HKSAR v. Lee Yiu Wai

DCCC 556/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 556 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to a total of seven charges.  Six of those arise out of the defendant’s driving of a vehicle on 10 December 2014.  The final charge relates to the defendant’s failure to attend his trial in relation to that incident on 10 December 2014.

2.The charges include dangerous driving which relates to the way the car was driven; resisting a police officer at the time of his arrest; and then finally, status offences in respect of the defendant’s position whilst driving that vehicle, that he was already disqualified, that the vehicle had no third party insurance and was unlicensed, and also had a visual display unit which was illegal.

3.The defendant agreed all the facts and I have convicted him of all those offences.

4.In summary, the incident occurred on 10 December 2014 and the defendant was driving a Mercedes Benz motor vehicle at the time which was found to be stopped on double yellow lines on a road in Tin Shui Wai.  He was seen by police officers and one of the police officers alighted from the vehicle and, at that time, the defendant then drove off in the Benz.

5.What happened then was there was a chase of the Benz that the defendant was driving by the police vehicle.  The car was intercepted about 90 metres down the road.  When the police officer got off his car again, then the defendant drove his Benz away again. 

6.Eventually, the chase reached a red light at the signal-controlled junction at Tin Wing Road where there was what is described as an LGV stopped at the red traffic light in the middle of three lanes.  The defendant initially stopped his car behind that LGV, sounded his horn, then what is described as drove the Benz and bumped the left back side of the LGV twice.  He reversed the Benz and then accelerated and hit the right back of the LGV forcefully with the front left of the Benz.  This pushed the LGV forward some 6 to 7 metres, effectively pushing it out of the way.  Then having pushed that vehicle out of the way, the Benz drove off.  The driver of the LGV was not injured, fortunately.  There were various damages to that vehicle, leading to repair costs of $28,485.

7.The defendant, driving the Benz, went along and reached another traffic signal-controlled junction in Tin Wah Road. At that place there was a taxi stopped and the defendant repeated, effectively, what he did with the LGV; he hit both a Honda and the taxi from behind and forcefully pushed his way between a car described as a Honda and the taxi, and also ran the red light at the same time. 

8.The driver of what is described as a Honda was not injured as a result of the collision but his car was beyond repair and he incurred a loss of $15,000.  The driver of the taxi was injured; he received neck and chest pains and was given four days’ sick leave from hospital, 10 to 14 December - in fact, five days’ sick leave.  Repair costs to that taxi was $18,000.  There was also another person inside the taxi; he was going off shift.  He received neck pain and was given sick leave from 10 to 14 December.

9.The Benz drove on with the defendant driving it, past double white lines and into an unnamed road, against the direction of traffic, the facts say.  At that point he crashed into a metal barrier along the road and stopped, damaging 4.5 metres of that metal barrier.

10.When the defendant got out of the vehicle, he ran away.  The police officer got out and ran after him.  The defendant fell to the ground.  The defendant turned round and faced him.  It appeared to the police officer that the defendant was going to kick him so he got read to use his police baton.

11.The defendant was then arrested and cautioned.  The defendant said at that time he was disqualified from driving, he told the police that.  The traffic conviction record shows the defendant was disqualified on 19 June 2014 and had been disqualified from driving since 19 June 2014.  You see that represented in the 3rd charge the defendant faces. He was the owner of the Benz and the vehicle licence of that Benz had expired on 18 August 2014, which is represented in the 5th charge.  It was also found that the third party insurance coverage of the Benz had expired on 6 October 2014 and that is represented in the 4th charge.

12.The defendant made various admissions to the charges he faces. 

13.The Benz was examined and a defect was found, which is a DVD player that could display stored images at the driver’s seat.  Apparently that is contrary to the Road Traffic Ordinance and he faces Charge 6 as a result of that.

14.The defendant agrees he drove the Benz dangerously, that he resisted the police officer.  Furthermore, these matters were set down for trial on 24 November 2015.  The defendant failed to attend the court and a warrant of arrest was issued by the trial judge.

15.On 24 September 2016, the police attended a dispute at a car park in Tuen Mun and on a check of identity, the defendant was found to be wanted, a wanted person, and he was arrested on that day for his failure to appear in court on 24 November 2015.

16.The defendant’s antecedents are agreed. He has a number of previous convictions, including convictions for offences involving driving of vehicles.  The defendant was convicted in 1993 for offences involving possession of an offensive weapon and he was placed on probation for 12 months.  As early as 1994, the defendant was involved in vehicle offences, taking a conveyance without authority, driving without a valid licence and using a motor vehicle without third party risk cover for which he was sent to a reformatory school.  Since then, the defendant has been to a training centre for robbery and other motoring offences involving taking conveyance without authority.  The defendant was sentenced to imprisonment in 2001 for an offence of blackmail.  In 2001 he received a sentence of 6 years’ imprisonment for wounding with intent.

17.After release from that sentence of imprisonment, he was convicted for drug offences in 2009, placed on probation and then, finally, for breach of that probation order, sent to a Drug Addiction Treatment Centre, and was again sent to a Drug Addiction Treatment Centre in 2013 for more offences involving possession of dangerous drugs.  So the defendant has a poor criminal record.  As far as his driving record is concerned, he has offences involving driving at excess speed, careless driving and, of course, was disqualified from driving as a result of driving points -- for driving at an excess speed in June of 2014, and was also ordered to attend a driving improvement course. 

18.The defendant’s mitigation shows that he is a 37-year-old man.  It is apparent from the background report that I obtained that the defendant has, of late, changed his, it seems to be, attitude towards life and has settled down, I think is the way it could be put.  He is quite frank about his earlier life which involved a considerable number of offences, to a certain extent, what we call ‘wild living’.  But of late, he has settled down and has a daughter.  It is unfortunate that this new life has been interrupted by his rather irresponsible and dangerous activities on 10 December 2014.

19.If I can attempt to summarise the rather detailed background report, it is that the defendant was somewhat neglected as a child.  He grew up at boarding school and became affiliated with triad gangs in his neighbourhood in his early teens.  As a result, his gang activities landed him in crime and multiple rehabilitation treatment, including probation, reformatory school, detention and training centres and, finally, sentences of imprisonment.  He had difficulty reintegrating into society and turned to drugs, especially the drug ketamine, after which he was then convicted of various possession of dangerous drugs offences and sentenced to, finally, Drug Addiction Treatment Centre.

20.The defendant has also repeated multiple traffic offences in the past and the report says this:  “Fortunately, his love for his wife and little daughter seems to have turned the former” - what is described as - “gangster and drug abuser into a responsible father, holding a stable job to provide for his family fully over the past three years”.  It says his boss is waiting for him to resume duty in the face of a labour shortage and is eager to take the defendant back into his employment.

21.The defendant attributed these offences to his eagerness to take his daughter for emergency treatment of a fall injury that she had and he took flight in the face of the police because he knew that he was disqualified from driving.

22.The defendant promises to work hard and save money to pay compensation to the victims within six years upon his discharge as well.  I am told that the defendant’s wife is also trying to seek a loan from her relatives to settle part of the compensation bill during the adjournment period. 

23.So there are reasons to be optimistic about the defendant’s future.  He has had a poor record in the past but except for this incident, he appears to have settled into a determination to provide for his wife and child and lead a decent life.

24.As far as these offences are concerned, they are serious offences of their kind.  The most serious offence the defendant faces is the offence of dangerous driving.  This is the defendant’s first offence of that nature, however.  But the risks taken by the defendant, the damage caused and the injuries caused to innocent and unsuspecting people were serious and the defendant’s activities show a reckless criminal disregard for the other road users.  I think it is accepted by the defendant as well that driving of this nature will inevitably be to a sentence of imprisonment and such a sentence should be immediately served.  I feel, in respect of the 1st charge, I have no alternative but to sentence the defendant to a sentence of imprisonment. 

25.I take into account the matters I have heard about the defendant’s past and about how he has, apparently, changed his life.  I take into account the fact that both he and his wife have indicated they would try to pay compensation; however, having regard to the insurance position, that may be somewhat unrealistic in respect of this case, but it does show a willingness to recompense others for his criminality.  The defendant is also the father of a young child and any sentence of imprisonment will impact both on him and also on his daughter who will be deprived of the society and attention of her father for a period.  Also, the defendant’s wife will lose the support of her husband at a critical time.  These are all factors that I take into account when determining the appropriate starting point for these offences.

26.I will deal with the offences one by one now in terms of the sentences that should be imposed.  On the 1st charge, as I have indicated, it is a serious offence of dangerous driving involving a chase by police where other persons were endangered and injured.  I consider that a sentence of imprisonment should be imposed and I will take, in respect of that offence, a starting point for sentence at 21 months’ imprisonment.

27.The defendant is, as I understand it, entitled to be considered for a one-third discount in this case.  Although the defendant did not attend his trial on 24 November, the court could consider whether the one-third discount is appropriate.  I do note that Charge 7 exists and so in order to avoid what might be a double counting, I shall give the defendant the normal one-third discount on the 1st charge.

28.So the defendant’s sentence of imprisonment on the 1st charge will be one of 14 months’ imprisonment.

29.The defendant must be disqualified from driving.  I consider a 2-year disqualification from driving is appropriate in this case.  The defendant must also take a complete driving improvement course within 3 months of the expiration of any period of disqualification.

30.In respect of the 2nd offence, the offence of resisting arrest, resisting arrest is a serious matter and must be visited, in most cases, by a sentence of imprisonment.  I take a starting point of 1½ months’ imprisonment.  I reduce that to 1 month’s imprisonment for the defendant’s plea of guilty.

31.The 3rd charge, the defendant’s driving whilst disqualified, I consider a sentence of imprisonment is appropriate on this offence.  I take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.  There will also be a 12-month disqualification from driving.  That operates in addition to the disqualification on the 1st charge.

32.As far as the 4th charge is concerned, using a motor vehicle without third party insurance, this is not the defendant’s first offence of this nature.  I will take a starting point of 6 months’ imprisonment, reduce that to 4 months’ imprisonment for the defendant’s plea of guilty, and impose a disqualification from driving for 18 months for that offence.

33.The 5th charge, driving an unlicensed vehicle, there will be a fine of $1,000.

34.The 6th charge, using a motor vehicle with an illegal visual display unit, there will be a fine of $500.

35.On the 7th charge, failing to surrender to custody, of course such offences involve wasting of court’s time and expense and are normally visited by an immediate sentence of imprisonment.  I will take a starting point of 9 months’ imprisonment, reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.

36.I must now consider the correct overall totality for those sentences.  The sentences in respect of the 1st charge, the 3rd charge and the 4th charge all arise out of the same incident and I order that they be served concurrently. 

37.The facts on the 2nd charge occurred after the end of the car chase and I will order that the sentence on the 2nd charge be served consecutively to 1, 3 and 4. 

38.As far as the 7th charge is concerned, in order to achieve the correct what I term overall totality, I shall order that 3 months of that sentence be served consecutively to the other sentences on the other charges and 3 months concurrently. 

39.This will give an overall total sentence of 18 months’ imprisonment.

40.There is an overall total disqualification from driving for 3 years, and also the defendant must take and complete the driving improvement course within 3 months of that period of disqualification.  And there are fines of $1,500 to be paid forthwith.