HKSAR v. Mok Lai Man, Edward

DCCC 258/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 258 OF 2017

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REASONS FOR SENTENCE

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1.It was a scene worthy of a Hollywood movie.  On 5 December 2016, at about 1740 hours, a police officer on motor cycle patrol first noticed a vehicle LD 8880 (the vehicle) parked in a restricted zone on Sunny Bay Road, Lantau.  Upon closer inspection, he noticed its driver, Mr Mok Lai Man Edward (the defendant), appeared to be talking on the telephone.  The policeman pulled over in front of the vehicle, upon which the vehicle drove off.

2.While the vehicle was travelling on Cheung Tung Road westbound, it swerved into the opposite lane (ie the eastbound lane) for 2 or 3 times.  It passed by an intersection (ie Sham Shui Kok Drive), reversed and drove back into Sham Shui Kok Drive.  It then made a right turn into Cheung Tung Road eastbound.  The defendant’s antics caused the policeman who had all along been travelling behind the vehicle to turn around and follow the vehicle, meanwhile sounding his horn and gesticulating its driver to stop, but the vehicle just sped on.

3.Thus began a 30 minute pursuit, covering a distance of 22 kilometres.  It ended up with the defendant crashing the vehicle into a parapet strand along the Lantau Link, LD 8880. 

4.During the pursuit, the defendant made the following manoeuvres:-

Along Cheung Tung Road westbound

(i) swerving into the opposite lane, ie, Cheung Tung Road eastbound, for two to three times;

(ii) having driven past the intersection at the junction of Shum Shui Kok Drive, the defendant reversed back into the junction and then drove forward before turning back into Cheung Tung Road, this time travelling on the eastbound lane.

Along Cheung Tung Road eastbound

(iii) ignoring the police officer’s horn and gesticulations, instead keeping a speed of about 80 kilometres per hour along Sunny Bay Road towards Penny’s Bay Highway;

(iv) ignoring the police officer’s hand signal to stop at a roadblock set up on the first lane of Sunny Bay Road, instead accelerating, driving onto the second lane to go past the roadblock. The defendant then executed two about turns and ended up going back on the same lane on Sunny Bay Road;

(v) forcing through the same roadblock (now extended by police officers to cover the first and second lane) by driving between the first and second lane, in the process ramming into a coach (vehicle 1), a light goods vehicle (vehicle 2) and a police vehicle (vehicle 3) which were stationary at the roadblock. The defendant then took Penny’s Bay Highway, passed the North Lantau Highway and then drove onto the Lantau Link.

Along Lantau Link

(vi) driving at a speed of 100 to 120 kilometres per hour when the limit for the stretch of road was 80 km/h;

(vii) swerving between the first and second lanes to overtake other vehicles.

Near Chainage 14.2E Lantau Link

(viii) ignoring demands to stop via loudspeaker by the pursuing police officers from a police vehicle (vehicle 4) travelling immediately behind on the first left lane;

(ix) while the vehicle and vehicle 4 were travelling side by side on first and second left lane respectively, swerving into the right lane (ie the second left lane) and ramming into the left side of vehicle 4.

Near Chainage 14.8E Lantau Link

(x) accelerating to cut into the second left lane to overtake vehicle 4. In the process ramming into the left side of vehicle 4.

Near Chainage 15.5E Lantau Link

(xi) accelerating and ramming into the rear of a private car (vehicle 5) which was travelling on same lane, ie, the second left lane.

Near Chainage 15.8E Lantau Link

(xii) accelerating suddenly and cutting into the first left lane from the second left lane, in the process causing a slight collision with vehicle 4 which was in pursuit on the first left lane.

5.As a result of the collision, the defendant lost control of the vehicle and crashed into the tensioned parapet strand on the left, then spun around before coming to a halt.

6.After the crash, the defendant got out of the vehicle and climbed over the fencing of the bridge.  He was eventually subdued by the police officers.  At the time, the defendant proclaimed aloud his wish to die.  He remained silent under caution.

7.The blood sample taken from the defendant at the hospital confirmed that there was no less than 75 milligrammes of alcohol in 100 millilitres of blood which is over the subscribed limit of 50 milligrammes, a Tier 1 overdose.

8.Under caution, the defendant admitted that he had consumed a bottle of brandy as he was depressed.

Injuries and damages

9.As a result of the incident, two police officers suffered mild injuries, namely, swelling of the ankle and wrist respectively. Both were granted four days’ sick leave to recover.

10.In all, five vehicles were damaged in varying degrees and their bills of repair run up a grand total of $306,514:-

Vehicle 1

Damages to the left side bumper. The cost of repair estimated to be HK$10,000.

Vehicle 2

Damages to the right side door, right side front bumper and indication lamp. The cost of repair estimated to be $9,000.

Vehicle 3

The police vehicle’s right side had been damaged. The cost of repair estimated to be $30,938.

Vehicle 4

The police vehicle incurred damages on its front side and left side. The cost of repair was estimated to be $246,576.

Vehicle 5

The private car was damaged on its rear door and rear bumper. The cost of repair was estimated to be $10,000.

11.It is obvious to anyone that the defendant’s driving had been, dangerous, reckless and irresponsible, falling far below the standard of a competent and careful driver.

12.For the above facts, the defendant is convicted of,

(i) dangerous driving, and

(ii) driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit

upon his pleas and admission of facts.

Discussions

13.A license to control a mechanical device as powerful as a motor vehicle should be considered a privilege for, if handled improperly, it could be a lethal weapon causing irreversible pain, suffering, financial loss and even loss of life to other users of the road.  With this privilege, there should come an equally hefty responsibility to drive carefully and responsibly.  Even accepting that, at the time, the defendant was in a very difficult stage of his life, it was selfish and irresponsible for him to behave in the way he did.

14.From the moment the defendant refused to heed the command of the police officer, the pursuit that ensued took over 30 minutes during which the defendant had (at least twice) ignored demands to stop and had used his car as a weapon to ram against police vehicles in pursuit, posing obvious dangers to the police and any bystanders.  It is almost a miracle that the police officer had only sustained minor injuries and there was no civilian casualty. 

Sentencing for dangerous driving charge

15.For a first offender, as is the case for the defendant, a conviction of dangerous driving carries a maximum sentence of a fine of $25,000 and imprisonment for 3 years. 

16.There is no sentencing guideline to the offence of dangerous driving as, obviously, all past sentences are based on the facts upon which the particular offender was convicted.  In the English case of R v Cooksley [2003] EWCA Crim 996, [2003] 3 All ER 40, the Court of Appeal has set out general sentencing principles for dangerous driving which have since been adopted as relevant and applicable to Hong Kong (see Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660).  Although both cases dealt with the more serious offence of dangerous driving causing death, the principles enunciated are equally applicable to the present case, while giving allowance to the fact that no serious injuries had been caused.

17.Simply put, the dominant sentencing principle is that of general deterrence, and the secondary purpose of:

“Educating the public as to the potential dangers to others involved in driving a motor vehicle and the social responsibility that rests on the shoulders of all drivers to drive safely and with due regards to the others.”

18.A sentencing court must look at the overall circumstances and the overall culpability of the offender and the harm caused to arrive at a balanced, proportioned and just sentence order.

Culpability of the driving

19.The manner of the defendant’s driving obviously reflected a conscious effort to evade the lawful apprehension of the police. It was not a desperate attempt to commit suicide.  In addition, the present case was not a case of momentary lapse of judgment but rather a prolonged course of behaviour, fuelled in some measure by the ingestion of alcohol, exhibiting a selfish, reckless disregard for the safety of the police officers and other users of the road.

20.In the judgment of R v Cooksley (supra), the English Court of Appeal set out a non-exhaustive list of relevant factors for the purpose of assessing the culpability of the offence of dangerous driving causing death.  In the present case, I can identify the following matters in the present case relevant for consideration:-

(i) Consumption of alcohol. The defendant admitted he had drunk a whole bottle of whisky, although judging from the quantity of alcohol in his system, he probably had consumed less than that. However, it is a fact that the alcohol content in his blood had exceeded the legal limit.

(ii) A prolonged, persistent and deliberate course of very bad and aggressive driving; driving at an excessive speed, driving backwards on the highway, driving onto the opposite lane, deliberately ramming into other vehicles to force his way through the roadblock and hitting the rear of another vehicle travelling on the same lane.

(iii) Defiance of authority by ignoring the police officer’s command, driving through the roadblock twice and, worse still, ramming through a roadblock and using his vehicle to attack the police vehicle.

(iv) The personal injuries caused to police officers.

(v) The damages caused to the other five vehicles which, as admitted by the defendant through his counsel, he was unable to compensate.

21.Since all sentence orders are fact-sensitive and will be of little assistance to the case at hand, but decisions on facts similar to the present case do give a proper perspective on sentencing, I take into consideration the following cases:-

Secretary for Justice v Ko Wai Kit Paul CAAR 12/2001

In this case the defendant drove against the traffic, jumped the red light and was pursued by the police. During the car chase that ensued, his vehicle struck a petrol-tanker and two private cars while he was driving through a gap between them, ramming a police vehicle against the concrete barrier of a flyover and whilst driving through another junction, caused a police officer to draw his revolver and fire at his car. Later, the defendant drove past the hard shoulder to ream the opposite lane where he drove against the traffic. After colliding with a taxi and three private cars, the defendant reversed and damaged another lorry and three police motorcycles.

The Court of Appeal considered the facts warranted a 3 years’ starting point.

HKSAR v Jim Chong Shing, CACC 186/2003

Upon seeing a police roadblock, the defendant U-turned and travelled against the traffic at a high speed before ramming through two police vans placed to block off the road. He then continued to drive against the oncoming traffic. At one point, both the defendant’s vehicle and the police car stopped side by side in the road but upon being told to turn off the engine, the defendant reversed his vehicle into another road before making good his escape. The pursuit lasted 10 minutes. The defendant also had three previous convictions of dangerous driving, two of reckless driving and one case of motor racing.

The Court of Appeal considered this an appalling case of dangerous driving and approved the starting point of 2½ years adopted by the trial judge.

22.I consider the present case a serious example of dangerous driving, coupled with a deliberate and reckless disregard for the authority and also for other users of the road.  The use of a vehicle as a weapon to ram against other vehicles is also an important factor.  The facts of the case call for 30 months’ imprisonment.

Disqualification

23.This being the defendant’s first conviction of dangerous driving, under section 37(2) of the Road Traffic Ordinance, a person so convicted shall, unless there are special reasons, be disqualified from driving for no less than 6 months.  I do not see any special reason in this case, nor did the defence counsel try to convince me that there was any. 

24.The purpose of the disqualification is forward looking and preventive for the purpose of protecting road users in the future from the likes of the defendant.  For this reason, the length of the disqualification should not be tailored to take into account the anticipated date of release.

25.Yet the substantial period of disqualification will mean hardship on a defendant who, for various reasons, would have to drive.  It may tempt the offender to drive whilst disqualified (see R v Cooksley).  Having considered the facts of the case, I consider 3 years’ disqualification is appropriate in the circumstances.

Sentencing for driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit

26.At the scene, the police officer found that there was a strong smell of alcohol.  Under caution, the defendant admitted he had consumed half a bottle of Louis XIII (which the undersigned assumed to be a brand of brandy).  The defendant’s blood sample also confirmed that the content of alcohol exceeded the legal limit and falls within tier 1 (under 80 milligrammes of alcohol) under section 39A(1)(a) of the Road Traffic Ordinance, the conviction of which renders him liable to a fine of $25,000 and imprisonment for 12 months.  There is also a mandatory disqualification of 6 months under section 39(2)(a).

27.This was the defendant’s first conviction. Despite his confession of having consumed half a bottle of hard liquor, he probably did not drink that much in view of the relatively small quantity of alcohol in his system.  The two offences were committed in the same set of circumstances.  The ingestion of alcohol has been considered part of the circumstances for assessing the culpability for the dangerous driving charge. It could be considered double-counting if additional sentence is to be imposed for this charge. 

28.Accordingly, I would order the defendant to be sentenced to 1 month’s imprisonment, disqualified for driving for 6 months, each of the orders to run concurrently with the order to be imposed in respect of the 1st charge.

Mitigation

29.As has been said before, the principle for sentencing in respect of offences of this nature is that of deterrence.  For his benefit, I did order reports from a probation officer, psychiatrist and psychologist in order to see if there are any matters which may be to his advantage in sentencing.

30.The defendant is a 46-year-old businessman, married with a young son.  He had two previous convictions relating to dishonesty, for both of which he was fined.  His previous convictions therefore are not relevant to the present case. 

31.I take into consideration the background contained in the reports and also the mitigation.  I accept that at the time of the incident, the defendant had been going through a rough stage of his life. He might even be suicidal at some point.  But both the phycologist and the psychiatrist stated that there is no pathological reason to the offences.

32.I have also been informed that the defendant is a good provider for his family.  I also accept that the sentence to be meted out by this court will have a devastating effect on him and his family.  My heart goes out to them but it does not derogate from the fact that the defendant had behaved in a consciously irresponsible manner which posed danger to other members of society and also to the authority of the police officers.  There is also no evidence to suggest that he was so intoxicated that he did not know what he was doing.  In my view, however downtrodden one may feel, it is not an excuse to take it out on the others. 

33.The only valid mitigating factor in this case is his plea of guilty.  I therefore reduce the 30 months’ imprisonment down to 20.  He is also disqualified for 3 years.

34.In response to counsel’s submissions, I must also point out that I do not simply sentence a person as an “ordinary criminal”. The defendant is, as far as I am concerned, a person convicted of a crime and not “an ordinary criminal” as suggested by counsel for the defence.  All the sentence orders meted out by this court are against an individual and reflections of the culpability of his behaviour.  A criminal is so called because he had been convicted of a certain crime.  It is not a status.  He is otherwise a normal person and he is treated with the same dignity and respect like any others.

35.So in respect of the present proceedings, for the 1st charge, the defendant is sentenced to 20 months’ imprisonment.  He is also disqualified from driving for 3 years.  In respect of the 2nd charge, he is sentenced to a term of imprisonment for 1 month and disqualified for 6 months, to run concurrently with the existing orders. 

36.In addition, during the last 3 months of his disqualification, he has a duty to go to the Transport Department to enrol and complete a driving improvement course.  I must warn the defendant that it is his duty to do so.  No one is going to remind him.  If he fails to enrol and complete the driving improvement course, he might be prosecuted by the police.