HKSAR v. Wong Tsz Lam

DCCC 1028/2020

[2021] HKDC 671

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1028 OF 2020

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REASONS FOR SENTENCE

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1.The defendant is convicted of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374 (1^st charge) and using a motor vehicle which failed to display standard registration mark, contrary to regulation 8(2)(c) and 60(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap 374E (2^nd charge) on his own plea and agreement to summary of facts.

Facts

2.On 5 July 2020, police officers PW1 and PW2 were on board an unmarked police vehicle with a mobile speed enforcement and in-car surveillance system “ProVida 2000” installed.  At 0127 hours, they spotted a private vehicle, registration mark TT 306 (“O/V”), driving along San Tin Highway in an excessive speed (168 (±6) km/h). 

3.PW1 and PW2 followed the O/V and observed that it was kept driven at a high speed.  At 0133 hours, PW1 and PW2 switched on the siren and beacon, and directed the O/V to stop but in vain.  O/V accelerated and fled.

4.PW1 and PW2 gave chase to O/V along San Tin Highway, Fanling Highway, Tolo Highway.  Upon reaching Tai Po Road to Shatin, two other police officers, PW3 and PW4, took over from PW1 and PW2 and gave chase to O/V on marked police vehicle (“P/V-2”) along Shatin Road, Lion Rock Tunnel Road, Lion Rock Tunnel, Waterloo Road, Boundary Street, Prince Edward Road East, Choi Hung Road, Po Kong Village Road, Hammer Hill Road, Fung Tak Road and eventually Choi Hung Road.

5.At 0146 hours, O/V arrived at Choi Hung Road junction with Yin Hing Street.  An urban taxi (“V/V-1”) driven by PW5 was on the first left lane while a medium goods vehicle (“V/V-2”) driven by PW6 was on the second left lane.  Both V/V-1 and V/V-2 were just starting to drive forward after the red traffic light turned green when O/V first collided with the rear-end of V/V-1, causing V/V-1 to rush forward for about 2 to 3 metres before coming to a stop.  O/V then changed lane and collided with the nearside front of V/V-2.  O/V finally came to a stop.

6.The defendant was located at the driver’s seat of O/V with another male sitting on the front passenger seat.  The defendant was arrested for dangerous driving. 

7.After the collision, PW5 suffered from neck, back and sprain and attended hospital for treatment.  4 days’ sick leave was recommended. 

8.The car camcorder on O/V were obtained and only a front car camcorder was installed on V/V-1.

9.Upon analysis of the car camcorder footages on O/V and ProVida 2000, it is revealed that during the escape:-

(1)  there were 23 occasions that defendant drove the O/V to cross continuous double/single white lines;

(2)  7 occasions where O/V failed to stop at red traffic lights;

(3)  2 occasions where defendant drove O/V against the traffic flow.

10.Forensic scientist of the Government Laboratory did analysis on the car camcorder footages on O/V and ProVida 2000.  He identified 12 reference points along the route taken by the O/V and concluded that during this escape defendant had maintained, between reference point L1 to L2, average speed of 189 (±19) km/h for 7 seconds, average speed of 217 (±22) km/h for 8 seconds from reference point L3 to L4, average speed of 216 (±22) km/h from reference point L5 to L6 for 8 seconds. During all these times, the speed limit imposed was 100 km/h. 

11.And the defendant also drove the O/V at an average speed of 88 (±9) km/h for 4 seconds from reference point L7 to L8 when he exited from Lion Rock Tunnel where the road marking of “SLOW” could be seen.

12.The average speed of O/V was 94 (±9) km/h for 4 seconds from reference point L9 to L10, and average speed was 138 (±14) km/h from reference point L11 to L12.  At the material times, the speed limit imposed was 50 km/h. 

13.It was also the case that the display of the registration marks and plates of O/V on the front and rear did not comply to the legal requirements as (i) the name, trademark or other means of identification of the manufacturer and specification number were not permanently marked on the registration marks plate; and (ii) additional black colour displayed on the front and rear registration plates background.

14.The O/V’s front bumper engine bonnet and both sides’ front fenders were damaged, the nearside front combination lamp lens were scratched, and the nearside front passenger seat belt was seized.

Criminal Record

15.The defendant has a clear record.  He had 3 convictions of driving in excess of speed limit by more than 15 km/h but not more than 30km/h, and 3 convictions of driving in excess of speed limit by 15 km/h or less between November 2016 to August 2020.  There is 1 conviction of failing to conform to traffic sign, signal or road markings.  There are 6 convictions of failing to display valid licence or registration mark not displayed/lit/adequately fitted, all in the year 2020.

Mitigation

16.The defendant is aged 26.  He has obtained a diploma in Yi Jin Diploma Programme after completing his secondary school education.  He was born in mainland and came to Hong Kong when he was a toddler.  His father suffered from kidney disease and defendant maintained regular phone contacts with his mother and his half-brother.  They met for dinner on occasional weekends and festive seasons. 

17.The defendant is married.  His wife is a housewife and he has two young daughters, aged 3 and 2. 

18.The defendant runs a vehicle parts trading business and earns about $30,000 per month, and is the sole breadwinner of the family.  He also contributes to his parents. 

19.The defendant obtained his driving licence in the year 2015.  It was said that although the defendant has 6 speeding records, none of them exceeded 30 km/h and the last entry was in December 2019.

20.Defence counsel submitted that as a result of the accident, there was minor damage to the taxi and the medium goods vehicle, and that the injury suffered by PW5 was slight because he was only given 4 days’ sick leave.  However, the defendant is deeply apologetic to have caused the injury to PW5 and the damages to the 2 vehicles. 

21.Defence counsel also submitted that the defendant had made the worst decision in his life by attempting to flee instead of slowing down to face the police.  He said out of fear, defendant accelerated in order to avoid the apprehension by the police as the apprehension would cause potential adverse effects to his business and family.  It is also said because of the commission of the offence, it had adversely affected the family and ruined the business he has built.  It is also said the defendant is now prepared to face a lengthy sentence of incarceration. 

22.It is submitted that shortly after the incident, the defendant stopped driving and sold his vehicle, and that his mental state deteriorated to a stage that his wife and friends realised he needed to seek medical consultation.  He therefore consulted Dr Leung Yuen Shan, a specialist in psychiatry who diagnosed him with adjustment disorder.  The defendant was treated conservatively with a prescription.

23.It is submitted that the commission of the offence was something out of character.  It is also said the defendant is now trying to fulfil his obligation as a filial son, a responsible husband and a dutiful father pending incarceration. 

24.Defence counsel referred this court to the cases of 香港特別行政區 訴 陳樂華[1], 香港特別行政區 訴 韓梓榮[2], 香港特別行政區 訴 古希哲[3], HKSAR v Wan Hing Lung[4], HKSAR v Chan Chi Man[5] and HKSAR v Sham Pui Chak[6]. 

25.Defence counsel also handed to court the psychiatric report of the defendant prepared by the said Dr Leung Yuen Shan as well as mitigation letters from the defendant, his wife and his father.

26.It is submitted that in the circumstances of this case, and in view of (i) the defendant’s psychiatric condition; (ii) offence committed purely due to a wrong decision out of fear; (iii) the minimal extent of injuries sustained and damage suffered; (iv) his good character, a term of imprisonment within the range of 18 to 24 months is appropriate. 

27.Defence counsel also submitted that the defendant has pleaded guilty at the first available opportunity, he is entitled to one-third sentencing discount and that he is determined not to reoffend and has shown genuine remorse and shock after the accident. 

28.It is further submitted that the defendant is blaming himself partly for the defendant’s wife’s miscarriage roughly 2 months after the present offence.  The defendant’s family is very supportive of the defendant.

29.In the light of the above, defence counsel urged this court to treat the defendant with leniency, in particular that the defendant was a man of good character before the incident. 

30.As for disqualification, defence counsel conceded that there are no special circumstances in this case for not imposing disqualification order against the defendant.  He referred to the case of Secretary for Justice v Hung Ling Kwok[7] where the Court of Appeal reiterated that disqualification is forward-looking and preventive rather than backward-looking and punitive. 

31.Defence counsel submitted the defendant has sold his vehicle subsequent to the incident, and has deeply reflected upon himself and learned a hard lesson from this incident.  He undertakes to exercise more caution in the future if he drives a car and it is humbly submitted that there is low risk of reoffending by the defendant.

32.It is further submitted the defendant plans to continue working in his current car-related business and is intending to start an auto repair garage in the future.  Therefore, disqualification for an excessive period will inevitably bring adverse effects to the defendant upon his release from custody. 

33.As for the 2^nd charge, the defence counsel points to the court that any contravention will render the offender liable on conviction to a fine of $2,000.

Mitigation Letters

34.The mitigation letters presented to this court mainly tell of the defendant being a good and loving father, husband, son and brother.  They also tell that the defendant and his family were under immense pressure after the offence as they were worried of the impact of the sentence on the defendant and his family as the defendant is the sole breadwinner of the family and also has been assisting the child-caring of the 2 children.  They say the defendant is deeply remorseful and would not reoffend.

35.The wife in her letter says that the defendant had abandoned the job that he loved most and not dare to be in business relating to cars.  The husband in his letter felt apologetic towards the police officer involved in the case as well as the owners and drivers of the 2 other vehicles hit by the defendant’s vehicle.

Psychiatric Report

36.Dr Leung, the psychiatrist who had interviewed the defendant for 4 hours over 2 occasions diagnosed the defendant as suffering from adjustment disorder after the incident.  The report says that the defendant was preoccupied with worries of the court case and the potential consequences. The defendant described his own acts as reckless and illogical.  He felt shameful as his wife, daughters and parents needed to bear the consequence of his reckless and impulsive act.

37.It was said that the defendant deliberately avoided car-relating information such as car magazines or car-related video clips on social media.  The defendant also suffered from initial insomnia and headache from time to time.  He feared he might not be able to continue the business of selling automobile parts because of the incident.  He felt ashamed meeting his friends but he treasured time with his family as he could not stay with them when incarcerated.

38.Dr Leung says that the chance of the defendant repeating the offence is low.

Discussion

1^st charge

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

40.In the case of R v Cooksley and Others[8], 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.

41.The observations in Cooksley are adopted by the Court of Appeal in Hong Kong in Secretary for Justice v Poon Wing Kay and another[9].

42.As agreed by the defendant in the Summary of Facts, during this escape which lasted for nearly 20 minutes, there were 23 occasions the defendant drove crossing double/single white lines, 7 occasions when he failed to stop at red traffic lights, 2 occasions when he drove against traffic flow.  There were also instances of prolonged excessive speeding, at times up to 217 (±22) km/h when the road speed limit at the place was only 100 km/h.

43.As a result of the dangerous driving of the defendant, the defendant’s vehicle collided with the taxi and the medium goods vehicle, causing damage to these vehicles.  The vehicle that the defendant was driving at the time was also damaged.  The taxi driver suffered neck and back injuries as a result and was treated in hospital, receiving 4 days’ sick leave.

44.During these 20 minutes or so, the dangerous driving of the defendant posed serious risk to all other road users in the area at the time.  There was also a passenger on board of the defendant’s own vehicle at the time who was obviously exposed to serious risks.  Luckily, actual injury to persons and damage to property in this case was relatively minor and not potentially what they could be.

45.Considering the circumstances of the case, the relevant authorities in the area and the factors for consideration in the Cooksley case, this court considers the only appropriate sentence is one of immediate custodial sentence and the sentencing starting point for the 1^st charge should be 21 months’ imprisonment.

46.The defendant has pleaded guilty at the earliest opportunity and is therefore entitled to a full one-third sentencing discount, bringing the sentence to 14 months’ imprisonment. 

47.Although the defendant was said by Dr Leung to be suffering from adjustment disorder after the incident, this court noted that the concern and the syndromes demonstrated by the defendant after the offence are none other than the usual consideration of any defendant in the circumstances. 

48.Further, although it is said by Dr Leung that the defendant has tried to stay away from anything relating to cars, and the wife in her letter says the defendant had actually abandoned the job that he loved most and not dare to continue car-relating business, in the defence counsel’s submission, it says in fact that the defendant is still operating the car parts business and he intends to start operating a garage in the future.  The understanding of the defendant by Dr Leung as depicted in the report is therefore not accurate.  This court has reservation to accept her diagnosis of the defendant.

49.The defendant obtained driving licence for less than 5 years at the time of the offence but he already has 6 speeding convictions.  This is not a particularly good driving record.  However, it is true that he do have a clear record.  This court is willing to discount the sentence further by 2 months by reason that he was a man previously of good character.  The defendant is therefore sentenced to 12 months’ imprisonment for this charge. 

Disqualification

50.On the first conviction of this offence, the court shall order the defendant be disqualified for a period of not less than 6 months unless the court for special reasons orders otherwise. 

51.As stated in the case of Hung Ling Kwok, this court accepts that the main purpose of disqualification from driving was forward-looking and preventive rather than backward-looking and punitive.  It was designed to protect road users in future from the offender who had shown himself to be a real risk on the roads. 

52.As conceded by defence counsel, there is no special reason in this case and considering the circumstances of the case, the court now orders that the defendant be disqualified from holding or obtaining a driving licence for all classes of vehicles for 2 years.

53.The defendant is further ordered to attend and complete a driving improvement course under section 72A(1A) of the Road Traffic Ordinance at his own costs within 3 months prior to the expiry of the disqualification order. 

2^nd charge

54.Any person convicted of this offence shall be liable to a fine at level 1, which is $2,000.

55.This court does not want to speculate reasons for the defendant committing this offence, nor the reasons for his 6 other previous convictions all in the year 2020 regarding display of valid licence or registration mark not displayed or lit or fitted.

56.The defendant is fined $1,800 for this offence.