 suffered from attention deficiency and dyslexia but had an affection for driving. For the present case, D3 felt deeply remorseful and he had learnt his lesson. Since his plan to emigrate with his family to another country was profoundly affected, he pleaded for the court’s “exceptional mercy”.

11.D4, aged 39 at the time of sentencing, was an ambulanceman. He supported his ailing mother all on his own and often participated in volunteer work in church. D4 was of clear criminal record but he had records of fixed penalties (such as “careless driving”, “speeding”, “failing to display vehicle licence”, and “driving in a prohibited zone”). Because of the present case, D4 had lost his prospects for promotion and would even lose his job at the Fire Services Department if a custodial sentence was imposed on him. The defence urged the court to deal with D4 leniently in view of the fact that the case took place late at night when the traffic flow was relatively light and no accidents were caused.

The Original Sentences

12.The trial magistrate did not prepare any written reasons for sentence for the present case and, in the bundle, there were only the transcripts of the audio-recording of the stages when the guilty pleas were entered and sentences were passed.

13.The relevant transcripts can be divided into two parts. The first is, at the completion of mitigation, what the trial magistrate said in addressing his decision to call for community service reports before sentencing. The trial magistrate had already pointed out at that time that the footage from the dashcam was “outrageous”, and for most of the time it was like “viewing the footage in the fast-forward mode”[4] and “playing a video game”[5], but he concluded by saying the following:

“  Well, what the court would like to make clear is, in fact, the court remains of the view that the present case is of considerable seriousness. It is because basically, your entire act, the criminal act, covered areas in Hong Kong, Kowloon and the New Territories for a rather long time. I have heard a great deal of mitigation, but—it is not the fault of defence counsel, but I have not heard how you feel your acts have affected others; in other words, you simply said you had let your families down and this and that about your families…

In fact, what appears most appalling, most appalling to me is… is how you have affected other road users. For example, I saw from a footage just now depicting that there was possibly a minibus passing next to you. What if the minibus had crashed after you had passed? Or what if a novice driver had been startled by what you did, then rammed his vehicle into a wall and died? Those people might also be suffering from ADHD, or they might also have two young children…

So, in fact—well, from what I have said so far, it does appear to me that I should impose custodial sentences on all of you. However, I have heard the mitigation of all of the four defendants, and note in particular that two of them are of clear records and one of them is even an officer of the Fire Services Department. Well, it appears to me that I have—that is, adding all of these things up, I have some hesitation. If I have hesitation in deciding the sentence immediately, I prefer not to make a decision which I cannot be certain about; that is, counsel have made me unable to reach an immediate decision on sentence, so I believe they have helped you a lot.

Especially for D3—in fact, your situation is the worst, meaning your criminal record. In fact, having regard to your previous convictions, I think it would be most appropriate to order immediate imprisonment; it might be wrong—possibly be wrong to impose a community service order. Yet, as to whether a chance should be given to you, since I have given other defendants a chance, well, does it mean I should also offer you a chance to talk to the probation officer as well? If that is so, I may just go ahead and give it a try. However, perhaps you still remember the fact that you had breached the community service order imposed a few years ago, right? You were sentenced to the Rehabilitation Centre as a result.”

14.The second part of the transcript relates to the day of sentence.

15.The trial magistrate repeated at the very beginning, “from any point of view”, the present case was serious among cases of a similar nature because the traffic offences committed could be described as “countless”, and they were committed over a long period of time as well as a long distance. These acts were “absolutely” selfish, dangerous and in total defiance of the safety of other road users in view of the huge population and high traffic load in Hong Kong[6].

16.The trial magistrate then went on to say, “taking into account the precedent cases”, imprisonment was, of course, one of the sentencing options. When the “line” had been crossed, that is to say, if traffic accident was involved, immediate custodial sentence would almost for certain be imposed. However, in the present case, neither traffic accident nor injury to person nor damage to property was involved[7].

17.After that, the trial magistrate returned to the issue[8] of the four respondents’ different backgrounds, which had been bothering him prior to calling for reports:

“  All the defendants have pleaded guilty. Some of them have better backgrounds, better records or clear records, and others have records that are relatively worse, like D3. The court finds that sometimes it is quite difficult to determine a sentence on this type of case. If actual damage has been caused to others, sentencing would certainly be easier. For example, if you had caused grievous bodily harm or death to others, then sentencing would have been very straightforward, but that would involve a different charges. Nevertheless, when such incidents do take place, usually the cause is, first of all, a bad driving attitude, and people driving with a bad attitude time and time again until such incidents happen. Therefore, if we have to prevent those incidents from happening, in fact, there should be some—that is, we have to start by preventing people from having a repeatedly bad driving attitude before any feasible discussions about avoiding deaths or injuries caused by this can take place. This is because if a harsh sentence is passed only after death is caused by driving, even if a term of life imprisonment is passed, it would be meaningless to the deceased and far too late. Other drivers are still doing the same every day as if it is none of their business, despite the fact that there are cases of driving causing death listed before the District Court every week.

Therefore, the court finds that a sentence with significant deterrence is invariably called for. Of course, the court has already stated that even though no actual injury or death was caused in the present case, the inherent risk must not be ignored. If the court is only dealing with D2 and D3, in fact, the court is almost certain that immediate custodial sentences would be imposed. However, there are four defendants, D1 to D4, in the present case. The court does not deny that the circumstances of D1 and D4 are relatively better; that is, if the court is purely dealing with D1 and D4 in the present case, the court may not need to take into account so many things, and may be more inclined to impose a non-custodial sentence.

However, the present issue is—right, there are four defendants with different previous criminal records and backgrounds. Well, for example, it appears to the court that D2 has a poor driving attitude as well as a bad criminal conviction record. D3’s is even worse as he had committed similar offences—that means, serious traffic-related offences several years ago, and had even lost his freedom as a result, but he committed an offence again. So, comparatively speaking, in sentencing D1 and D4, it appears to the court that—if the court is minded to impose a non-custodial sentence, the court is of the view that D1 and D4 are more worthy of a chance, while D2 and D3 are less worthy of a chance.

Nevertheless—well, having considered all the circumstances of the whole matter, the court is of the view that the levels of culpability of the four defendants in the present case are indistinguishable. The court has noted that, in sentencing defendants who participated in the same act, if the court imposes custodial sentences on two of the defendants and other alternative sentences, meaning non-custodial sentences on the other two defendants, will there be a great disparity between sentences? After further consideration, for D2, although he has a poor criminal record involving serious convictions, the court accepts that they were about ten to twenty years ago. The probation officer particularly had D2 undergo some urine tests during the adjournment, because D2 had some previous convictions involving serious dangerous drugs offences. However, there was—the result showed that he did not come into contact with dangerous drugs during the period, so it seems that D2 has truly rehabilitated except for his bad driving attitude.

The circumstances of D3 are even more complicated. The court accepts the submission by counsel that D3’s personal circumstances are exceptional in nature. The court is of the view that when dealing with defendants of exceptional personal circumstances, in fact, regardless of the gravity of the offences, all must be taken into consideration before sentence, as everyone is—is different. The court accepts that D3’s personal circumstances are somewhat more difficult than the other defendants. It is also noted that—he is 23 years old; he—the court pointed out earlier that at the time when he committed the offences back then in 0—’15 or ’16, he had just attained full age or might have even been still a minor.

If—that is, the court has carefully considered all these, that is—in particular that the defence has repeatedly emphasised the family support of D3, which has really made the court hesitate for quite some time, but, finally, the court has decided to give D3 one last chance.”

18.Lastly, this is the formal sentence[9] ：

“  Having said so much, after considering all the circumstances, the court is of the view that for D1 and D4, the court will accept the recommendations in the reports to impose community service orders on them both in respect of Charges 1 and 2. As for D2 and D3, the court is of the view that their cases are rather marginal, but eventually, the court has been convinced to give them one last chance, especially for D3. Hence, the court orders that in respect of the charges—their respective charges of careless driving—dangerous driving and motor racing be dealt with by way of community service orders, but of different lengths because of their respective circumstances.”

Review before the magistrate

19.The prosecution had tried to apply to the trial magistrate for rectifying the above sentences pursuant to section 104 of the Magistrates Ordinance.

20.It was the prosecution’s stance[10] that the trial magistrate himself had agreed that the present case was serious, or even particularly serious[11], so that a sufficiently deterrent sentence had to be imposed. Hence, any length of community service order or even suspended sentence would be inappropriate. Moreover, there was no special circumstance at all in relation to any of the four respondents which warranted the court to exercise leniency in sentencing. The prosecution did not make any suggestion as to the appropriate term of immediate imprisonment; it was to be left to the court to decide[12]. Lastly, the prosecution was of the view that the trial magistrate should not be excessively fettered by the issue of disparity in sentence, so much so that he had to reluctantly pass lenient sentences on other respondents[13] as he had to be lenient to those respondents with better backgrounds.

21.The trial magistrate refused to accept the prosecution’s proposition.

22.The trial magistrate mentioned that, according to his experience, the number of “drink driving” cases was ten times or even a hundred times more than that of “motor racing” cases. Moreover, the offenders of “drink driving” might not be able to control the vehicles; in other words, they might be driving unconsciously. Therefore, they had to be deterred too. However, when he had sentenced the offenders of two “drink driving” cases to prison for several weeks, the sentences he had imposed were criticised as excessive and quashed by the higher court[14].

23.The trial magistrate went on to state that he agreed that a custodial sentence should be imposed for the present case, but the term should be no more than 3 months based on his personal judgment. Therefore, according to the authorities, he should consider an alternative type of sentence, namely, a community service order[15]:

“Magistrate:	Actually the first question is whether a custodial sentence should be given for this. I agree with the imposition of a custodial sentence. No one will argue about this, right? The only next question is, apart from a custodial sentence, whether there is any alternative to the custodial sentence. A community service order is one of them; it is obviously an option. Okay, for instance, the sentence for this (offence) should be 8, 9 or 10 months’ imprisonment according to precedents. In fact, although some of my learned colleagues would impose a suspended sentence or community service order for an offence attracting 8, 9 or 10 months’ imprisonment – I do not agree with this. I think a community service order should not be an alternative if such a heavy sentence should be imposed. However, I have referred to the precedents. For this offence, coupled with the facts of the present case and the defendants’ backgrounds, I think I will not impose a sentence exceeding 3 months’ imprisonment. If you are talking about such a short-term imprisonment, is it possible to impose a community service order of a great length under the circumstances of their guilty pleas – that means, their showing remorse? Well, according to precedents, there are no precedents saying that – at least there are no precedents saying that – a community service order cannot be imposed as an alternative for an offence of this type; that is the conclusion. There was a precedent saying that a community service order should not be imposed for a serious fraud or ICAC case, but that is no longer the situation. As you all know, CSOs have been imposed for many ICAC cases, right? It is because the gravity of cases vary. Well, I, I agree that the present case cannot be said to be not serious in terms of road racing. I think it is serious, but there are surely more serious cases in road racing, right? For example, there are cases causing accidents, injuries or deaths, or damage to properties etc., but none of these are involved in the present case. Of course, the court is aware of those aggravating features, and I mentioned them all in the previous occasion, right.
MS HO:	Mm.
Magistrate:	Right, that is why it is not 160 hours or 180 hours, but 200 and 240 are to be imposed. Right, that is, to me, I almost have never imposed 240. This is because if I considered 240 for some cases, I was in fact considering imprisonment. Anyway, sorry, sorry.”

24.As for avoiding disparity in sentence, the trial magistrate clarified that it was merely one of the considerations[16], and not a decisive one.

25.In conclusion, the trial magistrate reiterated, amended and/or pointed out that the present case was serious, an immediate custodial sentence was one of the inevitable options. The question was whether there were any alternative options. Regarding this question, the precedents were of limited assistance as no guidance in this regard had been made. Despite the gravity of the present case, it happened in the small hours with light traffic flow, and no accidents, loss of life or damage to properties were caused. Hence, if a custodial sentence were to be imposed, the term would not have exceeded 4 months in view of the fact that the maximum penalty is 12 months’ imprisonment. In other words, the community service order, which also served a deterrent effect, could be imposed as an alternative according to the authorities. Lastly, all four respondents had pleaded guilty in a timely manner to indicate remorse. D2 and D3 had relatively worse previous records. The criminal records of the former were dated ones, while the latter “might have committed the crimes as affected by his physical condition”. In other words, the court had imposed community service orders on all the respondents not because of the fear of disparity in sentence. All in all, the relevant decision was undoubtedly lenient, but it had struck a balance between the factors advanced by both the prosecution and the defence. Thus, no change would be needed.

This application for review

26.Mr Man Tak Ho, Jonathan, Deputy Director of Public Prosecutions, is not the same prosecutor who lodged an application for review to the trial magistrate. The reasons and submission he relied on in this review are as follows.

(1.  The trial magistrate underestimated the gravity of the charge and the culpabilities of the four defendants)

27.The maximum sentences for “motor racing” and “dangerous driving” (summary offences) are both 12 months’ imprisonment. Since no sentencing guidelines have been laid down by the Court of Appeal for the offence of “motor racing”, the court can sentence the offenders only based on the individual circumstances of each case, such as the way of driving and the threat posed to other road users. In any event, the Court of Appeal has repeatedly emphasised that the sentencing norm for “motor racing” is a short-term immediate imprisonment so as to deter others from participating in any form of motor racing. See its relevant representation in R v Yuen Kwok-hung & Others [1983] 2 HKC 682 (page 689E to I), R v Chan Chin Pang & Others [1991] 2 HKC 378 (pages 382H to 383B), HKSAR v Leung Wai Wo & Others HCMA 825/1999 (paragraph 30).

28.The above-mentioned precedents all showed that an immediate custodial sentence was the sentencing norm for the offence of “motor racing” even if there were no people injured or properties damaged. The facts of the present case are more serious than those of these precedents, and a sentence sufficient to reflect the gravity of the facts should be imposed. Nevertheless, the trial magistrate gave too much weight to the point of “no substantive damage was caused” but failed to fully consider the potential danger of the offence of “motor racing”. As a result, the sentence of the present case was not sufficiently deterrent, and it was not able to appropriately reflect the culpabilities of the respondents.

(2.  The trial magistrate did not consider or fully consider the aggravating factors of the present case)

29.The gravity of the facts of the present case was stated in detail in the admitted facts. With reference to R v Cooksley [2003] 3 All ER 40, a landmark case of “dangerous driving causing death”, at least three aggravating factors were present (paragraph 15 of the judgment): 1. Greatly excessive speed; racing; competitive driving against another vehicle, showing off; 2. A prolonged, persistent and deliberate course of very bad driving; 3. Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking). According to the same precedent, a case would fall under the category of a higher culpability if one or two aggravating factors mentioned above is/are present (paragraph 25 of the judgment), and it would fall under the category of the most serious culpability if three or more aggravating factors are present (paragraph 28 of the judgment). As applied in the present case, regarding the offence of “dangerous driving”, the case would fall under the category of the most serious culpability.

(3.  Absence of highly exceptional circumstances in the present case to cause the trial magistrate to depart from the sentencing norm of similar cases)

30.The Court of Appeal indicated in Yuen kwok-hung that a deterrent sentence not being applicable to first-time offenders is only a general rule, which may not be applicable to serious and deliberate driving offences (page 688D-H). This is the first point. Nonetheless, it has already been explained in precedents that in offences of gravity, losing a job and having a clear record would count very little or even pale into insignificance: R v Maclennan [1996] 4 HKC 507 (page 514D–E); HKSAR v Law Num Chun [2014] 5 HKLRD 500 (paragraphs 29-30); Chan Chin Pang (pages 382I–383B). In fact, the four respondents are far from having no previous traffic convictions and the conviction records of D2 and D3 are particularly bad. Thus, there is no reason to depart from the sentencing norm.

(4.  A community service order is not an appropriate option for the present case)

31.It has been illustrated in the precedents that although a community service order is not a soft option, it is a softer option than a custodial sentence: HKSAR v Wan Ka Kit [2006] 3 HKLRD 9 (paragraph 31). Moreover, unless the circumstances are highly exceptional, a community service order is generally not applicable to offences of gravity; or, if the offence is on its facts too serious, a community service order is also not applicable even if the offender meets all the relevant criteria: HKSAR v Po Yan Chuen [2002] 2 HKC 172 (p.174); HKSAR v Wong Yiu-kuen [2002] 1 HKLRD 712 (page 718A-C). “Motor racing” itself already poses a great threat to other road users; added to that are the serious facts of the present case and the bad records of the four respondents; as such, a community service order is clearly not an appropriate sentence.

Respondents’ rebuttal

(D1, D2, D4)

32.Mr Ngai was not the defence counsel at trial. He represented D1, D2 and D4 in this review. His key submissions are set out below.

33.It can be seen from the content of the two decisions of the trial magistrate that he did not underestimate the seriousness of the case, and he also clearly pointed out that deterrent sentences had to be imposed on all the respondents. He finally imposed community service orders because, first, he considered the circumstances of the present case to be minor compared to the cases cited by the applicant, such as Yuen Kwok-hung, in which 44 persons were involved but the sentence was only two months’ imprisonment. Second, he considered that this type of sentence would be sufficiently deterrent such that all the respondents would not re-offend and that the essence of the judgment in Chan Chin Pang was to deter an offender from re-offending.

34.The sentencing norm is not a straitjacket. The “dangerous driving” case of HKSAR v Chan Fung and another HCMA 426/2016 is an example. In that case, four motorcycles were travelling at excessive speed in the opposite direction of the traffic at the reported racing scene for up to seven minutes. However, upon appeal, the sentences of 8 to 12 weeks’ imprisonment were substituted by community service orders. The question is whether the court was justified in departing from the general term of imprisonment in question. The trial magistrate, having considered the length of the sentence and the respective backgrounds of the respondents, imposed community service orders instead of imprisonment, and he did not err in his decision in this regard.

35.The applicant submitted that community service orders were not applicable to serious offences, but the cases cited were more extreme ones such as burglary and conspiracy to defraud. On the other hand, there are still cases where non-immediate custodial sentences were imposed for “motor racing”, such as the suspended sentence in AG v Tam Chi-man & Others [1981] HKEC 8. In addition, a community service order was not a sentencing option until November 1992 in the Magistrates’ Court and until May 1998 in the District Court and the High Court. Therefore, the suggestion of an immediate imprisonment being the sentencing norm for “motor racing” cases, as mentioned in Yuen Kwok-hung (1983) and Chan Chin Pang (1991), is of limited application.

36.Assuming that imprisonment should really be imposed in the present case and that the starting point should be two months’ imprisonment, and further assuming that the respondents would get another one-third remission for good behaviour in prison, then the actual sentence they would serve would only be 20 odd days. In addition to the fact that D1, D2 and D4 have all completed their community service orders, it would undoubtedly be too harsh to send them to prison at this stage. Therefore, even if the original sentences were wrong and should be rectified, the best way to deal with the matter would be to impose suspended sentences on the respondents.

37.Finally, when enquired by this court, Mr Ngai stated that the present case was, according to his personal judgement, of medium seriousness. In view of the maximum statutory sentence for the offence of “motor racing” being 12 months’ imprisonment, when further enquired by this court what should be the starting point for such an offence of medium seriousness, Mr Ngai replied that it would be two to three months’ imprisonment.

(D3)

38.Mr Martin Hui SC has been representing D3 since the original trial.

39.There was some overlap between his submissions and those of Mr Ngai’s. For instance, the cases of Yuen Kwok-hung, Chan Chin Pang and Leung Wai Wo were more serious than the present one, but the sentences were only two months’ imprisonment; there was no community service order at the time of Yuen Kwok-hung and Chan Chin Pang, so it would be inappropriate to over interpret them; although community service orders do not apply to serious cases, the charges involved in these cases were all very serious; and the trial magistrate had accurately identified the aggravating factors in the present case without omission, and so on.

40.In addition, Mr Hui SC agreed with the observation of the trial magistrate that the analogy between the offence of “drink driving” and the present case was the most relevant because, apart from speed, alcohol could also affect the offender’s reactions, judgement and the control of the vehicle. However, despite the fact that “drink driving” is more common, a sentence of 4 weeks had been quashed many times: HKSAR v Leung Ka Sing [2021] HKCFI 3638; HKSAR v Wong Chi Hang [2021] HCFI 1032 (Wong even had a previous similar conviction).

41.Mr Hui SC further submitted that it was not uncommon for a “dangerous driving” case to be dealt with by way of a non-custodial sentence. The case of Chan Fung, cited by Mr Ngai, is one of the examples. Another example is HKSAR v Au-Yong Shong Samuel HCMA 831/2006, where the three-month imprisonment term was substituted with a 200-hour community service order and a fine, despite the fact that the act of dangerous driving took place while the defendant was intoxicated and a motorcyclist on the road was injured.

42.In conclusion, Mr Hui SC emphasised that since the trial magistrate did not overlook any factors affecting the sentence, he had certain discretionary power in sentencing by treating each respondent relatively more leniently; the Court of Appeal should not re-sentence them simply because of having a different view on the weight to be given to those factors: SJ v Wong Chi Fung (2018) 21 HKCFAR 35.

43.Leaving that aside, even if the Court of Appeal considers that the original sentences were wrong in principle or manifestly inadequate, there are quite a number of local cases where the Court of Appeal had refused review applications on the basis that it would be unduly harsh to sentence those concerned to immediate imprisonment. Given that D3 had also completed his community service order, and the decoration business he had set up with his friend(s) was moving on the right track, coupled with the fact that his symptoms since childhood were indeed related to the commission of the offence, the Court of Appeal had sufficient grounds to uphold the sentences.

Analysis and discussion

(Respondents have different backgrounds)

44.The trial magistrate had once made it clear that he was in a difficult position as a disparity in sentence would possibly arise due to the respondents’ different backgrounds. For this reason, we did peruse the respondents’ reports and their respective criminal and traffic conviction records. We found that D3’s previous record of vehicle-related convictions, for which custodial sentence had been imposed on him, was indeed bad[17]. However, if the trial magistrate considered that D3 (and/or D2) was materially different from the others, there was no reason for him to lean towards a lighter sentence in order to avoid a disparity in sentence. Such an approach was unnecessary and wrong in law. Of course, the trial magistrate clarified in his review decision that this was only one several considerations, but it was undoubtedly an admission that he had been influenced by an irrelevant factor.

(“Motor racing” and “drink driving”)

45.As we pointed out at the hearing, “motor racing” is “motor racing” while “drink driving” is “drink driving”. Participation in “motor racing” must be conscious and deliberate, whether it is premeditated or provoked in the moment immediately before the offence. The threats posed by “motor racing” to other road users are also immediate, relatively real and inevitably greater when racing at high speed in unsuitable environments. On the contrary, the actual driving standards of “drink drivers” may not necessarily be worse than usual, assuming that they are aware that they have consumed alcohol or that they have consumed excessive alcohol. The cases of Leung Ka Sing and Wong Chi Hang cited by Mr Hui SC are examples of this. That is, the judgments in both cases did not mention anything wrong with the way of driving on the part of Leung and Wong, and Leung’s breath alcohol concentration was only 3 micrograms above the limit. For the avoidance of doubt, this Court does not consider that “motor racing” must be more serious than “drink driving”. Rather, there are fundamental differences in the composition of the two offences and they should not be equated with each other simply because the perpetrators of both offences may lose control of their vehicles. If the trial magistrate fell into this trap, and mistakenly thought that a lesser sentence must be imposed for an offence of “motor racing” because several sentences he had imposed for “drink driving” had been quashed (and he indeed appeared so), his whole sentencing approach would be incorrect. In short, he had been influenced by another irrelevant factor.

(D3’s health condition)

46.This refers mainly to D3’s attention deficiency and dyslexia. As the authorities cited by Mr Hui SC show, in order to constitute an effective mitigating factor[18], the defendant must prove that there is a causal relationship[19] between his offence and his health condition. For example, a brain tumour affects judgement and causes a defendant more likely to steal: DA Thomas, Principles of Sentencing, 2^nd edition, p. 216. For further discussion and how mental illness cannot fully cancel out the need for general deterrence, please refer to Cross & Cheung, Sentencing in Hong Kong (2022), para 6-41, p. 115. The problem is that there is absolutely no information in the present case to show the above-mentioned causal relationship. What D3 submitted was just a summary of his physical and intellectual assessment as a child at 9 years and 9 months in 2007, with the conclusion being “attention deficiency, symptoms of ADHD symptoms / dyslexia”. In fact, if D3’s mitigation had been interpreted correctly, he was only saying that he had poor academic performance and deep frustration due to deficit of attention and so on, but he obtained satisfaction from driving, and that’s why he kept re-offending. But this was not an effective mitigating factor according to the authorities. Of course, there was no bar to the court’s exercise of discretion in dealing with D3 in a more lenient manner. However, since deterrence had to be the primary consideration in sentencing “motor racing”, it was impossible for the degree of leniency to be so extreme that even the sentencing option, namely, the type of sentence, would be affected. A contrary and more robust view would be that the sentence should actually be enhanced as D3 had not been deterred and had re-offended. In any event, the trial magistrate did not only fail to show that he had a proper grasp of the above principles, but he even stated that he had “always” and “resolutely thought” that the relevant circumstances were “grounds for mitigation” despite some of his “learned colleagues thinking otherwise”. Therefore, obviously he had erred on this issue[20].

(Sentencing norm for “motor racing”)

47.As just mentioned above, deterrence must be the primary consideration in sentencing “motor racing”. This is indisputable and it includes a deterrence to the offenders and a general deterrence. For reasons, see the judgments in Yuen Kwok-hung, AG v Tam Chi-man and Chan Chin Pang. Simply put, it is “motor racing” that seriously threatens the safety of other road users.

48.To show that deterrence is important and cannot be ignored, Cons JA in Yuen (p. 688 C to D) cited what was said by the magistrate when he passed the sentence:

“  The term should be short, but not so short as to constitute a temporary inconvenience in the lives of the appellants. I considered that there was a risk that the degree of organisation which prompted this race could be repeated in the future, and there was therefore the need to fix a term of imprisonment which would be a deterrent to any persons contemplating repeating such a race.”

Then, the observation of the Court of Appeal in Tam (p. 689 B–D):

“  It cannot be stressed too strongly that persons who make use of a public highway for the purpose of racing … have engaged in conduct of a kind which merits the strongest condemnation in respect of which custodial sentences will generally be justified, all other factors in the individual case being taken into account.”

And it was further strengthened in the end (p. 689 H to the bottom of the same page):

“  I respectfully agree with the Court of Appeal that custodial sentences are justified. For my own part, I would go further and say that they are imperative, unless there are very special considerations. In Tam Chi-man’s case, the court thought fit to suspend the sentences that it imposed. No reason is expressly given but it would seem to follow, from the words used, that it was done to reflect the fact that the proceedings then before the court were by way of review on the application of the Attorney General.”

49.Coming back to the present case, the respondents have been questioning how meaningful the strong statements of Cons JA and the Court of Appeal can still be today when a community service order has become an option for sentencing. However, in our view, that is really an issue which is more imaginary than real. It can be seen from the judgments of the two relevant cases that deterrence should be emphasised in sentencing because “motor racing” can harm the innocent public at any time. This is the primary point with important policy considerations, which have not changed to date, and should not change. As for immediate imprisonment being a general way to deal with such cases, it was not the case that there was completely no room for manoeuvre even back then. As an illustration, it was mentioned in Tam that it “depends on all relevant factors in the case”[21] and in Yuen that it ‘“lacks very special circumstances”[22]. Of course, Cons JA also pointed out that he did not think that the practice of not imposing deterrent penalties on first-time offenders was applicable to serious and deliberate driving offences[23], thereby reinforcing deterrence.

50.Based on the above understanding, we think that even though time has passed and nowadays a community service order is found to have a deterrent effect second only to immediate imprisonment, immediate imprisonment is still the first sentencing option for “motor racing”. If the facts of the case are really minor, and the defendant involved can meet the conditions for performing the community service order, and/or there are other very special circumstances in the case, it cannot be ruled out that a community service order may be imposed instead. However, in balancing the interests of the public and those of the defendants’, deterrence remains the primary consideration.

(The seriousness of the present case)

51.Regarding the seriousness of the present case, the trial magistrate had pointed out its characteristics, such as long duration, long distance, high speed and frequent dangerous actions. However, those few features failed to fully reflect the gravity of the facts of the case. For example, the admitted facts of the case showed that there was one male passenger on each of the vehicles V1 to V3. However, the trial magistrate did not mention a single word of it. This is a serious omission. With the presence of passengers, the threat to other road users would not have been simply conceptual. On the contrary, these three people were in danger all the way. They were completely different from other passers-by who might or might not be present. The second fact that the trial magistrate did not mention was that the cars involved in the case had stopped briefly in Kowloon Bay, and D1 to D3 had gotten out of the car to talk. This get-together, which was undoubtedly related to their “motor racing”, showed that everyone knew each other and there was a certain degree of planning. The third point is the route chosen by the respondents, that is, the two-lane two-way winding little road where it was difficult for drivers to see on-coming cars, as well as the urban trunk roads where there were cars and people around even when it was still early in the morning. These two situations were pointed out by this court in the hearing –they greatly increased the chance of accidents and the number of people who might be affected. However, the trial magistrate did not specifically mention them. Finally, the trial magistrate had repeatedly emphasised that there was no accident caused in the present case. This statement is questionable. This is because if an accident had been caused and other people had been injured, even if they were only the three passengers on board, the charges faced by the respondents would have been far more serious than the current ones. In any event, since the trial magistrate had repeatedly emphasised this point, one would have reason to believe that he had misled himself in the sentencing process.

(The proper sentence)

52.To sum up, the trial magistrate failed to grasp accurately enough the gravity of the case, the individual culpability of the respondents, and the proper primary consideration in sentencing “motor racing” offences. As a result, the sentences imposed were wrong in principle and manifestly inadequate. We are of the view that due to the factors mentioned above, the acts of “motor racing” and “dangerous driving” in the present case should be classified as very serious, and immediate imprisonment is the only appropriate and correct punishment. It applies to D3, and also to D1, D2 and D4, who had better records, equally. In terms of the sentence, both Mr Ngai and Mr Hui, SC had cited Yuen Kwok-hung and AG v Tam Chi-man and had compared them with the present case. They asserted that although the sentences in Yuen and Tam were light, the facts were more serious than those in the present case. However, we disagree.

53.There were 44 defendants in the Yuen case in the first instance, and seven of them lodged an appeal. They were alleged to be taking part in a planned “motor racing” involving 60 to 70 cars. The facts of the case were that the vehicles sped out of a parking lot in Ting Kau, and then chased one another westward along Castle Peak Road. During the period, the speed was as high as 60 to 70 miles per hour (120 to 140 kilometres), but some vehicles were intercepted by the police pre-deployed on Castle Peak Road. As for the driving skills of those involved and whether any real danger had been caused, the judgment did not say much. From the description of the whole matter in the judgment, it appears that the distance and time involved in the “motor racing” would not be long. In the end, the seven defendants who had pleaded not guilty were all convicted and sentenced to 2 months’ imprisonment. The convictions and sentences were upheld in the subsequent appeal.

54.The Tam case involved four riders among 10 motorcycles involved in the incident. They admitted that they had “raced” from Caine Road, Queensway and Gloucester Road up to Tai Hang Road, and their speed gradually increased from the initial 60 miles (120 kilometres) to the 90 miles (180 kilometres) when they were stopped. In the period, they overtook one another, crossed left and right between vehicles and crossed double white lines and so on. However, in the end they were leniently sentenced by the magistrate, and only given a fine and disqualification order. They were sentenced by the Court of Appeal to 2 months imprisonment suspended for 1 year upon review.

55.It can be seen from the summary above that, although the scale of the present case was not comparable with those in Yuen and Tam (especially the Yuen case), the distance, duration, road conditions and actual act of dangerous driving involved in the present case were more serious due to late discovery or other reasons. In addition, both Yuen and Tam were cases in the early 1980s, when the maximum statutory sentence for “motor racing” was only 6 months; hence, the sentence of 2 months’ imprisonment (being no different for a guilty plea in one case and a not guilty plea in the other) could not be considered not too light. Finally, after 40 years of development, Hong Kong’s urban density and traffic volume are no longer what they used to be in those years, and the threat posed by “motor racing” to the public has become greater as a result. In addition, the relevant maximum statutory sentence has been increased to 12 months, and so the penalty should be heavier to accurately reflect that the act of “motor racing” is not acceptable to society nowadays.

(Conclusion)

56.An imprisonment of 8 months should be adopted as the starting point for the offences of “motor racing” and “dangerous driving” in the present case. The respondents have pleaded guilty and are entitled to a one-third deduction. The sentence will be reduced to 5 months and 10 days. Since they have completed the relevant community service orders in full, and this being a review of sentence, the sentence will be further reduced by 3 months and 10 days to 2 months.

Order

57.This Court orders that the sentences imposed on the four respondents for the offences of “motor racing” and “dangerous driving” be set aside, and substituted with an imprisonment of 2 months each, to run concurrently, with all ancillary orders related to these two offences and all sentences for the other charges upheld.

Mr Joshua J Ngai, instructed by Wai & Co., Solicitors, for the 1^st, 2^nd and 4^th Respondents.

Mr Martin ST Hui, SC and Mr Dixon SC Tse, instructed by Anthony Siu & Co., for the 3^rd Respondent.

Mr Jonathan TH Man, Deputy Director of Public Prosecutions, and Ms Karinna LU Lai, Public Prosecutor, Department of Justice, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.