HKSAR v. Yip Ching Yin

DCCC 49/2021

[2021] HKDC 548

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 49 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleaded guilty to the following charges and full details of the offences are set out in the facts admitted by the defendant:-

1^st Charge - Dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374;

2^nd Charge - Driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374;

3^rd Charge - 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, and

4^th Charge - Failing to display a valid vehicle licence, contrary to regulations 25(1) and 60(3) of the Road Traffic (Regulation and Licensing of Vehicles) Regulations, Cap 374E.

Summary of Facts

2.At around 10:36 am on 18 June 2020, the defendant was driving a private car with vehicle registration number TZ409 (hereinafter called “V1”) northbound on Tsing Kwai Highway.

3.The defendant was driving initially at a speed of 99.52 km/h on a section of the road where the speed limit was 80 km/h.

4.Seeing that the defendant was driving over the speed limit, police officers on police car bearing vehicle registration number AM8074 (hereinafter called “the police vehicle”) closed in on V1 and PC 19708 used the loudhailer to command the defendant to stop V1 and pull over to the hard shoulder on the highway.

5.When the defendant refused to stop, SPC 33179 activated the beacon lights and siren of the police vehicle while PC 19708 repeatedly demanded the defendant to stop V1 using the loudhailer.

6.At one point, the defendant finally stopped V1 on a hazard warning area of the highway.  When SPC 33179 alighted the police vehicle and approached V1 on foot, V1 suddenly accelerated at a high speed towards the slip road on the highway to evade the police.

7.V1’s speed was at least 130 km/h on a section of the slip road where the speed limit was 50 km/h.  Police gave chase on the police vehicle, with the speed of the police vehicle peaking at more than 150 km/h at one point.

8.The pursuit lasted for around 30 seconds, covering a length of 790 m, during which V1 swerved left and right into the hard shoulder lane and a hazard warning area respectively in an attempt to overtake a medium goods vehicle (hereinafter called the “MGV”) in front.

9.V1 ultimately collided with the offside rear of the MGV and came to a halt.  Upon command, the defendant alighted from V1 and was arrested there and then.  The entire events of speeding, evasion, pursuit, collision and eventual arrest of the defendant, were all clearly captured by the front and rear dashcam on V1 and the “Provida” camcorder on the police vehicle.

10.At all material times, the defendant drove V1 while being disqualified from holding or obtaining a driving licence, and he also drove V1 without any third party risk insurance and with no valid vehicle licence displayed thereon.

Criminal record and background of the defendant

11.The defendant was born in Hong Kong and is now 29 years old.  He attained Form 7 education in Hong Kong and prior to his arrest, he worked as a Construction consultant earning HK$15,000 per month.  His mother left the family in 2018 and is no longer in contact with the defendant or with his father.

12.The defendant’s father resides with his step-mother and 2 younger sisters in public housing comprising of a tenement of about 200 feet.  The defendant and his girlfriend live in rented room in hotel/motel for convenience.

13.I was told that the defendant’s father is handicapped, he does not have the left forearm and he and his family live on public assistance fund provided by the Government.  

14.The defendant has held a driving license since 2013.  He had 6 fixed penalty records, 4 of them related to failing to display valid licence, one of them related to speeding by less than 30 kph and one careless driving conviction in 2015.

15.The defendant also had 4 criminal records with one similar offence of dangerous driving in 2019.

Mitigation

16.Counsel for the defendant, Ms Moosdeen submitted that the defendant is remorseful and had cooperated after arrest and she emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

17.She further submitted that on the day of the incident the defendant drove the subject vehicle with the intention to check out the condition of the vehicle before confirmation to purchase it second-hand from the owner of the vehicle.

18.The defendant thought this was a chance opportunity to come across this Audi AT which was offered for sale for the price of HK$100,000, and he had been looking for this model second-hand for quite some time.

19.Ms Moosdeen submitted that as the previous driving disqualification period ended on or about 11 March 2020, the defendant believed that it was complete even if he had to attend driving improvement course which would take a day for it and he would then be able to drive again.

20.Ms Moosdeen further submitted that before the defendant made up his mind to purchase, he felt he had to test the efficiency of the vehicle.  The defendant is regretful and very sorry to have committed such a foolish act.

21.Ms Moosdeen stated that at the relevant time the sound proof of the said vehicle was very good and the air-conditioner inside the vehicle was switched on.  The defendant did not and could not hear that the police siren was on from the beginning of chase by the police.  The defendant did and attempted to drive away due to his sudden decision and reaction out of fear and folly of trying to get away.

22.At the beginning he did not see the police vehicle and when he saw it he became scared and drove on until eventually he came to a halt.

23.The defendant admits his previous conviction record.  He was convicted of dangerous driving on or about 10 September 2019.  He recalled that at the material time he was driving along Canton Road.  In the vicinity of Yu Cheung Road there was a construction site for the High Speed Train, there was a detour route and he had a light collision with a taxi there.  He was fined and disqualified from driving for 6 months.

24.For the present case, Ms Moosdeen submitted that no one was injured in the incident.  The defendant ran away because he was scared as he had not completed the driving improvement course.  The defendant was not engaged in furious or rage driving nor did he ever join in car racing at any time.

25.Ms Moosdeen also submitted a mitigation letter to the court for the court’s consideration.  In the letter, the defendant stated that he is very sorry and remorseful for what he did.

26.Ms Moosdeen also submitted the following cases, namely:-

- Secretary of Justice v Ko Wai Kit Paul CAAR 12/2001

- HKSAR v Jim Chong Shing CACC 186/2003

- HKSAR v Pang Ho Yin CACC 283/2013

- HKSAR v Wong Chun Wai CACC 358/2017

- HKSAR v Chan Chi Man CACC 262/2018

Sentence

27.For the 1^st charge, Ms Moosdeen has referred me to five cases for comparison of sentences for dangerous driving.

28.In sentencing the defendant, I have carefully considered the facts admitted by the defendant, all that has been put forward in mitigation by Ms Moosdeen on behalf of the defendant, as well as the contents of the letter seeking leniency and cases that Ms Moosdeen had referred me to.

29.Before sentence, I had also watched the relevant footages of the dashcam of V1 and the “Provida” camcorder of the Police vehicle.

30.For the 1^st charge, there is no tariff.  However in R v Cooksley and Others [2004] 1 Cr App R (S) 1, a case of dangerous driving causing death, the English Court of Appeal identified a non-exhaustive list of factors relevant to sentence (at p 3 H7) as follows:-

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 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 held 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

(My emphasis underlined d, j, and k)

31.The court stated as a reminder as follows:-

It was important to appreciate that the significance of the factors could differ. There could be a case with three or more aggravating factors, which were not as serious as a case providing a bad example of one factor.

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

33.I regard other aggravating factors as follows which are present from the facts before me:-

(a)  Failing to comply with police instruction to stop and park;

(b)  Excessive speeding for at least around 30 seconds, covering a length of 790 m and deliberate attempts to evade the police, and

(c)  Attempt to overtake a medium goods vehicle at excessive speed resulting in its collision with the offside rear of the medium goods vehicle before V1 stopped.

34.The statutory maximum sentence for dangerous driving is 3 years.  The only saving grace in the 1^st charge is the absence of any death, major injury nor substantial damage to property.

35.I shall include driving while disqualified and driving without third party insurance in the computation of the 1^st charge, as these two factors are regarded as factors in aggravation of sentence according to Cooksley (above).

36.The case was committed in the morning on a weekday on a highway with moderate traffic.  My view is that the defendant’s way of driving was a very bad and irresponsible type of dangerous driving, and his persistently irresponsible driving manner, his driving while disqualified (the subject-matter of 2^nd charge) and driving without third party insurance (the subject-matter of 3^rd charge) are matters of sufficient gravity for me to adopt a starting point of 2 years in relation to the 1^st charge.

37.It is obvious that the defendant committed a flagrant breach of a disqualification order for the 2^nd charge, and for the 3^rd charge, the defendant deprived all potential victims of adequate financial protection, particularly when he drove the vehicle in such a dangerous manner.

38.For each of Charge 2 and 3, a custodial sentence is appropriate where there is a “flagrant” or a “blatant” breach.  The only mitigating factor is the timely plea of guilty.  After the one-third discount, the sentence is 16 months for the 1^st charge. 

39.The circumstances of the 1^st charge already canvass the 2^nd charge and the 3^rd charge, and to spell out their individual computations.  Each of Charges 2 and 3 warrants a basic starting point of 3 months.  I give a one-third discount for his timely pleas of guilty.  The sentence is 2 months for each of Charges 2 and 3 and to be run concurrently with the 1^st charge.

40.As to the 4^th charge, the maximum penalty for a regulation 25(1) offence is on conviction to a fine at level 1 and to imprisonment for 3 months.  I take a starting point of 3 weeks’ imprisonment which is reduced to 2 weeks after 1/3 discount due to his guilty plea, and I order that this sentence to be run concurrently with the 1^st charge.

41.As such, the total sentence imposed on the defendant for all the four counts he pleaded guilty to is one of 16 months’ imprisonment.

Disqualification Order

42.For the 1^st charge, there is mandatory disqualification of not less than 2 years in the case of a second or subsequent conviction unless the court for special reasons orders that the person to be disqualified for a shorter period or that the person not be disqualified.  The Ordinance also provides that the court shall also order that the person attend and complete a driving improvement course.

43.For the 2^nd charge, under section 44(2), there is mandatory disqualification of not less than 12 months in the case of a first conviction unless the court for special reasons orders that the person to be disqualified for a shorter period or that the person not be disqualified.

44.For the 3^rd charge, under section 4(2)(a), there is mandatory disqualification of not less than 12 months nor more than 3 years from the date of conviction unless the court for special reasons thinks fit to order otherwise.

45.I can see no special reasons not to disqualify the defendant.  I now order him to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 2 years for the 1^st charge and 12 months for the 3^rd charge to be run from today and concurrently with each other.

46.I also order his disqualification for 12 months under the 2^nd charge.  Section 44(3) of the Road Traffic Ordinance provides that the disqualification period shall be in addition to any other period of disqualification ordered under any other provision of the same ordinance.  Hence, the 12 months’ disqualification period herein ordered shall commence after the disqualification period for the 1^st charge.

47.The total disqualification period is therefore 3 years from the date of sentence.

48.I also make an order under section 72A(1A) of the Road Traffic Ordinance, Cap 374, there being no special reasons against the making of an order, that he must at his own expense attend and complete a driving improvement course within the last three months of the expiration of the period of his disqualification.

49.The defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding that the disqualification period may already have ended.