HKSAR v. U Pui Hang
Read the full judgment text of DCCC 431/2022 on BabelCite. This District Court judgment was delivered on 28 April 2023.
1. The D pleaded guilty to seven charges:-
Cites 6 cases
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DCCC 431/2022 [2023] HKDC 563 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 431 OF 2022 ________________________
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_________________ REASONS FOR SENTENCE _________________ 1.The D pleaded guilty to seven charges:-
Summary of facts Background 2.PW2 confirmed that he had been instructed by PW1 (the car owner) to pick up the Car from Ah Kei in January 2022. PW2 towed the Car from Ah Kei’s garage to Tun Yu Road and left the Car unlocked with the key placed inside the Car. The Incident 3.At about 0003 hours on 2 February 2022, the police were conducting traffic enforcement action on a police vehicle equipped with the Mobile Automatic Number-Plate Recognition (M-ANPR) and ProVida and the devices detected the vehicle license of the Car had been expired (Charge 5). 4.The police officers intercepted the Car at a road shoulder in Tuen Mun Road. 5.When the police officers approached the Car, the Car suddenly sped off and drove away towards Tuen Mun direction. 6.The police thus gave chase and requested multiple times the Car to stop through a loudspeaker. The Car continued to drive off along Tuen Mun Road without stopping. 7.Eventually at about 0010 hours, the Car arrived at a dead end in Sham Tsz Street and stopped. 8.During the course of the chase, the Car was observed to, inter alia, have: -
9.After stopping the Car, the defendant and his passenger also alighted from the Car, the defendant fled immediately, but was soon subdued by the Police. Investigations 10.The police searched the Car and found in the compartment below the steering wheel a transparent resealable plastic bag that contained traces of a solid containing ice (Charge 2). 11.Rapid Oral Fluid Test was conducted with the defendant at scene and the defendant was tested positive for ice. The defendant was arrested and cautioned. 12.Upon enquiries, it was revealed that the defendant was not the registered owner of the Car and it was taken without the knowledge of the owner (Charge 1). 13.It was also revealed that the defendant had been disqualified from holding or obtaining a driving license at the material time (Charge 7). 14.The defendant was then arrested for six offences including “taking conveyance without authority”, “dangerous driving”, “driving whilst disqualified” and “possession of a dangerous drug”. 15.Under caution, the defendant stated inter alia that he had taken the Car from Tun Yu Street at 3 pm on 31 January 2022 and the key was placed therein. 16.The defendant was brought to Yan Chai Hospital and blood sample was taken from him in the hospital at about 0439 hours. Government Chemist subsequently confirmed that the defendant’s blood sample contained 0.56 microgramme of methamphetamine per milliliter of blood (Charge 3). Video-recorded Interview 17.In a video-recorded interview, the defendant stated inter alia the following under caution: -
Disqualification of the defendant 18.The defendant was last disqualified by the court on 18 July 2019 from holding or obtaining a driving license for 3 years. He was further ordered to be re-tested. Third Party Insurance (Charge 6) 19.Further, the relevant third party insurance policy of the Car expired on 1 February 2022. Criminal record 20.The defendant has six previous court appearances resulting in 23 criminal convictions between 2013 to 2019.
Traffic convictions 21.Apart from the above convictions, the defendant also has the following convictions: -
Antecedent/ Mitigation 22.The defendant is now aged 29 years old, single and worked as a car technician earning about $12,000 per month. His counsel told me that he is remorseful and he will not commit the same offences again as he understands that it involves other road user and pedestrians. 23.The defence invited this court to impose a concurrent sentence for all charges. Sentence 24.Before the commencement of the proceeding, I asked the defence if the defendant has any objection for me to handle this case as I have passed sentences on him previously in Tuen Mun Court. 25.The defendant confirmed with Mr Cheung that he has no objection for this court to handle this case. Nonetheless, I must say that I have no recollection of the facts of those cases as they were way back in 2016 and 2017. 26.Turning to the sentences of each charge, I first dealt with: - Charge 1 - Taking conveyance without authority 27.The maximum sentence is 7 years; the defendant did not have any similar record to this charge. 28.From the summary of facts, it said that PW2 parked the car at Tun Yu Road unlocked with the car key still placed inside it. The defendant said under caution that he learned from his friend about the location of the car and he took it for a joy ride. He intended to return the Car after it. 29.The defence quoted the case of R v Tam Simon HCMA 489 & 490 of 1996. In the judgement of that case, the court said that: -
30.In the present case, the defendant was simply not qualified to drive as he was on a disqualification order and a re-test order. What the defendant did was an affront to the law and a blatant disregard for a court order. 31.In such circumstances, I take 12 months as the starting point, reducing to 8 months after 1/3 discount. Charge 2 - Possession of dangerous drugs, that was the traces of ice 32.There were traces of drug found in the car. The defendant admitted that it was the leftover after his consumption. 33.As stated in the judgement of HKSAR v Muhammad Waqas CACC 272/2017 that at paragraph 72 “that the quantity of narcotic was “insufficient to be measured or used”.” 34.From the defendant’s criminal record, I can see that he has 4 previous similar convictions. It is obvious that the defendant has not yet overcome his drug addiction problem since 2013, when he was about 19 years old. 35.As such, I consider that a starting point of 9 months is appropriate, I reduce the sentence to 6 months’ imprisonment after 1/3 discount. 36.Since charge 1 and 2 are separate and distinct offences, I order these charges to run consecutively. That arrives at a sentence of 14 months’ imprisonment. (8 + 6 = 14) 37.As to charge 3 to 7, they are the driving offences which took place on 2/2/2022. Two days after the commission of the first offence. 38.I have reference to the case of HKSAR v Yip Sing Yeung CACC 216/2021 , the appellant was convicted upon his guilty plea for 4 charges: -
Charge 3 - Drug driving Charge 4 - Dangerous driving 39.As stated in the summary of facts, there were 0.56 microgrammes of methamphetamine per milliliter of blood presented in his body. He was under the influence of drugs during the time of driving. It is obviously dangerous for him to drive. 40.He must know the effect in his body after taking ice which can impair his judgement of driving and driving skills. As said in the judgement of HKSAR v Chan Hon Hoi [2011] 1 HKLRD 808 that “driving under the influence of drugs can be more serious than dangerous driving.” 41.On the other hand, his driving manner was totally horrendous. I have the opportunity to view the CCTV from the police car camera with the consent of the parties in the open court. I can see during the 7 to 8 minutes of police chase, the defendant was driving at a high speed, from 127 to 142 km/h, the police shouted in loudspeaker to ask the defendant to stop numerous times, but he ignored the police warnings. He jumped red lights several times, weaved in and out between vehicles, drove on the wrong side of the road, against the oncoming traffic, I can hear that cars sounded their horns to warn the defendant. Worse still, when the Bus stopped at a junction, the defendant overtook the Bus by forcefully squeezing through the limited space and scratched the right front corner of the bus. 42.The prosecution cannot provide the information of the total distance of that 7 to 8 minutes’ pursuit. Suffice to say that at a speed of about 135 km/hour, it should cover a long distance. Speed limits on that part of the road was only 70km/h. 43.One can only say that it was sheer luck that there was no accident occurred during the chase. Otherwise, the consequence could be dead serious and disastrous to all the road users. A driver in control of a vehicle can turn into a lethal weapon by driving irresponsibly. When accident happens, it can kill/main the road users and his own passenger. 44.Needless to say, the defendant was fully aware that the police vehicle was right behind him, his driving manner also posed great risk and dangers to the police who were given the duty to chase and stop him. 45.In both of the charges, there are aggravating factors to be considered: -
46.Turning to his previous conviction of the same offence in charge 3 was in December 2016, the present offence was committed in February 2022, there was a lapse of 5 years. 47.According to S39K (6) that the court may deal with charge 3 as the offence as a first conviction. 48.The defence did invite this court to treat the defendant as the first time offender for charge 3. 49.I disagree. 50.The word “MAY” empowered this court with a discretion not to treat the defendant as a first time offender of this section despite the fact that there was a lapse of time of 5 years. 51.In view of the D’ criminal records, as he repeatedly committed driving offences and drugs offences since he obtained his driving license in 2015. The defendant is clearly a repeated and persistent offender. 52.As said in the judgement of HKSAR v Yip Sing Yeung CACC 216/2021 at paragraph 22 that “given the applicant’s previous extensive and similar criminal record, it was not appropriate for the judge to exercise that discretion in the applicant’s favour.” 53.Against this background, I refuse to exercise the discretion to treat the defendant as a “fresh offender” in charge 3. 54.As to charge 4, he has one previous conviction of dangerous driving in 2017 and one dangerous driving causing grievous bodily harm in 2019. Since the offence of dangerous driving is committed in the circumstances of aggravation, the maximum sentence and disqualification period are each increased by 50%. (S37 (2D) refers.) 55.S37 (2E) of the Road Traffic Ordinance, Cap 374 stated that circumstances of aggravation is the present of illicit drugs in the defendant’s blood. 56.From 2016 to 2019, the defendant had 4 previous cases which involved driving offences, it is clear to me that he has not learnt from past experiences, a deterrent sentence is called for. He committed the present offence only one year after he was released from prison. 57.Having said that I do not mean that the defendant is subjected to a second punishment of his past misdeed. He must be deterred in order to protect the public at large. 58.There is no sentencing guideline in these charges, but the general principle is one of deterrence and to “ instil social responsibility on the driver” (paragraph 10 of Yip Sing Yeung.) 59.As stated in the case of HKSAR v Chan Hon Hoi [2011] 1 HKLRD 808 that:
60.Against this background, I consider that: -
Charge 5 - Driving an unlicensed vehicle 61.This is the third time that the defendant had committed the same offence. His last two convictions were in February and November 2017 respectively. 62.The maximum sentence for subsequent convictions in charge 5 is a fine at level 3 and 6 months’ imprisonment for a second and subsequent convictions. 63.In view of the circumstances of the case, I take 4.5 months as the starting point and reduce to 3 months after 1/3 discount. Charge 6 - Driving without a third party insurance Charge 7 - Driving while disqualified 64.The defendant has 4 and 3 previous convictions for the offence in charge 6 and 7 receptively. 65.He was ordered to be disqualified by the court in July 2019 for 3 years. In 2/2022, when he was arrested for the present offences, he was still under the disqualification period, when he continued to drive, it is a flagrant breach of the court order. 66.Further, the insurance policy for the vehicle had expired already. That was one day before his arrest. 67.As stated in the judgement of R v Lui Wing Han [1997] HKCU 224 that: -
68.Simply put, the defendant’s vehicle is not covered by insurance. The defendant time and time again just ignored the consequences of his legal liability. 69.In such circumstances, I consider: -
The total period of disqualification order: - 70.The defendant is ordered to be disqualified from holding a driving license or driving any type of vehicles.
71.Disqualification order in respect of charge 3 to 6 are to run concurrently. A total of 5 years. 72.3 years disqualification order from charge 7 is to run consecutively to charge 3 to 6. 73.The total period of disqualification order is 8 years. (5 + 3 = 8) No driving improvement course order 74.The defendant was ordered by the court in DCCC 71/2019 to re-take his driving test again before obtaining a driving license. 75.At the time of arrest, he was still in the disqualification period, therefore, he has not yet retake his driving test, no driving license has been obtained. 76.In this connection, the re-test order is still in force. The defendant is not allowed to obtain a driving license until he passes the driving test at the completion of the period of disqualification. Totality 77.I order sentences in charge 3 to 7 to run concurrently. That is a total of 20 months. 78.I also order the 14 months from charge 1 and 2 to run consecutively to charge 3 to 7. 79.That arrives at a total sentence of 34 months. (20 + 14 months)
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Cases cited in this judgment