HKSAR v. Lee Ming Wai

DCCC 1130/2018

[2020] HKDC 46

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1130 OF 2018

----------------------------

----------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.The defendant is convicted of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374 (1^st charge); driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (2^nd charge); and using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (3^rd charge) on his own plea and agreement to summary of facts.

Facts

2.At about 1:15 am on 31 May 2018, police officers set up a snap check outside 128 Tai Po Road (Southbound) in Sham Shui Po. 

3.At about 1:20 am, PW1 saw a private vehicle registration number TT6673 (“V1”) approaching.  He signalled V1 to stop and found the defendant and another male on board.  PW1 instructed the defendant to pull over for inspection, but the defendant disregarded instruction and drove away immediately.  PW1 is one of the police officers at the snap check, PC12813.  PW1 and other officers then chased after V1 and gave repeated warnings for V1 to stop. 

4.V1 first made a left turn into Wong Chuk Street.  While turning left into Sai Yeung Choi Street North, the front offside of V1 collided with rear nearside of another moving vehicle (“V2”), causing bump marks and damages to the rear nearside and bumper of V2.

5.When V1 reached the dead end of Sai Yeung Choi Street North, it braked outside the Gardenia and drove backwards to Wong Chuk Street.  When it was passing by PW1, it braked again and drove towards PW1. Feeling threatened, PW1 drew his revolver and pointed at V1 as precaution.  PW1 also dodged and sprained his right ankle.

6.V1 then made a three-point U-turn.  In so doing, the rear of V1 rammed into a metal pole outside the carpark of the Gardenia. V1 then travelled along the opposite directions of Wong Chuk Street and Tai Po Road (Southbound) until colliding head to head with another moving vehicle (“V3”), causing bump marks and damages to the front nearside of V3.

7.After colliding with V3, V1 did not stop and continued travelling along the opposite direction of Tai Po Road (Northbound). It then turned right to Nam Cheong Street and disappeared from the sight of PW1 and other officers.

8.CCTV installed in the vicinity captured V1 kept travelling along the opposite direction of Nam Cheong Street.  It then turned right and entered Yiu Tung street before stopping outside No 9 Yiu Tung Street.  There, the defendant and the male abandoned V1 and escaped from the scene.

9.The defendant was arrested on the same day.  He did not have a valid driving licence and V1 did not have any third party insurance coverage.

Criminal Record

10.The defendant has 11 previous convictions, none similar, the last one being in July 2019 involving a handling of stolen goods case for which he was sentenced to 2 years and 2 months’ imprisonment.

Mitigation

11.The defendant is aged 27 years old.  He is born in Hong Kong and prior to his arrest he resided with his parents in a public housing estate.  The defendant has previously worked as a delivery worker, earning $12,000 a month and he contributed $5,000 to $8,000 per month to his family. 

12.In year 2018 he started working in SOGO department store as a part-time warehouse worker, earning only several thousand dollars per month.  The income does not allow him to make continuous payment to his family.

13.It is submitted by defence counsel that the reason for the defendant committing the offence was that at the end of year 2017 the whole family was threatened by loan sharks.  This happened as a result of the defendant’s elder sister and brother-in-law having failed to repay a loan.  As a result, the defendant wanted to earn fast money to provide financial assistance to his sister.  Therefore, he engaged himself in handling stolen goods in January 2018 and he was not arrested until 15 June 2018, ie later than the date of arrest in the present case.

14.On the day in question, when the defendant, then driving the vehicle without a valid driving licence, was signalled to stop by the police, his intention was to avoid being apprehended, the reason being that he was then driving without a driver’s licence and that he had previously already committed the handling stolen goods offence.

15.It is submitted that although the PW1 did sprain his ankle, the injury was not serious.  It is admitted that the driving of the defendant on the day did cause damage and bump marks to two vehicles and as well as damage to a metal pole of the car park outside Gardenia.

16.Defence counsel said the defendant is now deeply remorseful as to what he has done and he has pleaded guilty at the earliest available opportunity. 

17.It is also admitted that in the course of escape the defendant did drive irresponsibly but he did not intend to cause injury to the police officer or any damage to the two vehicles.

18.It is said that the defendant wishes to turn a new leaf on his release from prison that he will work as an apprentice under his father and start a new life.

19.Mitigation letters were presented to this court.  The letters from his family basically say that the defendant, being the youngest son in the family, is loved by all members and they say also that the defendant is a filial son and he loves his family. 

20.It is said that he committed the present offences to earn money to repay his elder sister’s debts.  The family members say that they are all hurt, learning the commission of this offence by the defendant.  They say the defendant has now determined to start afresh after his release from prison and that he would learn the plumber/electrician trade from his prison and would also do volunteer work.  They ask this court to deal with the defendant leniently.

21.Defence counsel also urged this court to consider making part of the sentence in the present case concurrent with the consolidated cases of DCCC 454/2018, DCCC654/2018 and DCCC774/2018.

Discussion

1st charge

22.On conviction upon indictment, the maximum sentence for this offence is a fine at level 4 and 3 years’ imprisonment. 

23.In the case of R v Cooksley & Ors [2004] 1 Cr App R (S)1, the English Court of Appeal identified a non-exhaustive list of factors relevant to sentence for dangerous driving causing death cases.  These factors, in the view of this court, is also relevant for the purpose of sentencing in cases involving just dangerous driving.  They are:-

“Highly culpable standard of driving at time of offence:

(a) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol ranging from a couple of drinks to a ‘motorised pub crawl’;

(b) greatly excessive speed, racing, competitive driving against another vehicle, ‘showing off’;

(c) disregard of warnings from fellow passengers;

(d) a prolonged, persistent and deliberate course of very bad driving;

(e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);

(f) driving while the driver’s attention is avoidably distracted, eg. by reading or by use of a mobile phone (especially if hand-held);

(g) driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills;

(h) driving when knowingly deprived of adequate sleep or rest;

(i) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.

Driving habitually below acceptable standard:

(j) other offences committed at the same time, such as driving without ever having a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;

(k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving.”

24.The above observations are adopted by the Court of Appeal in Hong Kong in Secretary for Justice v Poon Wing Kay & Ors [2007] 1 HKC 289.

25.In the case here, from the agreed summary of facts, no doubt that the defendant had been engaged in a prolonged, persistent and deliberate course of very bad driving. 

26.During his escape from apprehension by police officers, his driving was so dangerous and irresponsible that he collided with two other vehicles, one of which was a head-on collision, resulting in damages to these vehicles.  He also drove his vehicle at different times in opposite directions. 

27.Further, his car rammed into a metal pole outside a car park and his driving also caused fear in a police officer in close vicinity that he had to draw his revolver and point to the defendant’s vehicle as a precaution.  The officer also had to dodge and, as a result, sprained his ankle.

28.The defendant drove the vehicle whilst he did not ever possess a driving licence.  In fact, according to the record from the Transport Department, the defendant had never been issued a driving licence. 

29.Considering all of the above, this piece of dangerous driving was the most serious type, save that, luckily for all, the police officer was not severely injured, there was no fatality and the resulting property damage was not very serious or extensive.

30.Before sentencing, this court has considered all submission and mitigation, legal authorities advanced, including that of the mitigation letters.

31.The appropriate sentencing starting point for this offence in the circumstances of this case is 2 years and 9 months’ imprisonment. 

32.The defendant says that he committed the present offence because he was afraid of being arrested.  This is not a valid mitigating factor.

33.The criminal record of the defendant again is not impressive.  The family of the defendant say they are supportive of the defendant in turning a new leaf but it is a fact that, since the year 2008, the defendant had been transgressing the law and there were altogether already eight court appearances.  His family had failed in the past to put him on the right track on each of these occasions. 

34.The only valid mitigating factor in this case is the defendant’s guilty plea, of which he is entitled to full one-third sentencing discount.

35.Accordingly, the defendant is sentenced to 22 months’ imprisonment for this offence.

2^nd charge

36.On the first conviction of this offence, a person is liable to a fine of $5,000 and to imprisonment for 3 months. 

37.This is the first conviction of the defendant and this court finds the appropriate sentencing starting point is 9 weeks’ imprisonment.

38.The defendant is afforded one-third sentencing discount by reason of his guilty plea and is accordingly sentenced to 6 weeks’ imprisonment for this offence.

39.This court has already taken into consideration the fact that he drove without a valid licence at the time of the conviction of the first offence.  This court now orders that the 6 weeks’ imprisonment sentence for the 2^nd charge is to run wholly concurrent to the sentence in the 1^st charge.

3^rd charge

40.A person convicted of this offence is liable to a fine of 10,000 and to imprisonment for 12 months. 

41.This is the first conviction of the defendant. Considering the driving manner of the defendant at the time of offence, the risk posed to other road-users and property around, this court finds that the appropriate sentencing starting point for the offence is 9 months’ imprisonment.

42.The defendant is afforded one-third sentencing discount by reason of his guilty plea.

43.Accordingly, he is sentenced to 6 months’ imprisonment for this charge.

44.Again, as this court has taken into consideration the fact that the defendant drove the vehicle at the time without third party insurance, in sentencing consideration of the 1^st charge, this court now orders that the sentence for the 3^rd charge shall also run wholly concurrent to the sentence in the 1^st charge.

45.Defence counsel did urge this court to consider ordering part of the sentence in the present case to run concurrent to the sentence in the handling of stolen goods case, ie DCCC 454/2018, DCCC654/2018 and DCCC774/2018 (consolidated cases).

46.Firstly, the present offences and that of handling stolen goods are of entirely different nature.

47.Secondly, the date of commission of offences in this case are about five months apart from the date of offence in the other case.

48.Thirdly, there is no connection between the commission of the present offences and that of the handling of stolen goods offence, save that it is said by the defence that one of the intentions of the defendant was to evade apprehension by police and to make sure that his commission of the handling of stolen goods case is not discovered by the police.

49.This court therefore does not find it appropriate that sentence passed in this case shall run partly concurrent with the sentence in the previous case.

50.Commission of the offences by the defendant in the former case, ie the handling of stolen goods case, cannot be regarded as offences in the same group or series of similar offences[1]. 

51.However, treating the sentencing of the two cases as if they were heard at the same time and considering the totality principle, this court finds the summation of sentence imposed in the two cases should be slightly adjusted, so that a just and proportionate sentence be pronounced in this case to reflect the overall culpability of the defendant in the two cases, and, for this reason, 2 months’ imprisonment of the sentence imposed in our present case is to run concurrent with the sentence in the consolidated cases of DCCC454/2018, DCCC654/2018 and DCCC774/2018  and 20 months’ imprisonment imposed in the present case is to run consecutive to the sentence in that case.

Disqualifications

1^st charge

52.On first conviction of the 1^st charged offence, the court shall order that the defendant be disqualified for a period of not less than 6 months, unless the court for special reasons orders otherwise.

53.This court does not find any special reasons in this case and now orders that the defendant be disqualified from holding or obtaining driving licence of any class for 3 years.

3^rd charge

54.On conviction of this charge, the court shall, unless for special reasons thinks fit to order otherwise, order that the defendant be disqualified from holding or obtaining a driving licence of a vehicle for such period as the court may determine, being not less than 12 months or more than 3 years from date of conviction.

55.There is no special reason in this case and, accordingly, this court now orders that the defendant be disqualified from holding or obtaining driving licence of any class for 3 years.

56.This disqualification order shall run concurrent with the disqualification order made pursuant to conviction of the 1^st charge.