|
CACC 272/2017
[2019] HKCA 937
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 272 OF 2017
(ON APPEAL FROM DCCC 326 OF 2017)
------------------------
| BETWEEN |
|
|
| |
HKSAR |
Respondent |
| and |
| |
MUHAMMAD WAQAS (華加士) |
Appellant |
------------------------
Before: Hon Macrae VP and McWalters JA in Court
Date of Hearing: 15 May 2019
Date of Judgment: 22 August 2019
_______________
J U D G M E N T
_______________
Hon McWalters JA (giving the Judgment of the court):
1. On 4 August 2017, following his plea of guilty, the appellant was convicted by Deputy District Judge M Chow (“the judge”) of ten charges. They were:
(i) Theft, contrary to section 9 of the Theft Ordinance, Cap 210.
(ii) Using markings on a vehicle with intent to deceive, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374 (“the RTO”).
(iii) Careless driving, contrary to section 38(1) of the RTO.
(vi) Driving without a valid driving licence, contrary to section 42(1) and (4) of the RTO.
(v) Using a motor vehicle without third party insurance, contrary to sections 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.
(vi) Failing to stop after an accident whereby damage was caused to another vehicle, contrary to section 56(1)(b) and (5) of the RTO.
(vii) Failing to report an accident involving damage, contrary to section 56(2A) and (6) of the RTO.
(viii) Making a false report of the commission of an offence, contrary to section 64(a) of the Police Force Ordinance, Cap 232.
(ix) Escaping from lawful custody, contrary to common law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.
(x) Possession of a dangerous drug, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.
2. He was sentenced on 11 August 2017 to a total term of 2 years and 9 months’ imprisonment and disqualified from driving for 2 years.
3. On 31 August 2017, the appellant filed a notice of application for leave to appeal (Form XI) against his sentence. On 26 April 2016 leave was granted to the appellant to appeal against his sentence and an appeal aid certificate was also granted to the appellant pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D[1].
The Amended Summary of Facts
4. The Amended Summary of Facts that was admitted by the appellant and used for the purpose of his sentencing revealed that at around 11 am on 19 December 2016, the owner of a Mazda RX7 motor vehicle, valued at HK$80,000, left it outside Kwong Kin Trade Centre, Kin Fat Street, Tuen Mun opposite to the garage where he worked. He left the car’s key in its ignition. At 4:30 pm the same day the owner found his vehicle was missing (Charge 1). In order to conceal that the vehicle was stolen, a set of false licence plates were affixed to it (Charge 2).[2]
5. On 20 December 2016 at about 6:10 pm, while driving the stolen vehicle, the appellant was involved in an accident with two other vehicles (V2 and V3) which were stopped at a set of red traffic lights on Kowloon-bound Hoi Hing Road which consisted of two lanes. The two vehicles, V2 and V3, were travelling in the left lane whilst the appellant’s vehicle (V1) was travelling in the right lane, ahead of V2. V3 was in front of V2. Suddenly, the appellant steered left and cut into the left lane. In so doing the left front part of his vehicle collided with the right rear part of V3 and the left rear part of his vehicle hit the right front bumper of V2 (Charge 3). The cost of repairs to V2 was HK$4,000 and to V3 was HK$13,800.
6. After the accident, the appellant fled the scene (Charge 6) and did not make a report to the police (Charge 7). How his flight from the scene came about was described in the Amended Summary of Facts as follows:
“6. PW2 and PW3 then got off V2 to confront the driver of V1 (later confirmed to be the Defendant). PW3 tried to open the door of the driver’s seat of V1 but it was locked so PW3 broke the window of the driver’s seat of V1 with his elbow and he also tried to pull the Defendant out of V1. The Defendant then kicked the driver’s seat door open and PW2 – 3 tried to grab hold of him. However, the Defendant struggled and managed to make good his escape.…”[3]
7. We should mention that PW2 was the driver of V2 and PW3 was a friend of PW2 and was a passenger in his vehicle. Coincidentally, PW2 had recognised V1 from a Facebook post and believed it to be the stolen vehicle referred to in that post. One of the reasons for believing it was the stolen vehicle was that the false number plate had not been properly affixed over the genuine number plate at the back of the vehicle and two of the characters of the genuine number plate remained visible. This prompted PW2 to follow the appellant’s vehicle. However, the Amended Summary of Facts did not make clear whether the appellant knew he was being followed or whether he was aware that PW2 believed he was driving a stolen vehicle.
8. At the time when the appellant was driving the stolen vehicle, he did not possess a valid driving licence (Charge 4) and because the vehicle was driven without the permission of the owner, the vehicle was not covered by third party insurance (Charge 5).
9. When the appellant fled the scene, he left behind in the stolen vehicle items which could identify him, such as his Hong Kong Identity Cardand other documents containing his personal information, and his mobile phone. In order to explain their presence in the stolen vehicle he falsely reported to the police that he had been robbed of these items (Charge 8).
10. The appellant’s story was, ultimately, not believed and he was arrested for misleading a police officer. He was released on bail on 22 December 2016. As part of the investigation of the theft of the motor vehicle and the accident involving V2 and V3 the police arranged an identification parade to take place at Tuen Mun Police Station on 4 January 2017. The appellant attended the police station and participated in the identification parade. At this identification parade the appellant was positively identified by PW3. He was thereupon remanded in temporary cell No 2 at Tuen Mun Police Station. At around 6:49 pm the appellant asked to be allowed to make a phone call and so he was taken from his cell to enable this to take place. Whilst outside of his cell he managed to escape (Charge 9). The appellant was at large for some 11 minutes, before being recaptured at 7 pm. He was then returned to temporary cell No 2. At 8:35 pm a police officer transferred him to cell No 1.
11. At 10:08 pm the same police officer conducted a thorough body search of the appellant at which time he found that the appellant had lowered his underpants to below his knees and a transparent resealable plastic bag containing suspected dangerous drugs was found concealed in it (Charge 10).
12. Charge 10 did not specify the narcotic content of the powder possessed by the appellant but simply referred to it as “0.89 gramme of a powder containing cocaine”. In support of this charge the Amended Summary of Facts only stated:
“21. PW10 then arrested the Defendant for ‘Possession of a Dangerous Drug’. Under caution, he admitted that he had picked it up at an adjacent cell.
22. The Government Chemist subsequently confirmed that the resealable plastic bag contained 0.89g of a powder containing traces of cocaine.”[4](Emphasis added)
13. Thus, nothing was contained in the Amended Summary of Facts in respect of the actual narcotic content of the powder and no explanation was advanced by either party as to what was meant by “traces of cocaine”.
The mitigation
14. The appellant was 23 years old at the time of his sentence. He is a Pakistan national who came to Hong Kong in 1993. His legal representative, Mr Chow, informed the court that the appellant had worked as a delivery man, earning about HK$13,000 monthly. He has a wife who is living in Pakistan and at the material time, he was living with his parents and two younger brothers in Hong Kong. Mr Chow told the court that the appellant was willing to compensate the victims for the cost of repairs to their motor vehicles which amounted in total to HK$25,800 as the damage to V1, the stolen vehicle, was assessed as costing HK$8,000 to repair. However, the appellant was only able to offer HK$3,000 to $4,000.
15. In respect of the individual charges, Mr Chow explained to the judge that when the appellant took the stolen vehicle, he did so out of “greed and then want to have fun with a car”[5] and said that his client would never touch any vehicle in the future. He said the appellant had found the vehicle on the roadside of a street in the village of Ip Yuen, which is located outside of Tuen Mun.
16. The accident involving the other vehicles occurred, Mr Chow said, because the appellant was nervous when he drove the stolen vehicle. The appellant ran away from the scene because he was scared and confused.
17. In regard to the false report to the police, Mr Chow claimed that the appellant foolishly followed some bad advice provided by his friends. As to why the appellant escaped from lawful custody Mr Chow submitted that this was due to the appellant’s nervousness, youth and his confused state of mind.
18. In respect of the drug possession charge it was asserted that the appellant had no drug addiction history and that the circumstances of how hecame to possess the drugs were as he told the police. His explanation to the police was referred to in the Amended Summary of Facts. Paragraph 26 of that document refers to a video record of interview on 5 January 2017 during which the appellant stated that:
“… He picked up the bag of dangerous drugs from the temporary cell...
| 
