HKSAR v. Ngan Tin Hung (also known as Ngai Tin Hung)

DCCC 750/2019

[2021] HKDC 382

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 750 OF 2019

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REASONS FOR SENTENCE

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1.D1 pleads guilty to three charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1, 9 & 10)); one charge of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance[2] (charge 2); one charge of possession of a prohibited weapon, contrary to section 4 of the Weapons Ordinance[3] (charge 3); one charge of using a registration mark on a vehicle with intent to deceive, contrary to section 111 of the Road Traffic Ordinance (charge 5); one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance (charge 6); one charge of driving an unlicensed vehicle, contrary to section 52 of the Road Traffic Ordinance (charge 7); one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[4] (charge 8); one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance (charge 12); one charge of making off without payment, contrary to section 18C of the Theft Ordinance (charge 13) and one charge of assaulting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance[5] (charge 14)[6].

2.Between 20 March 2019 and 23 May 2019 the defendant committed twelve offences.  Full details of the offences are set out in the re-amended summary of facts admitted by the defendant today and summarised below. 

Theft and dangerous driving (charges 1 & 2)

3.At around 1350 hours on 21 May 2019 Ms Ou, who was driving her car US 9863, stopped in layby near the Esso Petrol Station on Tai Po Tai Wo Road.  Ms Ou alighted from the car to hand a mobile phone to her husband, Mr Ngai, who was driving his own car TV 1051 and had also stopped at the layby.

4.As Ms Ou handed over the phone to Mr Ngai she saw the defendant by the front passenger seat of her car holding her handbag.  The handbag contained Ms Ou’s wallet, her Hong Kong identity card; her Home Visit Permit; her smartphone; her Octopus card; two bank cards and HKD10,260 and RMB 510 cash.

5.Ms Ou shouted for help and chased after the defendant.  After about ten meters the defendant boarded a private car bearing number plates with the registration mark LD 9920. Ms Ou ran to the driver’s door to try stop the defendant from leaving.  On seeing her handbag in the car Ms Ou yelled asking the defendant to return her handbag.  The defendant ignored Ms Ou and started the car.  

6.Ms Ou got into the driver’s seat and tried to step on the brakes but the defendant drove away.  Ms Ou held onto the steering wheel with her right leg outside the car.  The defendant drove along Tai Po Tai Wo Road.  After around ten seconds the defendant accelerated at which time Ms Ou managed to get her right leg inside the car.

7.Ms Ou kept yelling at the defendant to stop.  After about thirty meters the defendant stopped at which time Mr Ngai stopped his car in front of LD 9920.  A few seconds later the defendant suddenly accelerated and hit Mr Ngai’s car and came to a halt.   

8.Mr Ngai alighted and approached LD 9920.  Mr Ngai removed the ignition key and retrieved Ms Ou’s handbag who then alighted from the car.  Suddenly the defendant fled from the front passenger door. 

9.Mr Ngai chased after the defendant shouting out stealing.  With the assistance of two passers-by and a security guard the defendant was subdued and the police called.  Under caution the defendant admitted stealing the handbag because he had no money.

10.Ms Ou sustained abrasions on her right leg and left knee.  Mr Ngai suffered from bruises on his right arm and abrasions on one of his fingers and his bottom.  The cost of repair of Mr Ngai’s car was $50,000.  Photographs of the final position of the cars have been submitted to court.

Possession of a prohibited weapon (charge 3)

11.The police found on the ground beside LD 9920 a bag inside which was an extendable baton.  Forensic scientist Dr Ng examined the baton and confirmed the baton was a gravity-operated steel baton.  I have viewed the extendable baton in court.

12.Under caution and in a video recorded interview the defendant stated that he kept the baton to prevent being assaulted because he earlier had disputes with someone and had been assaulted[7].

Using a registration mark on a vehicle with intent to deceive (charge 5)

13.Investigation revealed that the number plates bearing the registration mark LD 9920 were false and that the correct registration mark of the car was TY 3859[8].

14.LD 9920 belonged to a car owned by Mr Chui on which the genuine number plates were all along attached to his car.

15.Under caution and in a video recorded interview, the defendant stated that he had the number plates made which he used on the car because the licence had expired and he wanted to avoid traffic prosecution[9].

Driving without a valid driving licence; driving an unlicensed vehicle; and using a motor vehicle without third party insurance (charges 6, 7 & 8)

16.Transport Department records show that both the vehicle licence and the insurance coverage of TV 3859 had expired and that the defendant only held a learner’s driving licence which expired in 2004[10]. 

17.Ms Kayo Chan purchased TY 3859 on 7 March 2019.  Ms Chan, who did not have a driving licence, gave one of the car keys to the defendant to arrange the licensing and insurance of the car.  Ms Chan did not know that the defendant failed to licence and insure the car and did not know the defendant did not have a driving licence[11].

18.Under caution and in a video recorded interview, the defendant admitted the vehicle licence had expired; he drove without a licence and he did not buy any insurance for the car[12].

Theft of vehicle licence (charge 9)

19.In the evening of 20 March 2019 when Ms Mok parked her car TJ 4035 outside Flora Plaza, Lui Ming Road in Fanling she forgot to close the windows.  The next morning, Ms Mok discovered that the vehicle licence was missing.  The vehicle licence number was 02702375.

20.The vehicle licence attached to the windscreen of LD 9920 was also false.  Examination of the vehicle licence revealed that two documents had been stuck together including the vehicle licence stolen from TJ 4035, parts of which had been cut out.  Photographs showing the false licence have been submitted to court[13].

21.In a video recorded interview, the defendant admitted that he stole the vehicle licence from a car near Flora Plaza and placed the vehicle licence under the false licence to make the false licence look more authentic.

Theft (charge 10)

22.At around 1930 hours on 16 April 2019 Mr Ng parked a private car bearing testing plates T13938 outside Yan Fai House in Fanling.  The next day Mr Ng discovered the testing plates were missing.

23. In a video recorded interview, the defendant admitted stealing the testing plates but disposed of them because they were not useful.

Burglary (charge 12)

24.Inside the glovebox of LD 9920 the police found a smartphone. The phone’s case contained the Hong Kong Identity card of Ms Ng.

25.Ms Ng resided at the front portion, 4th Floor, No. 58 San Fung Avenue in Sheung Shui.  At around 0920 hours on 18 May 2019 the defendant asked whether Ms Ng’s residence was a brothel.  When Ms Ng said no the defendant left.  Shortly afterwards Ms Ng discovered that her smartphone, which had been placed on a tea table inside her home near the entrance, was missing.

26.Under caution and in a video recorded interview, the defendant admitted he went to Ms Ng’s residence looking for a prostitute and that when he was leaving he stole the smartphone[14].

Making off without payment (charge 13)

27.At around 1130 hours on 19 May 2019 LD 9920 filled petrol at the Sinopec petrol station on Yat Ming Road in Fanling.  The defendant left without paying for the petrol in the sum of $800.90.

28.Under caution and in a video recorded interview, the defendant said he did not have enough money to pay for the petrol and left without paying[15].

Assaulting a police officer (charge 14)

29.After the defendant was arrested he was admitted to bed 20, Ward E2 of the Alice Ho Miu Ling Nethersole Hospital in Tai Po.  On 23 May 2019 PC 24378 and PC 22907 were on duty guarding the defendant.  The officers were instructed that the approval of the OC Case must be sought before allowing any visitor to see the defendant. 

30.The defendant’s hands were restrained by a chain.  At around 1646 hours when PC 22907 went to the washroom PC 24378 unlocked one side of the defendant’s restraint chain and locked it onto the bed. 

31.At 1655 hours a visitor came to see the defendant but was stopped by PC 24378.  When PC 24378 tried to contact the OC case to seek his approval the defendant became agitated and started shouting and swearing. 

32.The defendant started to pull his restraint chain which was attached to the bed. When PC 24378 tried to control the defendant, the defendant spat on PC 24378’s nose and kicked his stomach three times.  When PC 24378 attempted to handcuff the defendant the defendant used his head to bump against PC 24378’s forehead and chin.  The defendant was eventually subdued.

33.PC 23478 sustained an abrasion on his right forearm and had tenderness on the chin and upper abdomen.

Mitigation

34.In passing sentence, I have carefully considered the oral and written submissions of Mr Chan, including that the defendant is 45, divorced and now lives with his girlfriend.  Mr Chan says the defendant now needs crutches to walk[16]. I note in court today the defendant is using a walking stick.

Sentence

Theft and dangerous driving (charges 1 & 2)

35.I have considered the Reasons for Sentence in HKSAR v Mau Fu Pong referred to the court by Mr Chan suffice to say that each case is decided on its own facts and circumstances[17].

Theft

36.I am satisfied a starting point of 12 months’ imprisonment is appropriate for theft of a handbag from an unattended vehicle[18].

Persistent offender

37.A starting point may be increased where the defendant is a persistent offender.  The defendant has appeared in court on thirty occasions since 1990 amassing a total of fifty-six convictions.  Twenty- six convictions are for offences of dishonesty, including eighteen offences of theft.  The last conviction for theft was in 2017 when the defendant was sentenced to 8 months’ imprisonment[19].

38.I am satisfied the defendant is a persistent offender and enhance the starting point by 3 months to 1 year and 3 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 10 months’ imprisonment.

Dangerous driving

39.In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[20]. These factors were revised in R v Cooksley[21]. 

40.Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender[22].

41.This principle was repeated in Secretary for Justice v Lau Sin Ting where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[23].

Aggravating features

42.The aggravating features in this case include that the defendant drove dangerously to avoid apprehension and Ms Ou recovering her handbag; although Mr Ngai had stopped his car in front the defendant rammed into the car in attempt to escape causing significant damage to the car; the defendant was driving without a valid licence, the only licence the defendant held being an expired learner’s licence and the defendant had no third-party insurance.  

43.The degree of seriousness depends on the precise circumstances of the driving.  In Poon Wing Kay the court said that one major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or with a degree of recklessness.   Whilst the case is not as serious as Poon Wing Kay the defendant showed a selfish disregard for the safety of Ms Ou.  

44.Driving in this manner put Ms Ou at risk of serious injury, which risk was foreseeable.  Fortunately, Ms Ou did not sustain serious injury and has fully recovered from her injuries. 

45.I am satisfied the proper starting point after trial is 1 year and 6 months’ imprisonment. Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months’ imprisonment.

Disqualification

46.There is mandatory disqualification for dangerous driving unless the court for special reasons decides not to make such an order.  I find no special reasons not to disqualify the defendant. 

47.I am satisfied taking into account the circumstances of the driving that a period of 2 years’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years.   

48.By virtue of section 72A (1A) of the Road Traffic Ordinance a court shall order a person convicted of dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  The traffic record reveals the defendant has never obtained a full driving licence and therefore must first pass a test of competence to drive a motor vehicle before obtaining a probationary driving licence.  In these circumstances I am satisfied there are special reasons not to order the defendant to attend and complete a driving improvement course.

Possession of a prohibited weapon (charge 3)

49.Mr Chan submits that there is no evidence showing that the defendant used or attempted to use the extendable baton[24]. The circumstances of the finding of the extendable baton in a bag carried by the defendant suggests a real risk of the baton being used for an unlawful purpose.  Furthermore, weapons of this kind are capable of being carried in a concealed manner and inflicting serious injury.

50.I am satisfied the proper starting point after trial is 12 months’ imprisonment. Giving the defendant full credit for his plea of guilty reduces the sentence to 8 months’ imprisonment[25].

Using a registration mark on a vehicle with intent to deceive; driving without a valid driving licence; driving an unlicensed vehicle; and using a motor vehicle without third party insurance (charges 5, 6, 7 & 8)

51.Since 2011 the defendant has one conviction for an offence contrary to section 111 of the Road Traffic Ordinance; four convictions for driving without a valid driving licence; two convictions for driving an unlicensed vehicle and four convictions for using a motor vehicle without third party insurance. 

52.I also note that at the time of his arrest the defendant was already under investigation for using a motor vehicle without third party insurance, driving an unlicensed vehicle and driving whilst disqualified[26]. 

53.I regard the use of false plates to avoid detection as a serious offence.  I am satisfied a starting point of 9 months’ imprisonment is appropriate for a second offence.  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 5 to 6 months’ imprisonment. 

54.I am satisfied a starting point of 4½ months’ imprisonment is appropriate for a fifth offence of driving without a valid driving licence and 3 months’ imprisonment for a third offence of driving an unlicensed vehicle.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 6 to 3 months’ imprisonment and on charge 7 to 2 months’ imprisonment. 

55.Driving without insurance places all other road users at risk. This is more so considering that the defendant has never passed a test of competence to drive a motor vehicle.  I am satisfied a starting point after trial of 9 months’ imprisonment is appropriate for a fifth offence of using a vehicle without third party insurance.  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 8 to 6 months’ imprisonment. 

Disqualification

56.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 3 years from the date of conviction.  Again I find no special reasons not to disqualify the defendant.

57.I am satisfied a period of 2 years’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period 2 years. 

Theft of vehicle licence (charge 9)

58.I am satisfied that a starting point of 3 months’ imprisonment is appropriate for the theft of the vehicle licence which the defendant used on LD 9920.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment.

Theft of testing plates (charge 10)

59.I am satisfied that a starting point of 3 months’ imprisonment is also appropriate for the theft of the testing plates.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment.

Burglary (charge 12)

60.Whilst I have good deal of scepticism that the defendant was looking for a prostitute rather than using this as an excuse to try enter the flat, I proceed on the basis this was an opportunistic offence and that the defendant never went inside the flat only stretching his hand inside and took the mobile phone without Ms Ng realising. 

61.The facts are however very different to the facts in HKSAR v Cheung To Ming cited by Mr Chan, not least the premises in that case was the Mai Po Marshes Wildlife Education Centre and not domestic premises and only two packets of instant noodles were stolen not a mobile phone[27].

62.I am satisfied that a starting point of 2 years’ imprisonment is appropriate.  Although as noted earlier the defendant has committed eighteen offences of theft, the last in 2017, taking into account the last time the defendant committed burglary was in 2004 I do not enhance the starting point.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 4 months’ imprisonment.

Making off without payment (charge 13)

63.Taking into account that the total amount unpaid was just over $800, I am satisfied the proper starting point after trial is 3 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment.

Assaulting a police officer (charge 14)

64.Assaulting a police officer is a serious offence which attracts a sentence of immediate imprisonment.  Mr Chan submits the defendant acted in the heat of the moment and not in the course of committing other crimes or fleeing from the scene of crime[28].

65.Notwithstanding the defendant acted in an emotional state and was restrained the assault was persistent including spitting on PC 24378.   Taking into account the only injury sustained by PC 24378 was an abrasion on his forearm and that this is not the first time the defendant has been convicted of assaulting a police officer having been convicted of resisting arrest in 2004 and assaulting a police officer in 2008, I am satisfied a starting point of 4½ months’ imprisonment is appropriate. 

66.Giving the defendant full credit for his plea of guilty reduces the sentence to 3 months’ imprisonment.

Totality

67.Mr Chan submits that charges 1-3 and 5-8 happened/were discovered on the same date and therefore the sentence for these charges could be made mostly, if not wholly concurrent[29]. With respect this submission overlooks the seriousness of the offences and that most of the offences are separate and distinct even if committed or discovered on the same day.

Theft and dangerous driving (charges 1 & 2)

68.The dangerous driving was committed to avoid apprehension for the theft and is therefore separate and distinct.  I am satisfied wholly consecutive sentences are appropriate.  I am satisfied that a total sentence of 1 year and 10 months’ imprisonment properly reflects the defendant’s criminal culpability on the two charges.  

Possession of a prohibited weapon (charge 3)

69.Possession of a prohibited weapon is a separate and distinct offence which adds to the culpability of the defendant.  A consecutive sentence is appropriate.  I am satisfied that 4 months’ imprisonment is to be made consecutive to charges 1 & 2 and 4 months concurrent making a total of 2 years and 2 months’ imprisonment which I am satisfied properly reflects the defendant’s criminal culpability on charges 1, 2 & 3.

Using a registration mark on a vehicle with intent to deceive (charge 5)

70.This charge relates to the defendant seeking to avoid traffic prosecution and is therefore separate and distinct from charges 1, 2 & 3 and adds to the culpability of the defendant.  A consecutive sentence is appropriate.  I am satisfied that 2 months’ imprisonment is to be made consecutive to charges 1, 2 & 3 and 4 months concurrent making a total of 2 years and 4 months’ imprisonment which I am satisfied properly reflects the defendant’s criminal culpability on charges 1, 2, 3 & 5.

Driving without a valid driving licence; driving an unlicensed vehicle; and using a motor vehicle without third party insurance (charges 6, 7 & 8)

71.I am satisfied these three offences are interrelated for which concurrent sentences are appropriate and are interrelated to charges 2 & 5.   I order the sentence on charges 6, 7 & 8 to be served concurrent to charges 1, 2, 3 & 5. 

Theft of vehicle licence (charge 9)

72.Although the stolen vehicle licence was used on LD 9920 the theft of the vehicle licence is a separate and distinct offence which adds to the culpability of the defendant.  I am satisfied that 1 month imprisonment is to be made consecutive to charges 1, 2, 3, 5, 6, 7 & 8 and 1 month concurrent making a total of 2 years and 5 months’ imprisonment which I am satisfied properly reflects the defendant’s criminal culpability on charges 1, 2, 3, 5, 6, 7, 8 & 9.

Theft of testing plates (charge 10)

73.Similarly, the theft of the testing plates is a separate and distinct offence which adds to the culpability of the defendant.  I am satisfied that 1 month imprisonment is to be made consecutive to charges 1, 2, 3, 5, 6, 7, 8 & 9 and 1 month concurrent making a total of 2 years and 6 months’ imprisonment which I am satisfied properly reflects the defendant’s criminal culpability on charges 1, 2, 3, 5, 6, 7, 8, 9 & 10.

Burglary (charge 12)

74.The burglary is a separate and distinct offence which adds to the culpability of the defendant.  I am satisfied that 6 months’ imprisonment is to be made consecutive to charges 1, 2, 3, 5, 6, 7, 8, 9 & 10 and 10 months concurrent making a total of 3 years’ imprisonment which I am satisfied properly reflects the defendant’s criminal culpability on charges 1, 2, 3, 5, 6, 7, 8, 9, 10 & 12.

Making off without payment (charge 13)

75.This offence is also a separate and distinct offence which adds to the culpability of the defendant.  I am satisfied that 1 month imprisonment is to be made consecutive to charges 1, 2, 3, 5, 6, 7, 8, 9, 10 & 12 and 1 month concurrent making a total of 3 years and 1 month imprisonment which I am satisfied properly reflects the defendant’s criminal culpability on charges 1, 2, 3, 5, 6, 7, 8, 9, 10, 12 & 13.

Assaulting a police officer (charge 14)

76.Assaulting a police officer is also a separate and distinct offence which adds to the culpability of the defendant.  I am satisfied a wholly consecutive sentence is appropriate making a total of 3 years and 4 months’ imprisonment which I am satisfied properly reflects the defendant’s criminality on the twelve charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[30].  

Injury

77.Mr Chan informs the court that the defendant fractured his pelvis when he was involved in a traffic accident which was the subject of the summonses FLS 4846/2019, FLS 4847/2019 & FLS 4848/2019[31]. Mr Chan says at first the defendant made good progress in recovering from his injuries and was able to walk, however the injuries were aggravated as a result of crashing into Mr Ngai’s car.   The defendant now needs to use a walking stick.

78.Whilst sympathetic to anyone with serious injury the defendant has brought this misfortune upon himself by driving when he was not only disqualified from driving but had never passed a driving test.  I find no grounds to reduce the sentence on any charge or the total sentence to be served by the defendant.

79.The defendant is convicted and sentenced as follows:

Charge 1 - 10 months’ imprisonment;

Charge 2 – 12 months’ imprisonment consecutive to charge 1; and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years;

Charge 3 – 8 months’ imprisonment with 4 months consecutive and 4 months concurrent to charges 1 & 2;

Charge 5 - 6 months’ imprisonment with 2 months consecutive and 4 months concurrent to charges 1, 2 & 3;

Charge 6 - 3 months’ imprisonment concurrent to charges 1, 2, 3 & 5;

Charge 7 - 2 months’ imprisonment concurrent to charges 1, 2, 3, 5 & 6;

Charge 8 - 6 months’ imprisonment concurrent to charges 1, 2, 3, 5, 6 & 7 and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period 2 years;

Charge 9 - 2 months’ imprisonment with 1 month consecutive and 1 month concurrent to charges 1, 2, 3, 5, 6, 7 & 8.

Charge 10 - 2 months’ imprisonment with 1 month consecutive and 1 month concurrent to charges 1, 2, 3, 5, 6, 7, 8 & 9.

Charge 12 - 16 months’ imprisonment with 6 months consecutive and 10 months concurrent to charges 1, 2, 3, 5, 6, 7, 8, 9 & 10.

Charge 13 - 2 months’ imprisonment with 1 month consecutive and 1 month concurrent to charges 1, 2, 3, 5, 6, 7, 8, 9, 10 & 12.

Charge 14 - 3 months’ imprisonment consecutive to charges 1, 2, 3, 5, 6, 7, 8, 9, 10, 12 & 13.

80.The total sentence to be served by the defendant is 3 years and 4 months’ imprisonment. 

Disqualification

81.The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years for dangerous driving (charge 2).

82.On 24 June 2019 the defendant was disqualified from driving for a period of 3 years for offences of driving whilst disqualified and driving without insurance[32].  That disqualification expires on 23 June 2022.

83.I am satisfied the disqualification for dangerous driving is to be made consecutive to the current disqualification.  This means that the defendant is disqualified until 23 June 2024.

84.The defendant is also disqualified for a period of 2 years for using a motor vehicle without third party insurance (charge 8).  Section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance provides that disqualification is from the date of conviction. 

85.The disqualification will therefore expire on 16 March 2023 prior to the expiry of the disqualification ordered for the dangerous driving.