HKSAR v. Chan Lok Wah

DCCC 454/2021

[2022] HKDC 401

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 454 OF 2021

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Reasons for Sentence

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1.The defendant pleaded guilty to 5 charges, including:

(1)  Dangerous driving;

(2)  Driving a motor vehicle with any concentration of specified illicit drugs;

(3)  Driving while disqualified;

(4)  Driving an unlicensed vehicle;

contrary to section 37(1), 39K(1), 44(1)(b)  and section 52(1)(a), (10)(a)  of the Road Traffic Ordinance, Cap 374; and

(5)  Using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.

The Incident (1^st charge)

2.At about 1:16 am on 28 December 2020, police officers on board a police car AM8102, noticed the rear car plate light of a private car PE6908 was faulty.  Police car thus tailed the vehicle along Long Tin Road, Yuen Long. 

3.Upon reaching Park Royale, the vehicle steered right from the second left lane to the third left lane by crossing double white lines, and entered Yuen Long Highway.  The police switched on the beacon and directed the vehicle to stop, but in vain.  The vehicle accelerated and fled. 

4.Police vehicle continued to give chase to the vehicle along Yuen Long Highway, San Tin Highway, Tsing Long Highway, Tai Lam Tunnel, Tuen Mun Road and Tsuen Wan Road. Upon reaching the Tsuen Tsing Interchange roundabout, the vehicle drove in an opposite direction of the traffic and entered Tsing Tsuen Road, took a U-turn and entered Tsuen Wan Road, AM8102 continued to give chase to the vehicle as it travelled along Tai Chung Road, Hoi Hing Road, Hoi On Road, Castle Peak Road.

5.At about 1:33 am, the vehicle reached Sham Tseng Fire Station.  Another police car AM8101 joined the chase.  Seeing the vehicle exiting Tuen Mun Road, police officers attempted to stop the vehicle by driving closer to it.  The vehicle came to a halt and suddenly took a U turn and fled in an opposite direction of the traffic towards Tuen Mun. 

6.As the vehicle drove near chainage 60.0(B)  at Tuen Mun Road in an opposite direction of the traffic, the vehicle collided with the offside body of a private car VS6863, which was travelling along left third lane at the material time.  Mr Poon, driver to VS6863, confirmed that the offside body and the offside wing mirror was dented due to the collision.  Mr Poon also suffered from back pain as a result of the accident. 

7.At about 1:34 am, as the vehicle further travelled down Tuen Mun Road in an opposite direction of the traffic and reached chainage 62.1(A), a motorcycle VP6863 was travelling along left first lane of Tuen Mun Road.  The vehicle approached VP6863 in a high speed, causing Mr Yeung, driver to VP6863, to steer left to avoid collision, but he lost his balance and fell onto the road, resulting in abrasion on chest, palm and knee.  The nearside body and rear part of the motorcycle was also damaged. 

8.The vehicle kept travelling along Tuen Mun Road in an opposite direction of the traffic in a high speed of about 140 - 160 km/h while police cars chased behind with beacon and siren on.  Throughout the journey, the vehicle had been changing lanes furiously, causing other vehicles along the lane to come to a halt, or steer away in order to avoid colliding with the vehicle. 

The Arrest

9.While all police cars were chasing after the vehicle, supporting teams of police had blocked the traffic in order to avoid collision of cars with the vehicle. 

10.At about 1:39 am, the vehicle arrived at chainage 49.7(B)  and was forced to come to a halt.  The Defendant ran out of the driver’s seat of the vehicle and fled the scene, while a woman left the front passenger’s seat of the vehicle and fled at the same time.  The Defendant was eventually subdued at Castle Peak Road (San Hui), Tuen Mun. 

Police Investigation

11.As observed by the arresting officer, the defendant appeared to be gazed and disoriented.  At 1:56 am, a drug influence recognition observation was requested to be conducted, but the defendant refused as he was experiencing shortness of breath and chest pain at the moment.  The defendant was later conveyed to Tuen Mun Hospital. 

12.Later on the same day at 4:10 am, a specimen of blood was taken from the defendant with his consent.  The blood sample was sent to the Government Laboratory for examination.  The Government Chemist confirmed that 0.02 microgramme of ketamine per millilitre of blood and 0.07 microgramme of cocaine per millilitre of blood were present in the defendant’s blood sample (2^nd charge).  Moreover, 0.12 microgramme of Ecgonine methyl ester per millilitre of blood and 1.96 microgramme of benzolecogonine per millilitre of blood, which are metabolites derived from cocaine, were also present in the defendant’s blood sample. 

13.Investigation revealed that the defendant was disqualified from driving from 19 September 2020 to 18 March 2022 by court order.  He was further arrested for “Driving while disqualified” and “Using a vehicle without third party insurance” (3^rd and 5^th charge).  The vehicle licence of the vehicle was also found to have expired on 11 December 2020.  He was further arrested for “Driving an unlicensed vehicle” (4^th charge). 

14.Upon analysis of the police camera on AM8102, it is revealed that the vehicle had been maintaining a high driving speed:

(a)  At around 1:18 am, the vehicle was speeding at 152.21 km/h at Yuen Long Highway, the speed limit imposed was 80 km/h;

(b)  At around 1:23 am, the vehicle was speeding at 164 km/h at Tsing Long Highway, the speed limit imposed was 100 km/h; and

(c)  At around 1:27 am, the vehicle was speeding at 153 km/h at Tuen Mun Road, the speed limit imposed was 70 km/h.

15.The police car camera also captured the following incidents:

(a)  The defendant failed to stop the vehicle as required by police officer in uniform at around 1:18 am in Yuen Long Highway and around 1:22 am in San Tin Highway respectively;

(b)  The defendant drove on the wrong side of the road twice throughout the journey;

(c)  The defendant drove the vehicle to cross continuous double / single white lines on 11 occasions;

(d)  The defendant failed to comply with the traffic lights on 4 occasions;

(e)  The defendant drove the vehicle crossing chevron markings on 5 occasions;

(f)  At around 1:18 am, the defendant drove the vehicle along hard shoulder at chainage 42.4A, Yuen Long Highway;

(g)  The defendant drove the vehicle overtaking vehicles from their left at 3 occasions; and

(h)  At around 1:24 am, the defendant drove the vehicle past Tai Lam Tunnel without paying.

16.Throughout the whole journey, the defendant constantly failed to keep a proper lookout and safe distance with other vehicles on the road. 

17.Speed enforcement camera record near chainage 64.7B, Tuen Mun Road Southbound (Ting Kau Bridge)  captured that on 28 December 2020 at 0127 hours, PE6908 drove past the camera at a speed of 158 km/h, over the speed limit of 70 km/h imposed. 

Conclusion

18.On 28 December 2020 at New Territories in Hong Kong:

(a)  The defendant drove the vehicle on the road dangerously with a driving manner endangering other road users, which fallen far below that of a competent and careful driver (1^st charge);

(b)  The defendant drove the vehicle with 0.02 microgramme of ketamine per millilitre of blood and 0.07 microgramme of cocaine per millilitre of blood, which are specified illicit drugs, in his blood (2^nd charge);

(c)  The defendant, being a person who was disqualified from holding or obtaining a driving licence, drove the vehicle on a road while he was disqualified (3^rd charge);

(d)  The defendant drove the vehicle, which was not registered and licenced, on the road (4^th charge); and

(e)  The defendant used the vehicle on a road without third party insurance (5^th charge).

19.The Defendant, aged 31, had 6 previous criminal convictions including trafficking in 2010 and 2019 where he had been sentenced to 31 months and 2 weeks’ imprisonment; possession of dangerous drugs in 2016 and lastly in August 2019 convicted on the same offence of dangerous driving where he was sentenced to 5 months and 18 days’ imprisonment and disqualified from driving of 18 months upon release.  Apart from that, as to his driving record, he had careless driving in 2014, speeding in 2016, failing to comply with traffic signals in 2015, 2016 and 2018. 

20.Mr Davies, for the defendant, submitted that the defendant worked as a construction worker earning about $30,000 per month and now living with his parents, he had a daughter aged 9 and is now taken care of by his ex-wife.

21.As to the offences, Mr Davies says that on that day, the defendant took his daughter having fever to hospital and while returning the car, he was asked to stop by the police.  He panicked as he had been disqualified and therefore he fled.  Mr Davies also submitted that the offences were not the worse of its kind.  There was no permanent injuries suffered from anyone.  The road in question were all quite wide and was not very busy at the time in question.  When comparing to Secretary for Justice v Ko Wai Kit CAAR 12/2001, where a maximum imprisonment of 3 years was imposed in that case, the present one was not as serious as that case.  Nonetheless, the defendant had pleaded guilty at the earliest opportunity. 

22.In his mitigation letters, he showed remorse, and letters from his mother and employer also described the defendant a responsible and hardworking employee. 

23.As all the offences were committed at the same time.  Defence asked if all the sentences could be run concurrently; if not, then as lenient as possible. 

24.Dangerous driving and driving with concentration of drugs are very serious offences.  No doubt, it poses serious danger to all other road users, especially having taken the drugs like ketamine and cocaine as the defendant did.  In that, the law expressly treated these as an aggravating circumstances where it can lead to an increase by 50% of the penalty imposed. 

25.As to the dangerous driving, the defendant had been driving almost 2 times above the maximum limit at some occasions, driving at the wrong side twice and almost more than 15 minutes, crossing continuous double white lines 11 times, failed to comply four traffic lights, crossing chevron marking 5 times and also overtaking vehicles from the left on 3 occasions.  It was most fortunate that other drivers had not been injured seriously. 

26.Besides, having viewed the video captures, it can be seen that despite the repeated warnings by the police to stop, the defendant continued to went on driving furiously, including driving at the wrong side for more than 15 minutes at the highway. It could be said almost the worst kind of its case. 

27.Taking into all the above circumstances and manners of driving, I would adopt 33 months’ imprisonment as starting point, which would be reduced 22 months upon guilty plea.  I emphasise that the above sentence did not take into account the element of drug content while the defendant was driving, which is to be dealt with in the 2^nd charge. 

28.As to the second offence of driving with the content of ketamine and cocaine, I will adopt 15 months’ imprisonment as starting point, that will be reduced to 10 months after guilty plea. 

29.As to the driving while disqualified, driving an unlicensed vehicle and driving a vehicle without third party insurance, I will impose 1 month’s imprisonment upon guilty plea on all these 3 charges. 

30.As to the overall sentence, taking into consideration the totality principle and all the mitigation submitted, I will access that an overall sentence of 28 months’ imprisonment be appropriate and as follows:

1^st charge, 22 months’ imprisonment

2^nd charge, 10 months’ imprisonment;

3^rd, 4^th and 5^th charges, each 1 month’s imprisonment;

The 3^rd, 4^th and 5^th charges be run concurrently but consecutively to others.

For the 2^nd charge, 5 months of which to be made consecutive to others.

So the overall sentence be 22 months plus 5 months plus 1 month, that equals to overall sentence of 28 months’ imprisonment accordingly.

31.As to disqualification:

1^st charge, 3 years’ disqualification;

2^nd charge, 18 months’ disqualification;

3^rd and 5^th charges, each 12 months’ disqualification;

All be run concurrently, with effect from release of imprisonment.

32.The defendant also has to complete the driving improvement course within 3 months upon expiration of disqualification period at his own costs.