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HCMA 618/2013

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO 618 OF 2013
(ON APPEAL FROM ESCC 656 OF 2013)
_________________

BETWEEN

HKSAR Respondent

and

WONG WILLIAM YEE LAI Appellant

___________________


Before: Hon Anthea Pang J in Court
Date of Hearing: 5 August 2014
Date of J udgment: 5 August 2014
_____________________________________
J U D G M E N T
_____________________________________
BACKGROUND
1. On 12 August 2013, the Appellant pleaded guilty before the
magistrate to one charge of driving whilst disqualified and another
charge of using a vehicle without third-party insurance. The
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magistrate then adjourned sentence pending a background report and a
suitability report for community service order. Eventually, on
26 August 2013, despite the recommendation of the probation officer that
a community service order be imposed, the magistrate sentenced the
Appellant to 2 months imprisonment for each charge, both sentences to
run concurrently.
2. The Appellant now appeals against the sentence.
THE SUMMARY OF FACTS
3. The facts admitted by the Appellant disclosed that in the
small hours of 12 J anuary 2013, the Appellant was stopped by the police
officers at a road block while driving his private car. Upon enquiry, the
Appellant produced his driving licence to the police officer. It was then
revealed that the Appellant was disqualified from driving all classes of
vehicle for nine months from 16 J uly 2012 to 15 April 2013. The
Appellant was therefore arrested. Under caution, the Appellant claimed
he did not know that his driving licence was suspended as he had not
attended the previous court proceedings in which he was represented by
his lawyer.
THE MITIGATION ADVANCED BEFORE THE MAGISTRATE
4. The Appellant was represented by Mr Michael Blanchflower,
SC, on 12 August 2013 when he pleaded guilty before the magistrate.
At the hearing on 26 August 2013 when the reports were available, the
Appellant was represented by Mr J oseph Tse, SC. Both leading counsel
had mitigated on behalf of the Appellant on those two occasions.
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5. In gist, it was said that the Appellant's life was in turmoil in
around 2012 because his mother was diagnosed with cancer and he
himself was going through a marriage separation. On 11 J anuary 2013,
the Appellant's mother returned to Hong Kong from the States because
she was terminally ill. As there was not enough space for the medical
equipment, the staff and family members, the Appellant drove to the
airport to provide an extra car to pick up his mother. After sending his
mother to the hospital, the Appellant was stopped by the police on his
way back to the car park. The Appellants mother unfortunately passed
away on 18 August 2013.
6. In mitigation, it was said that the Appellant was a very
successful businessman, a devoted family man and a workaholic.
Leading counsel also laid emphasis on the fact that, other than some
traffic records, the Appellant did not have any criminal conviction.
GROUNDS OF APPEAL
7. Mr Gary Plowman, SC, appearing with Mr Derek Chan,
relies on the following grounds of appeal:
(1) The magistrate erred in relying on the Appellants statement
to the probation officer that he was unaware of the previous
disqualification order as the sole indicator of the Appellant's
lack of genuine remorse, thereby refusing to impose a
community service order despite the recommendation of the
probation officer;
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(2) The magistrate erred in finding that the Appellant flagrantly
and/or deliberately contravened the previous disqualification
order; and
(3) The magistrate erred in failing to impose a community
service order in circumstances where a legitimate
expectation had been created in the Appellant's mind that
such a sentencing option would be followed if the reports
were favourable.
A CONSIDERATION OF THE SUBMISSIONS
(A) The Usual Sentence
8. Before I deal with the grounds of appeal, I should state at the
outset that Mr Edmond Lee, SADPP, for the Respondent, is entirely
correct in pointing out that although there is no tariff for the offences in
question, the norm is immediate imprisonment unless there are some
exceptional circumstances or unless the case does not involve any
flagrant breach of the disqualification order. Mr Lee has studiously
provided a long list of authorities
1
to the court to illustrate this point and
to illustrate that 2 months imprisonment upon a guilty plea could not be

1
(1) R v Chan Hon Piu [1986] HKC 422
(2) R v Lui Wing Han HCMA 502/1997, 12 June 1997 (unreported)
(3) HKSAR v Liu Yim Hung HCMA 267/1998, 13 October 1998 (unreported)
(4) HKSAR v Cheung Chi Wah [2002] 1 HKC 168
(5) HKSAR v Ng Suen Wai [2003] 3 HKLRD 663
(6) HKSAR v Chan Wai Bun HCMA 1174/2004, 9 December 2004 (unreported)
(7) HKSAR v Kwan Chung Wa HCMA 471/2005, 29 June 2005 (unreported)
(8) HKSAR v Chan Chuk Hon HCMA 623/2005, 25 August 2005 (unreported)
(9) HKSAR v Cheung Chung HCMA 1070/2006, 26 January 2007 (unreported)
(10) HKSAR v Eme Philippe Jean HCMA 141/2008, 10 November 2008 (unreported)
(11) HKSAR v Siu Yat Ping HCMA 448/2011, 9 January 2012 (unreported)
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said to be inappropriate. There is, however, no need for me to go
through the authorities here for Mr Plowman does not seek to argue
otherwise.
9. In fact, the magistrate stated in the Reasons for Sentence
that,
Although a CSO is not an appropriate sentence for driving
while disqualified, given the reasons that the Defendant came
from a good background with a clear record, pleaded guilty,
and did not cause any accident in the case, etc, I, at first, had
intended to offer the Defendant a chance to reform, so I called
for a CSO Report for my perusal and consideration.
2

10. Two things are clear from the above. Firstly, when calling
for the CSO report, the magistrate was well aware that an immediate
custodial term is the norm. If not, he would not have made the above
comment. Secondly, the magistrate must have taken the view that this
case, on its own factual matrix, was an exceptional one and the
consideration of CSO was not inappropriate. If not, the magistrate
would not have called for such a report.
(B) The Alleged Lack of Knowledge
11. At this hearing, Mr Plowman stresses that the magistrate
should have warned the defence if he did not accept that the Appellant
had no knowledge of the disqualification order or if he did not accept that
the Appellant was genuinely remorseful. Mr Plowman further submits
that the two leading counsel appearing before the magistrate on behalf of
the Appellant indeed mitigated on the basis of a lack of knowledge.

2
Appeal Bundle page 17.4.
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12. Mr Lee, on the other hand, emphasizes that the Appellants
leading counsel had never put forth the alleged lack of knowledge as a
mitigating factor, and if they were to argue before the magistrate that the
Appellant had no knowledge of the disqualification order, the prosecution
would have easily rebutted such an assertion by way of a Newton Hearing.
Secondly, Mr Lee submits that the magistrate was entitled to take the
view that there was a lack of genuine remorse on the part of the Appellant
after reading the reports.
13. Thus, there are two matters in dispute. The first one is
whether or not the mitigation was advanced on the basis of knowing
defiance. The second matter is whether the probation officers reference
in the report to the Appellant shared that he was unaware of his
disqualification for driving
3
amounted to a lack of genuine remorse,
resulting in the Appellant not being suitable for CSO.
14. The first matter could be dealt with quickly. It is not
disputed that at the time of mitigation, both leading counsel had not put in
clear and unequivocal terms that the Appellant was unaware of the
disqualification order when he drove on the material day. Similarly,
leading counsel had not made any specific reference to the lack of
knowledge as a mitigating factor.
4

15. In fact, what was said during mitigation was this :
Same as his usual practice, he would not drive while
disqualified. Right, why would he have to drive a car this

3
Appeal Bundle page 19, para 6.
4
There was no application to adduce evidence on the point at this appeal hearing.
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time, , It was unfortunate for the Defendant that out of
his love for his mother, and out of his filial piety, knowing that
two cars would not be enough, he drove his own car to the
airport, It was under these circumstances that he had
committed this offence. he is not using this as an excuse; he
knows that he has done wrong, so he pleaded guilty, and the
Defendant committed the offence on this occasion purely out of
his filial piety. This was an exceptional circumstance.
Under normal circumstances, he would not drive while
disqualified and he would have no need to do so.
5

16. Reading these statements in context, I cannot see how the
lack of knowledge argument is tenable and it can be safely assumed that
the magistrate must have taken it as a fact that the Appellant was aware of
the disqualification order when he drove. In the Reasons for Sentence,
the magistrate actually stated that the Defendant took the risk to drive.
6

It was on this factual basis that the magistrate decided to call for the
CSO report. In other words, the magistrate did not consider the fact of
knowing defiance of the disqualification order a matter which, in this case,
would make the calling of the CSO report inappropriate.
17. Viewed in this light, the present case is not one in which the
magistrate misunderstood it as a less serious case when calling for the
CSO report but he later found out that the case was actually more serious,
thereby rendering the CSO option no longer appropriate. Instead, the
magistrate, from the very beginning, took it as a fact that there was
knowing defiance but he, nevertheless, still considered that the CSO was
a viable option.

5
Appeal Bundle page 44 page 46.
6
Appeal Bundle page 17.3.
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18. Pausing here, I should state that if the magistrate had come
to the conclusion that the Appellant should be sent to prison, it was a
view which was open to the magistrate and, as pointed out by Mr Lee,
immediate imprisonment is the norm for this type of offence. However,
in this case, the clear intention of the magistrate was to consider CSO.
Such was a view which the magistrate was entitled to take on the facts of
the present case given the special circumstances surrounding the
commission of the offence by the Appellant. Therefore, I do not
propose to revisit this issue concerning the correctness of the CSO option.
(C) The Lack of Remorse
19. As a result, what remains for me to examine is whether the
magistrate was correct in regarding the utterance reported to have been
made to the probation officer by the Appellant as indicating a lack of
remorse which renders the Appellant not suitable for CSO. As accepted
by Mr Lee, this is the central issue in this appeal.
20. Now, the probation officers observations were these,
Regarding to the present offence, Defendant expressed his
deep remorse and admitted his fault. He was aware that it was
wrong to drive while disqualified. Defendant shared that he
was unaware of his disqualification for driving. He revealed
that on the material day his terminally ill mother came back to
Hong Kong from USA by air Out of filial piety, Defendant
went to the airport to drive his beloved mother home. He
admitted that he should take the initiative to clarify the court
disposal of his previous traffic offence. Defendant admitted
his guilt and had learnt a grave lesson from the present legal
proceedings and pledged never to infringe law again. In
sum, Defendant appeared to have gained in-depth insight from
the present legal proceedings during the social enquiry.
Taking into account of his remorseful attitude, regulated living
pattern and positive family support, it is worth to give a chance
for Defendant to reform in the open. Hence, Community
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Service Order which is both punitive and rehabilitative is
recommended.
7

21. In the Reasons for Sentence, the magistrate stated that,
However, in the report, the Defendant once again argued
dubiously that had he clarified earlier the previous court ruling
on speeding, he would not have been led into committing the
driving while disqualified offence. In fact, after the Defendant
had pleaded guilty in this case, he repeatedly blamed the lawyer
who was representing in his speeding case for failing to inform
him of the result of the trial, and used this as an excuse for
shunning his culpability in this case. This reflects his lack of
genuine remorse. As the essential requirement of CSO is that
it can only be applied to an offender who has gained insight
into his wrongdoing, I therefore regrettably ruled out CSO as a
basis for punishment.
8

22. First of all, both parties accept that there is nothing in the
transcript or in the case papers which shows or records that the Appellant
shifted the blame to his lawyer. Mr Lee suggests that if one were to take
into account the Appellants response made under caution and the
Appellants utterances made to the probation officer, such was a view
which the magistrate was entitled to take. I do not agree. There was
not any occasion on which the Appellant could be said to have put the
blame on his lawyer. Likewise, there was never any reference made by
the Appellant to the effect that he had been misled by his lawyer.
23. Under caution, the Appellant only said that he did not attend
the previous court proceedings as he was represented by his lawyer.
That was, in any event, a fact not in dispute. During his interview with
the probation officer, all that the Appellant said was he himself should

7
Appeal Bundle page 19-page 20, paras 6 & 7.
8
Appeal Bundle page 17.4.
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take the initiative to clarify the court disposal of his previous traffic
offence. Again, there was no shifting of blame to his lawyer.
24. In the circumstances and given the material available, I agree
with Mr Plowman that there was no basis for the magistrate to find that
the Appellant blamed his lawyer for his own wrongdoing, not to mention
repeatedly blamed the lawyer. The magistrate therefore erred in
making such a finding.
25. As a result, the magistrate was again in error when he relied
on this erroneous finding to conclude that the Appellant was shunning
his culpability in this case and there was a lack of genuine remorse. In
the end, the magistrate incorrectly concluded that he had to rule out CSO
as a basis for punishment.
26. I have already set out rather extensively the probation
officers comments and observations. Clearly, when the Appellants
utterance of being unaware of the disqualification order was examined in
context and when the probation officers report was considered as a
whole, one would not get the impression that the Appellant was not
remorseful.
27. In the circumstances and in order to give effect to the
magistrates original intention of imposing CSO, I would replace the term
of 2 months imprisonment with a community service order of 240 hours
for each of the offences.
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(D) Legitimate Expectation
28. Given the conclusion that I have reached, there is no need
for me to deal with the ground concerning legitimate expectation
9
in
detail and I would only say this. In the present case, since the
sentencing norm is an immediate custodial sentence and since the
magistrate had told the Appellant that he would call for a CSO report as
a sentencing option consideration without reminding the Appellant that
all sentencing options were open, it could be that the Appellant might
have, at that time, been misled into believing that he would receive a
non-custodial sentence.
10

29. However, as correctly pointed out by Mr Lee, this belief, if it
ever existed, of being ordered to perform CSO and not to be sent to
prison must have been shattered shortly afterwards for the magistrate had
ordered the Appellant to be remanded in custody pending the preparation
of the background report and the CSO report. Therefore, whether or not,
as suggested by Mr Lee, the Appellants leading counsel must have
explained to the Appellant that a prison term was still open, the remand
order itself must have led the Appellant to realize that a prison term was
not out of the question.
30. Therefore, in the circumstances of this case, I would not
allow the appeal based on this ground.

9
Both parties have made reference to HKSAR v Lai Yip Sing [2001] 2 HKLRD 601.
10
See R v Gillam [1980] 2 Cr App R(S) 267.
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CONCLUSION
31. As set out above, the appeal is successful. In respect of
each of the offences to which the Appellant pleaded guilty, I would
substitute a community service order of 240 hours for the term of
2 months imprisonment. The CSO orders are to run concurrently.
32. I have confirmed with the Appellant that he is willing to
perform the service and I so order. I have also confirmed with
Mr Plowman whether there are any matters or significant changes
concerning the Appellant which would require an updated CSO report to
be prepared. Mr Plowmans answer to that was in the negative.
Therefore, in making this order, I place reliance on the existing
CSO report which was before the magistrate.






(Anthea Pang)
J udge of the Court of First Instance
of the High Court


Mr Edmond Lee, SADPP of the Department of J ustice, for the
Respondent

Mr Gary Plowman, SC, leading Mr Derek Chan, instructed by
M/s Cheung & Yip, for the Appellant