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CAAR 12/2001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
APPLICATION FOR REVIEW NO. 12 OF 2001
(ON APPEAL FROM DCCC 537 of 2001)
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| BETWEEN |
| THE SECRETARY FOR JUSTICE |
Applicant |
| AND |
| KO WAI KIT, PAUL |
Respondent |
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Coram: Hon Stuart-Moore Ag. CJHC, Stock JA and Lugar-Mawson J in Court
Date of Hearing: 8 November 2001
Date of Judgment: 8 November 2001
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J U D G M E N T
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Hon Stock JA (giving the judgment of the Court):
1. This is an application by the Secretary for Justice for a review of sentence pursuant to the provisions of section 81A of the Criminal Procedure Ordinance, Cap. 221, leave having been granted by the Chief Judge on 15 August this year.
The charges
2. On 30 July 2001, the respondent, aged 22 years, pleaded guilty in the District Court to one charge of dangerous driving, contrary to s. 37 of the Road Traffic Ordinance, Cap. 374, and to one charge of resisting police officers in the due execution of their duties, contrary to s. 36(b) of the Offences against the Person Ordinance, Cap. 212.
The sentence
3. HH Judge Yung sentenced the respondent to 12 months' imprisonment in respect of Charge 1, the dangerous driving charge, and to one week's imprisonment in respect of Charge 2, that is, resisting the officers, this sentence to run consecutively, making a total of 12 months and one week's imprisonment. The respondent was also disqualified from holding or obtaining a driving licence for all classes of vehicles for two years.
The facts
4. The facts of the case, as agreed by the respondent, disclose a shocking case of dangerous driving, a case that quite clearly falls within that band that can be called the worst of its type.
5. At about 5:30 p.m. on 6 April 2001, a patrolling motorcycle police officer, saw the respondent driving a van in Kowloon and doing so erratically. The respondent's van suddenly made an unlawful 'U-turn', crossing double solid white lines in Jordan Valley Road, Ngau Tau Kok, Kowloon. When the officer attempted to intercept the van, the respondent disobeyed the command to stop, and drove off. In the course of a crazed journey from Jordan Valley Road to Prince Edward Road East, Prince Edward Road West, Waterloo Road, Chatham Road, Austin Road and Canton Road, he committed one traffic offence after another, jumped red lights, collided with motor vehicles, and with motorcycles, injuring a police officer and two civilians, failed to obey police commands to stop, and when ultimately he was stopped, violently resisted arrest, injuring a number of police officers. That is the picture in its very broadest summary.
6. A closer account reveals that after the respondent drove off from Jordan Valley Road, he steered his van the wrong way against traffic on a one way road, and failed then to stop at red traffic signals. He was pursued. At the junction of On Wah Street and Chun Wah Road, the van struck a petrol tanker. But the respondent drove on. He struck two more private cars on Princess Edward Road East while passing through a gap between them. Not surprisingly, both vehicles were damaged.
7. A Police Emergency Unit vehicle, car no. 52, tried to block the traffic on Price Edward Road East, but it, too, was hit by the van, and was as a result rammed into the concrete barrier of a flyover. The driver of car no. 52, a police officer, was injured and the vehicle damaged. Alerted to the fact that the respondent's van was approaching Prince Edward Road West, another police officer stopped the traffic near the junction of Prince Edward Road West and La Salle Road. The respondent managed to evade the block by driving through a gap but not before causing the officer to fear that he was to be run down by the respondent, so much so that he drew his revolver and fired at the van.
8. On the respondent went, driving as dangerously as before. The van turned left from Prince Edward Road to Waterloo Road, heading towards Princess Margaret Road. When it reached Chatham Road near Austin Road, he drove the van across the hard shoulder to the opposite lane and then travelled against the flow of oncoming traffic. He then turned right into Austin Road, heading towards Canton Road. When the van reached Kimberley Road in Tsimshatsui, it collided with a taxi and three private vehicles, causing injuries to one driver and to a passenger. The van then reversed and damaged a lorry and three police motorcycles. The journey was finally at its end.
9. Nine police officers went forward to arrest the respondent but he resisted them violently and, in doing so, five of them were injured in the ensuing struggle. The injuries were abrasions and tenderness to parts of their bodies and, in one instance, a cut.
10. On the same day, the respondent was sent to Queen Elizabeth Hospital, and there a urine test disclosed the presence of methamphetamine and amphetamine, and he was found to have amphetamine drug overdose.
11. On 10 April, in a video-recorded interview he admitted the offences and said that he had been under the influence of 'ice'.
12. When this respondent appeared before the District Court judge he was a person without previous convictions, although we shall later mention an offence which he committed of the same kind in March 2001 for which however he was not sentenced until 16 August 2001, and which does not affect our approach to this review.
The mitigation advanced
13. Returning to the present case, the mitigation suggested on the respondent's behalf before the District Court judge concentrated on the fact that the respondent was the worse for drugs when he committed these offences. We do not propose to repeat the details of the extraordinary material advanced as mitigation. In its essence, however, the respondent asserted that he was suffering from some illusion or delusion that he was on an important mission to deliver a message and that the message had to be delivered, come what may; that he knew that he was disobeying police instructions, but he had this mission to accomplish for the common good. We do not doubt that certain drugs may cause hallucinations. Whether this was so in the present case, we cannot say, but it matters not a jot for the purpose of sentence in this case.
14. The judge was told in mitigation that the respondent had a clear record, 'not even a traffic conviction'. That was at that date true, although other proceedings were pending. In that regard we note in passing that there had been an attempt by the prosecution to have both cases heard together, but this was successfully resisted before another judge at a stage when the March events were the subject of review by lawyers in the Department of Justice, and at a stage when the respondent intended, apparently, to plead not guilty to the charges in respect of the April offences. By 30 July, however, the respondent had not only been charged with the March offence in the magistracy but had in fact pleaded not guilty and his trial was due to be heard on 16 August. Had the judge been told this fact he might have decided to adjourn sentence in this case to await the outcome of the magistracy proceedings. This procedural discordance is unfortunate, but we do not visit it in any way...
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