HKSAR v Chan Chi Man (No 2)

Court of Appeal
Criminal Appeal No 262 of 2018
McWalters JA and Maggie Poon J
28 March, 2 April 2019

Criminal sentencing — road traffic offences — dangerous driving — driving whilst disqualified — using motor vehicle without third party insurance — driving worst of its kind — blatant disregard for law and other road users — sentence not manifestly excessive or wrong in principle

D pleaded guilty to dangerous driving (“Charge 2”), driving whilst disqualified (“Charge 3”), and using a motor vehicle without third party insurance (“Charge 4”). D, a taxi driver who was disqualified from driving under the Road Traffic (Driving-offence Points) Ordinance (Cap. 375), drove with a passenger at exceedingly high speed on a motorway weaving in and out of traffic to evade a police motorcyclist pursuing him for speeding. At a set of traffic lights, D could not stop in time and drove between stationary vehicles waiting for the lights to change and damaged eight vehicles. Some of the occupants and his own passenger were injured. The Judge considered D’s driving “reckless in the extreme” and, on Charges 2, 3 and 4, adopted starting points of 30 months, three months and six months respectively and reduced each for plea to 20 months, two months and four months’ imprisonment; and also imposed disqualification orders of four years and 18 months on Charges 2 and 4 respectively and ordered him to take a driving improvement course, with the terms of imprisonment and disqualification orders to run concurrently. D sought leave to appeal seven weeks out of time against sentence, which was refused by a single judge of the Court of Appeal. D now renewed his application, stating that he initially accepted the sentence imposed, but changed his mind after discussion with other inmates.

Held, dismissing the application, that:

1) D’s explanation for filing his application late did not constitute substantial grounds for the delay (HKSAR v Wilson Alberto Corredor Medina (CACC 296/2007, [2012] HKEC 124) applied). (See paras. 10–11.)

2) The starting point of 30 months was not manifestly excessive or wrong in principle. D’s road traffic record indicated a blatant disregard for the law. This case was the worst of its kind. D’s driving was with selfish disregard for the safety of others with a degree of recklessness which were aggravating factors. He drove whilst disqualified, without third party insurance and at high speed in a wanton and erratic manner in an attempt to escape and caused damage and injuries (Secretary for Justice v Poon Wing Kay[2007] 1 HKLRD 660 applied; HKSAR v Pang Ho Yin Patrick (CACC 283/2013, [2014] HKEC 646) considered). (See paras. 12–16, 18.)

3) Similarly, the period of disqualification ordered was not excessive. If the disqualification period were too short so that it was subsumed under his prison terms, it would serve no real purpose. D was a menace to other road users and he was best kept off the road and from driving public transport vehicles (Secretary for Justice v Hung Ling Kwok[2010] 4 HKLRD 365 applied). (See para. 20.)

4) While no factual basis of bad faith was suggested, the decade since FY had assumed her role and duties as the administratrix in 2004 called for explanation. FY pointed to nothing in principle that would prevent an order for administration of X’s estate. However, as the Lots were reported to be the only assets of the estate, an order for the settlement of all of the liabilities of the estate would not be made at this stage. (See paras. 69–70.)

4) A loss of time order of eight weeks was appropriate. The lack of merit in the appeal had been explained to D and he was warned by the single Judge of the power to make an order for loss of time should he renew his application and fail in his appeal. (See paras. 22–24.)

Application for leave to appeal against sentence

This was a renewed application for leave to appeal out of time against sentence for dangerous driving, driving whilst disqualified and using a motor vehicle without third-party insurance imposed by Judge Casewell in the District Court on 11 June 2018 (see [2018] HKEC 1830), after Zervos JA dismissed the defendant’s application for leave on 4 January 2019 (see [2019] 1 HKLRD 750). The facts are set out in the judgment.


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