HKSAR v. Chung Ho Yin

DCCC 649/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 649 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to a total of 7 charges on the indictment – count 1 of dangerous driving, contrary to Section 37(1) of the Road Traffic Ordinance, Cap. 374, Count 2 of resisting a police officer in the due execution of his duty, contrary to Section 63 of the Police Force Ordinance, Cap. 232, Count 3 of possession of a dangerous drug, contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134, Count 4 of possession of a poison included in Part 1 of the Poisons List, contrary to Sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138, Count 5 of driving while disqualified, contrary to Section 44(1)(b) of the Road Traffic Ordinance, Cap. 374, Count 6 of 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 and Count 7 of using a motor vehicle not designed and constructed that the driver while controlling the vehicle can at all times have a full view of the road and traffic ahead of the vehicle contrary to Regulation 26(1)(b) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374.

Facts

2.At around 9.50 a.m. on 30 March, 2016, a police officer on motorcycle patrol saw a private car with registration number UA 1689 making a U-turn across double white lines in Sycamore Street. The registered owner of the vehicle at all material times was Cheng Man-ho. He confirmed he had sold and handed over the vehicle to the Defendant in late March, 2016, after removing all his belongings from the said vehicle.  The Defendant was the driver of the said vehicle at the material time, and the only one in the vehicle. The police officer stopped the vehicle and asked the Defendant to follow his police motorcycle to Prince Edward Road West. As he was riding his motorcycle, the police officer noticed that the private car was not following but instead had reversed and fled along the southbound lane of Sycamore Street.  He immediately switched on the flashing lights on the police motorcycle and gave chase to the private car.  The police officer on the police motorcycle followed the private car the Defendant was driving from Sycamore Street near Tai Kok Tsui all the way to Kwai Tsing Interchange in Kwai Chung and he repeatedly commanded the Defendant to stop the private car using the speaker of his motorcycle but was ignored by the Defendant.  In the course of the chase, the Defendant drove through multiple red light signals.  After reaching the Kwai Tsing Interchange via Tsuen Wan Road northbound, the Defendant drove the private car through another red light signal and drove onto Tsuen Wan Road southbound. The police officer continued to chase after the Defendant. Another police officer driving a police vehicle with registration mark AM 6911 was at the junction of Cheung Sha Wan Road and Butterfly Valley Road at about 10.02 a.m. and learnt that the Defendant in the private car UA 1689 had stopped at the junction before a traffic light at the left 4^th lane on Cheung Sha Wan Road eastbound with the police officer on the motorcycle following the Defendant and there was traffic ahead.  This police officer stopped the police vehicle AM 6911 across the left 3^rd lane and the left 4^th lane of the junction to block the path of UA 1689.  However, UA 1689 driven by the Defendant moved forward between the 3^rd and 4^th lanes, the left side of UA 1689 bumped against a medium goods vehicle NU 2292 stationary in the 3^rd left lane and continued forward and crashed into the left front of AM 6911. The police officer in the police vehicle suffered from tenderness of the neck as a result of the collision and was given 2 days of sick leave.

3.The Defendant driving UA 1689 continued along Cheung Sha Wan Road eastbound, chased by police vehicles.  It drove through two more red lights on Cheung Sha Wan Road eastbound, and at 10.10 a.m. it turned into Cheung Wah Street against the flow of the traffic on that street – it took a sharp right turn and crashed into the metal railings at the junction of Cheung Sha Wan Road and Cheung Wah Street and finally came to a stop. This is Count 1.

4.After UA 1689 came to a halt after it had crashed into the metal railings, the Defendant alighted from the driver’s seat of UA 1689 and ran into Cheung Wah Street, and was chased by SPC34336 on foot. At the junction of Fuk Wah Street and Cheung Wah Street, he held onto the Defendant on his arms from behind in an attempt to arrest the Defendant – the Defendant struggled and they both fell to the ground. The Defendant continued to push the police officer with his hands and continued to struggle.  Two other police officers arrived and assisted him to subdue the Defendant.  Because of the fall, SPC34336 suffered tenderness, abrasion and redness on both knees and was given 3 days of sick leave. This is Count 2.

5.After he was arrested and cautioned, a body search was conducted on the Defendant, and amongst other things, one tablet containing 0.24 gramme of 3, 4-methylenedioxymethamphetamine, commonly referred to as Ecstasy, was found in a yellow coin bog inside the brown messenger bag the Defendant was carrying. This is Count 3.

6.UA 1689 was subsequently searched and a foilpack containing 5 tablets containing clozapine, a listed Part 1 Poison, was found in the ashtray of the private car. This is Count 4.

7.The Defendant had been disqualified from holding or obtaining any driving licences at the material time when he was driving UA 1689. This is Count 5.

8.As he was disqualified from driving, there was no valid third party insurance covering the Defendant when he was driving at the material time. This is Count 6.

9.UA 1689 was subsequently examined by a motor vehicle examiner and it was found that the upper edge of the windscreen was blanked off by a strip of sticker which was 200 millimetres in width and he opined that a driver controlling the said private car on a road could not have a full view of the road and traffic ahead of the private car.  This is Count 7.

10.A sketch showing the final stopping position of UA 1689, another sketch as well as three albums of photos were produced by agreement for the Court’s viewing. The Government Chemist’s Certificate was also submitted.  These were all admitted by the Defence.

11.I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charges that he faced, and accordingly I convicted him of all the charges.

Previous Convictions

12.The Defendant’s criminal record dates back to 2001. He has 20 previous convictions in 13 court appearances, including 11 dangerous drugs related offences, one of which was for trafficking in dangerous drugs in 2010.  His most recent convictions on his criminal record were in 2015,  in KCCC 4242/2014, when he was sentenced to the DATC for some charges and fined for some charges.  3 of the six charges he admitted in KCCC 4242/2014 are similar to some of the present charges. I had called for the file of KCCC 4242/2014 and have viewed it.  He was sentenced on 27/3/2015.  For the offence of dangerous driving, contrary to section 37 of the Road Traffic Ordinance, Cap. 374, he was sentenced to the DATC and disqualified from driving all classes of vehicles for 6 months and ordered to attend a driving improvement course, the disqualification order to continue until he had completed the driving improvement course.  For the offence of using a motor vehicle on a road without third party insurance contrary to Section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance,  he was sentenced to the DATC and disqualified from driving all classes of vehicles for 12 months, and for the offence of possession of a dangerous drug contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance he was sentenced to the DATC with conviction to be recorded.  The disqualification period had just passed by the time of the present offences, but as the Defendant had not yet completed the driving improvement course, the disqualification order was still in effect at the time of the present offences.

13.In respect of his traffic record, his driving licence was first issued on 05/07/2005. There are three fixed penalties and four convictions.  The four convictions on the traffic record are for KCCC 4242/2014 and are also reflected on his criminal record.

Antecedent Statement

14.This disclosed that the Defendant was born in Hong Kong    and is now aged 32 years. He has received education until Secondary 2 level.  He worked as a transportation worker in 2016. He had been to the DATC between 27/3/2015 until 27/9/2015.  He is a drug addict and consumed about 0.5 gramme of ketamine twice a week.  He is married and lives with his wife and three children.  No issue was taken by the Defence on the contents of the Antecedent Statement.

Mitigation

15.Counsel submitted in mitigation that the Defendant was the sole breadwinner of his family. He was a full time delivery worker earning $10,000 a month.  His father was aged 57 years and his mother 48 years, and both relied substantially on the Defendant for their daily living. The Defendant gave $6,000 each month to his wife and $2,500 to his parents. He had siblings but they mostly ignored the family. The Defendant took dangerous drugs to relieve the pressure he was under.  He had been sentenced to the DATC in 2015 and was released from the DATC in September, 2015.  After his arrest for the present incident, he had been recalled to the DATC and was released from the DATC on 1/8/2016. Counsel submitted that he was no longer a drug dependant. The Defendant was determined to quit dangerous drugs. 

16.It was further submitted that the Defendant loved to drive and had dreamed of having his own car. He had been saving money to buy a car.  In 2014, his relationship with his wife and family was poor and his wife wanted a divorce. The Defendant was very stressed. But recently his wife had decided to give him another chance.

17.Counsel submitted that his conviction in 2015 for dangerous driving arose because of a quarrel he had had with a police officer who had asked to see his identity card – the Defendant had ‘naughtily’ turned around and driven off.  Eventually he had been sent to the DATC by the magistrate for the offence and disqualified from driving for 12 months. The present offence was almost at the end of the disqualification period.  I have looked at the file of KCCC 4242/2014.  The facts that the Defendant had admitted when he admitted the offences are quite different from that submitted by Counsel.  The disqualification orders that were made by the magistrate have been dealt with by me in paragraph 12 above – for the offence of dangerous driving, he was disqualified for 6 months and ordered to attend a driving improvement course.  He was disqualified for 12 months for the offence of using a motor vehicle on a road without third party insurance.

18.Counsel submitted that the Defendant had attended a driving improvement course in January or February of 2016 so he could regain his driving licence upon completion of the disqualification period.  But before he got back his driving licence, he saw on the internet an advertisement for the sale of a Mercedes – his dream car – and the price was within his budget.  He used his savings and bought the car – UA 1689, the car he was driving at the material time and which is depicted in photos 1 and 2 of Album 3 – on 29/3/2016.  He paid for the car in full on 29/3/2016 and  had arranged to meet the owner on 30/3/2016 at the Transport Department at Cheung Sha Wan.  The Defendant had noticed a problem with the car battery and intended to take the car for a complete check at a garage before meeting the owner at the Transport Department.  He took a risk to drive the car as he was almost at the end of the disqualification period, and it was a short distance from his home in Kwai Shing Estate to the garage in Sham Shui Po.  He was intercepted by the police before he reached the garage – he was afraid and acted stupidly by trying to escape and was now very remorseful.  She sought leniency on behalf of the Defendant.  Ms. Hung also referred to various cases to assist the Court in passing the appropriate sentences for the different charges, but accepted that each case had to be viewed on its own facts.  She suggested a starting point of 2 to 3 years as being appropriate and to bear in mind the totality principle of sentence and the proximity in time of the offences. She also submitted letters in mitigation from the Defendant’s family members.

19.The Prosecution submitted an authority, HKSAR v. Pang Ho-yin, CACC 284/2013 wherein the facts were similar to those herein. The Prosecution accepted that the charges the Appellant was convicted of differed from those herein, in particular that there was dangerous drugs found in the Appellant’s urine when it was examined, but there was no evidence that the Defendant herein had consumed any dangerous drugs prior to driving the vehicle.  Ms. Hung for the Defendant also urged the Court the bear in mind that there was no evidence that the Defendant herein was driving under the influence of dangerous drugs.

20.After hearing Counsel in mitigation, I adjourned the matter until 21^st September, 2016, calling for a Background Report on the Defendant as well as the file of KCCC 4242/2014. When the matter resumed before me on 21^st September, 2016, the report and the file were both before me.  The Defendant through his Counsel confirmed that he agreed with the contents of the Background Report. After hearing further mitigation, I adjourned the matter until today to deliver sentence.

Sentencing Considerations

21.Section 37(1) of the Road Traffic Ordinance, Cap. 374, provides that a person is liable to a fine at level 4, namely $25,000, and to imprisonment for 3 years.  Section 37 also provides that the Court shall order the person to be disqualified for a period of not less than 2 years for a second or subsequent conviction, unless the Court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified. The Court shall also order the person to undergo and complete a driving improvement course under Section 72A(1A) unless the Court for special reasons decides not to make such an order. 

22.A person convicted of an offence of resisting a police officer in the execution of his duty contrary to Section 63 of the Police Force Ordinance, Cap. 232 is liable on summary conviction to a fine of $5,000 and 6 months’ imprisonment.

23.For offences of possession of a dangerous drug, Section 8(2) of the Dangerous Drugs Ordinance, Cap, 134, provides that a person convicted on indictment is liable to a fine of $1,000,000 and subject to Section 54A, to imprisonment for 7 years.  Section 54A requires the Court, if the Court is considering imposing a sentence other than a non-custodial sentence, to consider a DATC Report before sentence unless the Defendant is convicted in the same proceedings of any other offence and is sentenced for that other offence to imprisonment for more than 9 months.

24.For offences of possession of poison included in Part 1 of the Poisons List, Section 34 of the Pharmacy and Poisons Ordinance, Cap. 138, provides that a person is liable on conviction to a fine at level 6, namely $100,000, and to imprisonment for 2 years.

25.A person convicted of driving whilst disqualified is liable to a fine of $10,000 and imprisonment for 12 months. The Court shall order the person to be disqualified in the case of a first conviction for a period of not less than 12 months unless the Court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.  The period of disqualification shall be in addition to any other period of disqualification ordered under any other provision of the Road Traffic Ordinance, Cap. 374.

26.For the offence of using a motor vehicle without third party insurance, the ordinance provides that a person is liable to a fine of $10,000 and to imprisonment for 12 months.  The Court shall order the person to be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction unless the Court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

27.In respect of Count 7, it is provided that any person convicted is liable to a fine of $10,000 and to imprisonment of 6 months.

28.Most authorities on ‘dangerous driving’ deal with the more serious offence of ‘dangerous driving causing death’ or ‘dangerous driving causing grievous bodily harm’ under Sections 36 and 36A of the Road Traffic Ordinance, Cap. 374.  However, the definition of ‘dangerous driving’ in these sections as well as in Section 37(1) are identical and clearly, all three offences are referring to the same driving manner and are distinguished by the severity of their consequences.

29.There is no sentencing guideline for the offence of dangerous driving. Each case must be decided on its own facts. The Court of Appeal in SJ v Poon Wing Kay, [2007] 1 HKLRD 660, set out the relevant sentencing principles and the matters that a sentencing court must take into account when considering an appropriate sentence.  The Court must look at the overall circumstances and the overall culpability of the offender.  The sentencing principle is one of deterrence.  The law imposes a standard on every driver to ensure that all road users who come into contact with motor vehicles are safe, be they drivers, passengers or pedestrians.  This principle was repeated in SJ v. Lau Sin Ting, [2010] 5 HKLRD 318, where the Court of Appeal said at paragraph 36 that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice.

30.Culpability and a selfish disregard for the safety of other road users are often dominating factors in considering the appropriate sentence.  The Court of Appeal has repeatedly said that there is no excuse for driving dangerously since it involves taking a risk whilst in control of a potential lethal machine (see SJ v Lam Siu Tong, [2009] 5 HKLRD 601).

31.The aggravating feature in this case is that the Defendant drove dangerously to avoid apprehension – he was driving at a time when he did not hold a valid driving licence – he had been disqualified from driving all classes of vehicles until he had completed a driving improvement course.  It was submitted by Defence Counsel that he had attended the course in January or February 2016, but had not yet retrieved his driving licence – the disqualification order was still in effect. He was driving without insurance –this put all other road users at risk.  It was a prolonged, persistent and deliberate course of bad driving over a period of some 20 minutes – he was first seen by the police officer on his police motorcycle at 9.50 a.m. in Sycamore Street in Tai Kok Tsui – the Defendant drove through multiple red light signals during the chase although the police officer kept telling him to stop – he drove from Sycamore Street to the Kwai Tsing Interchange in Kwai Chung, and then went onto the Tsuen Wan Road, southbound, and finally came to a halt after  the  car had crashed into the metal railings at the junction of Cheung Sha Wan Road and Cheung Wah Street, and in the course of the chase, he had damaged 2 other vehicles, one of which was a police vehicle, resulting in a police officer sustaining neck tenderness due to the collision. Driving as he did, the Defendant showed a selfish disregard for the safety of other road users.  In my view, it is the greatest good fortune that no one was injured more seriously, and the damage was not greater.  Judging from the circumstances of the case, I have no doubt at all that the dangerous maneuvers were the result of the Defendant’s attempt to evade police investigation and thereby exposing his driving whilst disqualified, as well as driving without third party insurance, and the illicit substances that were in his possession.

32.I have considered all that has been urged upon me in mitigation by Counsel on behalf of the Defendant, as well as the contents of the letters submitted and the contents of the Background Report.  I have considered the cases submitted by Ms. Hung in mitigation.  I note that the facts and the circumstances of the defendants therein differ from those in the case before me.  In respect of the case of Pang Ho Yin, Patrick, supra, submitted by the Prosecution, I do bear in mind that the facts are different, in particular as the driver there was driving under the influence of drugs. In sentencing the Defendant, his greatest mitigation really are his pleas of guilty. There is little else of weight before me.

33.Taking into account the circumstances of the offences, and the Defendant himself, I am satisfied that the only appropriate sentence is a custodial one.

34.In respect of Count 1, I take as a starting point 2 years’ imprisonment (24 months). Giving him full credit for his plea of guilty, the Defendant is sentenced to 1 year and 4 months’ imprisonment (16 months).

35.There is mandatory disqualification for dangerous driving unless the Court for special reasons decides not to make such an order. No special reasons have been put forward by Defence Counsel, nor do I see any in the mitigation put forward. I find no special reasons not to disqualify the Defendant. This is the Defendant’s second conviction for the offence of dangerous driving.  I am satisfied taking into account the circumstances of the driving that a period of 3 years’ disqualification is appropriate. The Defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.

36.No special reasons have been put forward by Defence Counsel, nor do I see any, for not making a driving improvement course order.  The Defendant is ordered to attend and complete a driving improvement course within the last 3 months’ of the disqualification period at his own cost, and the disqualification order will continue to run, until he completes his driving improvement course.

37.In respect of Count 2, resisting a police officer in the execution of his duty, the ‘resisting’ was by way of a struggle, resulting in the Defendant and the police officer both falling to the ground, where the Defendant pushed the police officer with his hands and continued to struggle.  The Defendant was subsequently subdued with the assistance of other police officers.  SPC 34336 suffered from tenderness, abrasion and redness on both knees as a result of the fall and was given 3 days’ sick leave. The resistance by way of a struggle in my view is not the most serious, and the injuries sustained by the police office appear to be minor.  However, there must be a deterrent element in the sentence. A proper starting point is 3 months’ imprisonment. Giving him full credit for his plea, he is sentenced to 2 months’ imprisonment.

38.In respect of Count 3, possession of a dangerous drug, Section 54A does not apply. The appropriate staring point is 6 months’ imprisonment, and giving him full credit for his plea, he is sentenced to 4 months’ imprisonment.

39.In respect of Count 4, possession of poison included in Part 1 of the Poisons List, the appropriate staring point is 1 ½ months’ imprisonment. Giving him full credit for his plea, he is sentenced to 1 month’s imprisonment.

40.In respect of Count 5, driving whilst disqualified, the appropriate starting point is 3 months’ imprisonment. Giving him full credit for his plea, the Defendant is sentenced to 2 months’ imprisonment.  On a first conviction, there is mandatory disqualification of 12 months unless the Court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified. No special reasons have been put before me nor do I see any in the mitigation put forward.  The Defendant is therefore disqualified for 12 months’, and this disqualification order is in addition to the disqualification of 3 years imposed in respect of Count 1.

41.Count 6 is using a motor vehicle without third party insurance.  Driving without insurance places all other road users at risk should an accident occur.  I am satisfied that the appropriate starting point is 6 months’ imprisonment. Giving him full credit for his plea, the Defendant is sentenced to 4 months’ imprisonment.

42.By virtue of Section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, unless the Court finds special reasons, there is also mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 36 months from the date of conviction.  No special reasons have been put forward. I can find no special reasons not to disqualify the Defendant.  This is the second occasion that the Defendant has been convicted of the offence of using a motor vehicle without third party insurance.  I am satisfied that a period of 18 months’ disqualification is appropriate. The Defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today.

43.For Count 7, the norm is a financial penalty. The Defendant is fined $750.

44.Bearing in mind the principle of totality, I will order that the sentences in respect of Counts 1, 5 and 6 be served concurrently.  The sentence in respect of Count 2 be served consecutively to that of Counts 1, 5 and 6.  The sentence in respect of Counts 3 and 4 be served concurrently, but consecutively to the sentences imposed for Counts 1, 2, 5 and 6, making a total of 22 months’ imprisonment. I consider that this is sufficient to reflect the overall criminality of the Defendant’s conduct.

45.The disqualification period in Count 1 and Count 6 are to be served concurrently, whilst that for Count 5 is consecutive to that of Count 1, making a total of 4 years disqualification.

46.The Defendant must undergo and complete the driving improvement course in the last 3 months of the total disqualification period of 4 years, and the disqualification order will continue to run until he completes the driving improvement course.

Defendant warned of effect of disqualification and driving improvement course orders and consequences of breach thereof.