Secretary for Justice v. Liu Kwok Chun

CAAR 3/2009 and
CACC 34/2009

(Heard Together)  

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 2009

(On Appeal From District Court Criminal Case No. 325 of 2007)

----------------------

----------------------

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 34 OF 2009

(On Appeal From District Court Criminal Case No. 325 of 2007)

----------------------

----------------------

Before : Hon Cheung, Hartmann JJA and Line J in Court

Date of Hearing : 13 August 2010

Date of Judgment : 13 August 2010

Date of Reasons for Judgment : 2 September 2010

---------------------------------------

REASONS FOR JUDGMENT

---------------------------------------

Hon Cheung JA (giving judgment of the Court) :

The offences

1.The defendant was convicted after trial by H H Judge Whaley of the following four offences under the Road Traffic Ordinance (Cap. 374) (‘the Ordinance’) :

(1)    Dangerous driving causing death, contrary to section 36(1);

(2)    Failing to stop after accident whereby personal injury was caused to another person, contrary to section 56(1)(a) and (5);

(3)    Failing to report an accident, contrary to section 56(3) and (6);

(4)    Interfering with a vehicle involved in an accident causing death, contrary to section 57(1);

The applications

2.The Judge imposed a total sentence of 2 years and 8 months’ imprisonment for the offences.  The Secretary for Justice (‘the Secretary’) applied for a review of the sentence on the ground that it is manifestly inadequate.  The defendant applied for leave to appeal against conviction and sentence.  We allowed the Secretary’s review and dismissed the defendant’s application.

Facts

3.The first offence took place on 21 September 2006.  On that day at around 6 a.m., PW1 was riding her motorcycle along Castle Peak Road in the Sheung Shui direction.  The road was a dual carriage road, the other direction was towards Yuen Long.  PW1 was driving at about 50 kmph.  It was before day break and the area was dark.  When she was near a pedestrian crossing she saw a green New Territories taxi approaching her at a very fast speed from the opposite direction driving towards Yuen Long.  She noticed that the taxi had the roof taxi sign switched on and there was no passengers inside.  The headlights of the taxi were turned on.  After they had passed each other, PW1 immediately heard the sound of the horn and then a bang sound.  She looked at her rear-view mirror and saw an object lying on the ground on the Yuen Long side of the pedestrian crossing.  The object was not there when she passed the pedestrian crossing.  PW1 was a public-spirited citizen and she immediately made a U-turn and drove to the pedestrian crossing.  She saw a person lying on the road.  She immediately stopped a passing maxi-cab and used the driver’s mobile phone to call the Police.  The maxi-cab and other vehicles that arrived at the scene were directed to move to the opposite side of the road in order to avoid hitting that person.  The person was a 73 year old woman (‘the deceased’).  She was found to be dead when the ambulance arrived.

4.The deceased had left home some time after 5 a.m. to walk to the bus stop on Castle Peak Road in order to catch the connection transportation to her church.  After the accident the deceased was lying with her back facing the sky.  Her body was twisted and she had no shoes on.  The deceased’s shoes were recovered at the scene and returned to her son. 

5.PW9 who was a police traffic accident investigator subsequently found three items at the scene : two small plastic fragments which he had photographed and the third one was an L-shape item. 

6.A few days later on 25 September 2006 the Police arrived at the defendant’s home in Fairview Park.  By then the Police had received information about a New Territories taxi which was involved in three traffic accidents within the past six months and the driver on each occasion was the defendant.  When the Police arrived at Fairview Park they found a taxi was parked outside the defendant’s home.  The defendant was there.  He was wearing gloves and there were various tools on the ground.  The Police observed the taxi had damage to the radiator grill, in the middle of the bonnet and the offside headlight. 

7.When the bonnet of the car was opened in the presence of the defendant the Police discovered fixing mounts missing from the radiator grill.  The L-shape fragment which was seized at the scene matched the missing fixing mount on the offside headlight of the vehicle.  The Police removed the radiator grill and one of the two other black fragments seized at the scene matched a missing part of the radiator grill.  Later that morning the government chemist also matched the L-shape fragment to the radiator grill.

8.The defendant was interviewed by the Police.  He admitted that he was the driver of taxi.  When asked why he had been repairing the taxi outside his home, he replied that the front bonnet was dented when on 20 September 2006 a branch of a tree fell down in Kam Tin and dented the bonnet.  The defendant was asked why the offside front headlight was loose.  His reply was that on the night of 19 or 20 September 2006 the taxi had hit a dog in Kam Sheung Road and the light became loose.  On 21 September 2006 at about 6:30 a.m. he drove the taxi in order to hand it to one Mr. Lam, the day shift driver.  He told Mr. Lam that the number plate of the car had been damaged.  Later that morning the defendant bought a new number plate and he himself substituted this new number plate for the old one.

9.The defendant did not give evidence.  While admitting that he was the driver of the taxi, he denied that he was involved with the collision with the deceased.  He said between 5:30 and 6:30 am that day he was in Yuen Long.

Cause of death of the deceased

10.The deceased had multiple injuries to her head and body.  Her skull was fractured.  She also had multiple injuries to her legs.  According to the forensic evidence the deceased was hit at her left lower limb at about the knee level.  This was consistent with her being hit by a protruding part of a moving motor vehicle.  The impact caused the deceased to rotate towards the vehicle and her body fell onto its bonnet.  When the vehicle decelerated, the body was thrown forward onto the road in front of the vehicle and then run over by the vehicle.  The absence of damage to the rear part of the bonnet and the windscreen of the taxi indicated that it had decelerated after the initial impact.  The injuries to the head and the posture of the deceased indicated that some time after she was initially struck by a vehicle, she was run over by the vehicle.

Prosecution’s evidence

11.There is no direct evidence showing that the defendant was the driver of the vehicle which hit the deceased.  The prosecution relied on the following circumstantial and forensic evidence :

(1)    A New Territories taxi was the vehicle approaching the pedestrian crossing driving towards Yuen Long immediately before the collision.

(2)    The defendant was the driver of a New Territories taxi at the time of the collision.  When he handed over the taxi at 6:30 a.m. to the day shift driver, the number plate of the taxi which was not damaged the day before was found to have been damaged.

(3)    Two pieces of the fragments found by the Police at the scene fitted into the missing parts of the offside headlight of the taxi and also of its radiator grill.

(4)    A partial shoe print was found on the offside of the engine guard underneath the taxi, on the side facing the road surface.  The pattern on the sole of the deceased’s right shoe agreed with the pattern design of the shoe print.  The shoe was one of the two shoes found by the Police at the scene.

(5)   Stripe imprints were found on the surface of the engine guard, the near side front mudguard and on the tapings taken from various areas of the taxi.  Examination of the clothing worn by the deceased at the time of the accident revealed that the fabric pattern of her sweater, brassiere and girdle also consisted of fine stripes.

(6)    On 25 September 2006 when the defendant’s taxi was examined the bonnet was dented and also the offside front headlight was damaged.  The Police had checked the area where the defendant said a tree branch had fallen on the bonnet of his taxi.  The Police could not discover any recent signs of a branch that had fallen off from a tree.  The Police also had conducted tests of dropping a tree branch onto the bonnet of a taxi.  Two tests were carried out involving a 2-centimeter branch and a 7-centimeter branch.  In respect of the 2-centimeter branch no significant damage was caused to the bonnet of the taxi but in respect of the 7-centimeter branch not only were there dents observed but also significant scratches.  Scratch marks were not found on the defendant’s taxi.  The view of the Government Chemist was that the dent on the bonnet of the taxi in question was not caused by a fallen branch.

The appeal

12.The defendant set out his grounds of appeal against conviction in his perfected grounds of appeal dated 26 February 2010 and supplemented by a skeleton argument dated 7 August 2010.  He further made oral submissions at the appeal.

Tyre marks

13.The defendant claimed that the Judge had erred in holding that a dual wheel brake mark found at the scene of the accident was irrelevant.  The defendant contended that the examination and subsequent rejection of this brake mark was not scientifically carried out.  He submitted that the dual tyre brake mark may well be an indication that the collision was caused by a heavy motor vehicle with dual wheels. 

14.A dual wheel brake mark was indeed found by the Police at the scene.  However, the Police regarded that mark as an old mark and therefore did not consider the mark to be relevant.  We agree with the Judge that the presence of this tyre brake mark was irrelevant.  The Judge had accepted the evidence of PW1 that she heard the horn and bang sound after the passing of the New Territories taxi and she immediately made a U-turn to the place where the deceased was found lying.  There was no indication that a heavy motor vehicle had passed by her immediately before the collision nor was there any indication that the vehicles that were travelling towards the Yuen Long direction after the collision had run over the deceased’s body. 

15.The defendant also complained that the Judge had erred in ruling that a single wheel brake mark found at the scene was irrelevant.  The defendant’s point was that this mark may indicate that the collision was caused by a motorcycle or a private car.  Again the Police found that this single tyre brake mark near the pedestrian crossing had dust, stone and sand on top of it and was very light in colour and the Police concluded that the tyre brake mark had no relevance to the accident.  The only motorcycle that was present was PW1’s.  The Judge had clearly accepted PW1’s evidence and the possibility that the accident was caused by a motorcycle or some other vehicle can clearly be excluded.

Evidence of PW1

16.The defendant complained about the Judge’s acceptance of the evidence of PW1.  Her evidence was that she saw no one on the pedestrian crossing when she passed over it.  The defendant argued that being the case, it was very unlikely that the deceased could have been on the pedestrian crossing in the Yuen Long bound lane in time to be struck by the taxi.  Further it was unlikely for the deceased who was an old lady to have sprinted across the Sheung Shui bound lane on the crossing within seconds after PW1 had passed through it.

17.In our view the Judge was clearly aware of PW1’s evidence that she did not see any pedestrian at all at or in the immediate area around the pedestrian crossing when she passed over it, nor on the side of the road waiting to cross, nor at or around the bollards in the center of the road crossing or waiting to cross over the Yuen Long bound lane.  However, in our view, the Judge was entitled to find that it may be the deceased had been on the point of arriving at the side of Castle Peak Road, not yet plainly visible when PW1 passed by on her motorcycle and had been proceeded to cross the road immediately after PW1 had passed.  Bearing in mind that at the time of the accident the area was still quite dark, the Judge clearly was entitled to make such a finding.  It was a matter of evaluating the evidence by taking a commonsense approach.

Evidence in the defendant’s favour

18.The defendant complained that the Judge failed to pay any proper regard to the fact that the evidence pointed to his innocence and also the case against him was based on circumstantial and scientific evidence.  The defendant argued that he replaced the damaged number plate openly and he carried out the repair of the taxi openly and this was inconsistent with someone who had been involved with a fatal accident.  He further claimed that there was no blood stain or human DNA being found underneath his vehicle. 

19.The Judge was clearly aware that the case against the defendant was based entirely on circumstantial and scientific evidence.  He was aware that there was no contact evidence of the deceased’s body on the taxi.  However, he properly held that this aspect became less significant because the taxi was not located by the Police until four days after the accident.  Although the Judge had commented that the delay would have given the defendant the opportunity to remove any DNA and/or contact evidence, he also recognized Dr. Chim’s evidence was that there were no signs to suggest this has been done.  In our view, the Judge was clearly entitled to conclude that the defendant was the driver by relying on the other forensic evidence in this case together with the evidence of PW1 which he had accepted.

Forensic evidence

20.The defendant argued that the Judge had misunderstood the forensic evidence of Dr. Chim and Dr. Poon. 

21.In our view the Judge had properly assessed the evidence of these two experts.  The defendant at the end did not call any expert evidence himself to contradict the theory that the deceased was hit in the area below her knee, thrown onto the bonnet and as the car decelerated the body was thrown to the ground and rolled over by the car.  This theory was consistent with the injuries found on the deceased and the damages to the taxi.  While the Police did not adduce any evidence of a brake mark to show sudden braking of the vehicle which threw the deceased onto the ground, it does not mean that the theory was flawed.

22.The judge clearly recognized that according to Dr. Chim’s evidence it was not possible for her to tell whether the deceased was run over by the same vehicle which had immediately struck her or by a second vehicle.  Although there was no evidence to suggest that a second vehicle had been involved in this accident, Dr. Chim could not exclude the possibility that one could have been involved.  In our view in deciding a case the Judge is not bound to accept all the evidence from an expert, particularly when the expert did not positively say that the deceased was run over by another vehicle.  The expert merely said that she could not exclude such a possibility.  Having heard the evidence of PW1 the Judge was clearly entitled to reject that possibility and conclude that it was the taxi which had initially hit the deceased and run over her thereby killing her.

23.The defendant also complained about the unscientific way of carrying out the ‘branch drop’ test.  But he chose not to be present in those tests either by himself or by his lawyer despite being invited to attend by the Police.

24.The issue of the shoe patterns and fine stripe imprints had clearly been addressed by the experts without any contrary expert evidence being adduced by the defendant.  The Judge was clearly entitled to accept the finding of the government experts.

The Police’s evidence

25.The defendant complained of the competence of the Police in respect of the evidence gathering.  The defendant submitted that the Police had only seized two and not three fragments at the scene.  This was supported by the presence of only two exhibit packages and the computer records.  He claimed that the L-shape fragment which the Police claimed to have been found at the scene was in fact found in the taxi itself.

26.The handling of the exhibits by the Police formed a major issue at the trial.  The judge accepted the Police’s evidence that they had initially only labeled two exhibits and had not properly entered the three fragments seized into the computer system.  He further accepted that the Police had only photographed two of the fragments and not the L-shape one.  But at the end the Judge accepted the evidence of PW9 who seized the three fragments and PW16 who saw these exhibits when they were showed to him by PW9.  In our view, the Judge had the benefit of hearing and observing the evidence of the Police officers and the challenge that was made in their cross-examination.  At the end it was a matter of finding of fact by the Judge as to whether three fragments were found at the scene.  We do not see any ground to interfere with the Judge’s finding. 

27.The defendant did not seriously dispute that one of the fragments that fitted the damaged headlight was found at the scene but challenged that the L-shape fragment was in fact not found at the scene but remained inside the taxi.  The defendant further postulated that one of the fragments seized by the Police at the scene could have been left on the road some time ago due to other accidents prior to the day of the fatal accident.  Although the defendant was involved with three other accidents there was no indication they took place at the place of the collision.  Further the evidence accepted by the Judge was that there was no dust found on the exhibits that matched the missing parts and this supports the prosecution’s case that these fragments were broken off from the taxi not long before the accident or at the time of the accident.

28.The evidence also revealed that a fourth fragment was found lying on the ledge under the front offside headlight in the engine compartment when the taxi was examined outside the defendant’s house on 25 September 2006.  The Government Chemist was unable to match this fragment to anything in the taxi and it was not seized as an exhibit.  However no prejudice was suggested by the defendant concerning the absence of the fourth fragment. 

29.The defendant argued that his right under Article 39 and Article 11 of the Hong Kong Bill of Rights and under section 65DA of the Criminal Procedure Ordinance Cap. 221 which dealt with prior disclosure of expert evidence was prejudiced.  The defendant’s complaint is really on the Police’s handling of the exhibits.  This is not an issue of lack of prior disclosure but an issue concerning the veracity of the Police officers which the Judge had accepted.

30.The defendant stated that he had applied to stay the proceedings and he had asked for the evidence of the Police officers dealt with the exhibits to be excluded.  He had also applied to stay the proceedings in respect of certain non-disclosure relating to the instructions to Dr. Poon. 

31.We do not see how this could be a ground of appeal.  Certainly the refusal by the Judge to stay the proceedings has not been stated as a ground of appeal in this case.  We would not allow such a ground to be raised at this late stage, particularly when the appeal itself was originally scheduled to be heard in September 2009.  It was only adjourned at the request of the defendant on the ground that he wished to apply for the Bar Association Free Legal Advice Scheme. 

Others

32.The defendant had also made submissions on a wide range of matters in relation to evidence such as how he had fixed the broken plate with a cardboard paper; whether he was present when the Police ‘matched’ the fragments and the accuracy of the Police officers concerning the gathering of exhibits.  The defendant admitted that he had not dealt with any of such evidence at the trial.  In our view the Judge had properly evaluated the evidence that was before him. 

Overview

33.In our view there is strong circumstantial evidence which we have listed from which the Judge could infer that the defendant was indeed the driver of the taxi which struck the deceased and killed her.  The grounds of appeal do not raise any doubts at all on this evidence.  Accordingly we dismissed the defendant’s application for leave to appeal against conviction.

Sentence

34.The Judge gave an overall sentence of 2 years and 8 months’ imprisonment.  This is made up as follows :

(1)    First charge : starting point of two years reduced to one year and 8 months because of the defendant’s good character;

(2)    Second charge : one year’s imprisonment consecutive to the first sentence; and

(3)    Third and fourth charges : six months’ imprisonment each, concurrent with each other and with the first and second sentences.

Deterrence and Culpability

35.In Secretary for Justice v. Poon Wing Kay [2007] 1 HKLRD 660 this Court (Ma CJHC, Stuart-Moore VP and Stock JA) adopted the approach discussed in R v. Cooksley & others [2003] 3 All ER 40 in respect of the sentence for dangerous driving causing death.  The principle that emerged from Poon Wing Kay and the subsequent cases is that a deterrent sentence is called for because of the grave consequences flowing from this offence.  At the same time the Court recognizes that culpability of the defendant is the dominant factor in the sentencing exercise.

The assessment

36.The maximum sentence for the first charge that was applicable at the time of the offence was five years’ imprisonment which was only increased to ten years afterwards.

37.In assessing the degree of culpability there are two extreme situations.  The first is where the event occurred because of a momentary error of judgment.  The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness.  In between these two extremes, there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at paragraph 15.

Aggravating factors

38.It is worth repeating the aggravating factors which may be grouped under the following headings :

1)     Highly culpable standard of driving;

(1)    the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a “motorised pub crawl”;

(2)    greatly excessive speed; racing; competitive driving against another vehicle; “showing off”;

(3)    disregard of warnings from fellow passengers;

(4)    a prolonged, persistent and deliberate course of very bad driving;

(5)    aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);

(6)    driving while the driver’s attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held);

(7)    driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills;

(8)    driving when knowingly deprived of adequate sleep or rest;

(9)    driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns;

2)     Driving habitually below acceptable standard;

(10) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;

(11) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving;

3) Outcome of offence;

(l2)   more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);

(13)  serious injury to one or more victims, in addition to the death(s);

4)     Irresponsible behaviour at time of offence;

(14)  behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;

(15)  causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;

(16)  offence committed while the offender was on bail.

Mitigating factors

39.At the same time the Court must also take into account mitigating factors, such as,

(1)    a good driving record;

(2)    the absence of previous convictions;

(3)    a timely plea of guilty;

(4)    genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(5)    the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and

(6)    the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.

Crosscheck

40.It is of further assistance to crosscheck the intended sentence to the range of sentence considered by Cooksley in respect of the four categories of culpability based on the then applicable maximum sentence of 10 years’ imprisonment which had since been increased to 14 years in England.  It should be emphasised that the Cooksley range of sentence has not been adopted by Poon Wing Kay as the tariff in Hong Kong :

1)	No aggravating circumstances	12–18 months
2)	Intermediate culpability : momentary dangerous error of judgment or a short period of bad driving aggravated by a habitually unacceptable standard of driving, by the death of more than one victim or serious injury to other victims or by the offender’s irresponsible behaviour at the time of the offence	2–3 years
3)	Higher culpability where the standard of the offender’s driving is more highly dangerous, e.g. the presence of one or more of factors of (1) to (9)	4–5 years
4)	Most serious culpability	6 years onwards

41.Where, as in this case, the applicable maximum sentence is five and not 10 years, the range must be adjusted downwards but not necessarily by way of a proportional reduction.

The prosecution’s position

42.Mr. David Leung, Senior Assistant Director of Public Prosecutions, argued that this case came within the top end of the higher culpability category.  He argued that the defendant was reckless in his driving.  He referred to the second case (CAAR 4/2009) in Secretary for Justice v. Lam Siu Tong and Wong Ton Fan [2009] 5 HKLRD 601 (Ma CJHC, Hartmann JA and Saw J) where a driver drove through a red light in a pedestrian crossing when the vehicles on two other lanes had already stopped.  This Court held that the driving was reckless and imposed a sentence of three years’ imprisonment.

Our View

43.We accept that this case has the following aggravating factors :

1) Driving at an excessive speed.     The defendant was driving at a speed in excess of the permitted speed of 50 kilometers per hour.  The forensic evidence showed that of the three possible sets of speeds depending on where the impact occurred, the one that is most favourable to the defendant entails a maximum speed of 73 kmph and a minimum speed of 62 kmph.

2) The collision took place at a pedestrian zebra crossing marked by a yellow beacon.  This Court held in Lam Siu Tong that :

‘ 19. At the outset of this judgment, we highlighted one feature common to both reviews, namely, that the accidents took place at pedestrian crossings.  It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: it is highly likely that peoplewill be crossing the road there, whatever the time of day or night.  Accordingly, if motorists approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur.  And where a collision takes place, fatalities are common as we have seen in the reviews before us.

20. Thus, we are of the view that where the offence of dangerous driving causing death is established and this involves the running over of persons at pedestrian crossings, then, for the purposes of sentencing, it would be a serious aggravating feature that the accident has occurred in such a location.  The degree of seriousness will of course depend on the precise circumstances.  For example, a conscious disregard for traffic lights will likely put the case into the most serious category.’

3) The defendant did not stop after the accident.  We consider this to be an extremely callous act on the part of the defendant.  To leave the deceased lying on the road, not caring if she was still alive, with the distinct possibility that she might be further injured by oncoming vehicles clearly aggravates the culpability of the defendant.  However, this was covered by the second charge of which the Judge gave the maximum sentence of one year’s imprisonment.

4) Tampering with the damaged vehicle.  This is covered by the fourth charge. 

44.Looking solely at the defendant’s manner of driving at the point of collision, we do not agree that it had reached the level of recklessness as suggested by Mr. Leung.  Since the forensic evidence only provides a range of the possible speed of the defendant, we will give him the benefit by adopting the lower level of 62 kmph, which was 12 km over the 50 km limit.  

45.We are of the view that the case is the high end of intermediate culpability.  Having regard to the manner of driving and subsequent conduct of the defendant the sentence imposed by the Judge was manifestly inadequate and the overall sentence in this case should be 3 years and 3 months’ imprisonment.  The difference of seven months in the sentences must be considered in the context of the sentence in the present case. 

46.As to apportionment, we agree with the starting point of two years adopted by the Judge for the first charge.  However, as the defendant showed no remorse at all and did not plead guilty, it was wrong in principle for him to be given a further deduction of four months due to the absence of criminal record.  We also agree with the sentence of one year’s imprisonment for the second charge which is to be consecutive.  As to the third and fourth charges we agree with the Judge’s sentences of six months’ imprisonment for each of the two charges.  However, as a reflection on the further culpability of the defendant in tempering with the taxi after the accident, we are of the view that three months should be served consecutively to the first and second charges. 

Disqualification

47.The Judge disqualified the defendant from driving for a period of two years.  In Secretary of Justice v. Hung Ling Kwok CAAR 7/2009 this Court (Cheung, Yeung JJA and Tong J) approved the approach in Cooksley that the purpose of disqualification is forward-looking and preventive rather than backward-looking and punitive.  At the same time, to ensure other road users are protected the order of the Court must be effective in order to achieve its purpose.  We will adopt the same approach in the present case.  The defendant had previously been disqualified for 12 months for driving a vehicle without insurance.  We are of the view that the proper period of disqualification in the present case should be four years. 

Conclusion

48.Accordingly the review for sentence and disqualification was allowed.

Representation in CAAR 3/2009

Mr. David Leung, Senior Assistant Director of Public Prosecutions of Department of Justice, for the Applicant

Respondent, in person, present

Representation in CACC 34/2009

Mr. David Leung, Senior Assistant Director of Public Prosecutions of Department of Justice, for the Respondent

Applicant, in person, present