HKSAR v. Chang Chun Lok, Marcus

DCCC 937/2023

[2024] HKDC 821

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 937 OF 2023

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REASONS FOR SENTENCE

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1.The defendant (‘D’)  pleaded guilty to the following 8 charges:

Charge 1: Taking conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap. 210;

Charge 2: Dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374;

Charge 3: Driving an unlicensed vehicle, contrary to section 52(1)(a) and (10)(a) of the Road Traffic Ordinance, Cap 374;

Charge 4: Driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374;

Charge 5: 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;

Charge 6: Resisting police officers in the due execution of their duties, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212;

Charges 7-8: Possession of a dangerous drug, contrary to section 8(1)(a)and (2) of the Dangerous Drugs Ordinance, Cap 134.

ADMITTED FACTS

Charges 1, 3, 4 and 5

2.On 2 May 2023, D sold a private car bearing registration mark WW 4425 (the ‘Car’)  to his friend, PW1.  PW1 became the registered owner of the Car since then.  After PW1 purchased the Car, he did not have enough money to purchase a third party insurance for the Car.  Thus, PW1 kept the Car at Po Lam Estate Carpark with the car key hidden on the right front tire.

3.At all material times:-

(a)  PW1 had never given D permission to use the Car;

(b)  The Car did not have a valid vehicle licence;

(c)  D was not a holder of any driving licence; and

(d)  The Car had no valid third party insurance in force as required under the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.

4.On 7 May 2023, D arrived at Po Lam Estate and took the car key from the right front tire of the Car.  D then took the Car for a drive without PW1’s permission.

Charge 2

5.At around 2317 hours on 7 May 2023, while conducting a patrol on a police motorcycle at Man Kuk Lane (Westbound), PW2 noticed D driving the Car.  At the time, two passengers were on board of the Car.  The Car made a U-turn at Man Kuk Lane (Eastbound)  by crossing the double white lines thereat and drove along Sheung Ning Road (Southbound).  Using the loudhailer, PW2 repeatedly demanded the Car to stop.  However, D disobeyed PW2’s instructions and drove on.

6.PW2 gave chase and saw the Car sped towards a red traffic light.  The Car jumped the said red traffic light and crossed the road junction of Sheung Ning Road and Ming Shing Road.  PW2 switched on the beacon light and siren of the Police vehicle forthwith.  The Car drove into a roundabout in the opposite direction of the traffic and made a U-turn towards Sheung Ning Road (Southbound).  Thereafter, the Car jumped another red traffic light at the junction of Sheung Ning Road and Chung Wa Road.  The Car made another U-turn by crossing the double white lines at Pui Shing Road.

7.PW2 observed that, the Car was initially driven at a speed of about 60-70 km/h (on road sections where the speed limit was 50 km/h).  However, once the Car got on the Tseung Kwan O Tunnel Road (where the speed limit was 70 km/h), PW2 noticed that the Car accelerated and travelled at a speed reaching 110 km/h.  PW2 reported the incident to the police console, and continued to pursue the Car along Tseung Kwan O Road towards the direction of Tseung Kwan O Tunnel.

8.Towards the end of the chase and inside the Tseung Kwan O Tunnel, the Car cut across the double white lines once and thereafter drove forcibly into the gap between the private vehicle which was immediately front of the Car (‘V1’)  and another private car bearing registration mark TS 9632 which was travelling on the left lane next to the Car (‘V2’).  The Car then collided with V2 whilst moving forward, resulting in scratches on V2.  Consequently, the driver of V2 suffered from tenderness on the right chest wall while the passenger on board of V2 suffered from tenderness on the neck.  Thereafter, the Car cut across the double white lines inside the Tunnel again. The aforesaid collision was captured by the CCTV installed at the Tseung Kwan O Tunnel.

9.D drove the Car in a dangerous manner since:-

(a)  D drove the Car at speeds beyond the speed limits and in contravention of traffic regulations, ie repeatedly cutting across double white lines, driving in the opposite direction of the traffic, jumping red traffic lights, in disobedience to the Police’s order to stop the Car and with persistent and reckless disregard for the safety of (i)  other vehicles and (ii)  the passengers on board, in order to evade the Police’s pursuit, investigation and arrest; and

(b)  D drove the Car forcibly into the gap between V1 and V2 and intentionally collided with V2, causing damage to V2 and injuries to the driver and passenger on board of V2, in disobedience to the Police’s order to stop the Car and with persistent and reckless disregard for the safety of (i)  other vehicles and (ii)  the passengers on board, in order to evade the Police’s pursuit, investigation and arrest.

Charge 6

10.Following the collision, D alighted from the Car near the exit of Tseung Kwan O Tunnel and attempted to flee by running towards Kwun Tong along Tseung Kwan O Road.  However, D was intercepted by PW2 and PW3 shortly thereafter.  While being intercepted, D used his right hand to push PW3’s chest, causing PW3 to lose balance and fall on the ground along with D, who continued to resist arrest and tried to escape.  As a result, D caused abrasions to PW3’s right thumb and left elbow.  In response to D's resistance, PW3 issued repeated warnings and discharged OC Foam on D’s face to subdue him. The course of events which occurred after the aforesaid collision was captured by the CCTV installed inside the Tseung Kwan O Tunnel.

Charges 7 and 8

11.D was arrested.  Upon search of the Car with Police Dog Unit's assistance, the Police found one transparent plastic bag containing 3.46 grammes of herbal cannabis (E1)  inside the glove box of the Car.  Further, a bottle containing 0.59 grammes of liquid containing 0.48 grammes of tetrahydrocannabinol (E2)  was found inside an orange ‘Nike’ bag in the trunk of the Car.  The Government Chemist subsequently confirmed the narcotic contents of E1-2.

12.Under caution at scene and in the subsequent cautioned video-recorded interview, D admitted taking the Car without PW1’s consent for fun and drove it in a dangerous manner, including crossing double white lines and causing a collision with V2.  He claimed that he tried to evade arrest by the Police as he did not have any driving licence.  D also admitted possessing E1-2 for self-consumption.

Footages

13.Three video clips capturing the course of events inside the Tseng Kwan O Tunnel were played in court before sentence:

Footage 1 Ch 14[1] 23:18:50-23:18:55	The Car drove into the gap between the private vehicles V1 and V2.  The Car then collided with V2 which was travelling on the left lane. (Para 7 of amended summary of facts)
Footage 2 Ch 12[2] 23:19:06-12:19:08	D crossed the double white lines inside the middle part of the Tseung Kwan O Tunnel. (Para 7 of amended summary of facts)
Footage 3 Ch 11[3] 23:19:19-23:19:39	D abandoned the Car.  He alighted at the exit of the Tseung Kwan O Tunnel.   D struggled with two police officers i.e. the police officer who was waiting at the exit of the Tunnel (PW3)  and the police officer who was chasing behind D (PW2).

Photo Album

14.A photo album was submitted to show:

(1)  The scratch mark on the offside front of V2. (Photo 1-2)

(2)  The damage on the nearside front of the Car. (Photo 3-4)

(3)  The subject matter of charges 7-8 ie E1-2 and the place where E1-2 were found. (Photo 5-11)

CRIMINAL RECORD OF THE DEFENDANT

15.D has a clear criminal and traffic record.

MITIGATION

16.D is now aged 20 and was 19 at the time of the offences.  He is educated up to Form 2.  He is the only son in the family.  His mother is a full time housewife and his father works in a bank.  They live in a private unit.  At the time of the offence, D was a part -time delivery worker.  Mitigation letters written by D and his family members were submitted.

17.It was submitted by Mr Pannu that D had been in detention since his arrest on 7 May 2023.  On the date of sentence, he would have been in detention for 12 months.  The court was requested not to call for reports.  Mr Panuu invited the court to impose a custodial sentence and to set a lenient sentence that would allow his release shortly from prison.

18.In respect of charge 1, it was submitted by Mr Pannu that the taking of the vehicle was a one-off joyride incident, committed out of foolishness, and not for committing any crimes. The user of the car from a friend (without his consent)  is different from stealing vehicles at random by using special tools or implements to commit crimes.

19.In respect of charge 2, the road chase was not of long duration, and not the worst of its kind when compared to some other authorities. There is no evidence that he was under the influence of drink or drugs. Fortunately, no serious injuries were caused to anyone and no major damage to property was caused. Of course, there are scratch marks on the vehicle ahead and the discomfort caused to the two occupants therein, who fortunately did not seek nor required any medical treatment. The only harm, albeit minor, was to one of the officers who had some abrasions to his thumb when two officers were trying to apprehend D.

20.Mr Pannu submitted in court that the facts of the present case might be similar to those in Lam Shun Choi[4] DCCC 612/2021, though no facts of the cases are the same.  However, the present case is not as serious as the facts in Ko Wai Kit, Paul CAAR 12/2001, Tang Chen Ming CACC 227/2002 and Lam Shun Choi.  The court was invited to consider the relevant factors: (i)  D has a clear record (traffic record as well)  and is of young age. (ii)  He jumped two red lights. (iii)  He drove against the traffic at a roundabout (presumably no vehicles at the time and no one was at peril or exposed to harm). (iv)  He scratched the side of a vehicle as he tried to squeeze past it when he entered the tunnel with some minor damage. (v)  The occupants only suffered minor discomfort. (vi)  The police chase was not tedious and for a long duration (5 odd minutes). (vii)  No one was injured in his vehicle. (viii)  The officer only sustained minor abrasion when apprehending D.

21.In respect of charges 3 to 5, Mr Pannu submitted that the traffic related conduct and the driving manner is not the worst of its kind, the court was invited to consider the sentence of charges 3 to 5 to be served concurrently to each other and concurrently to charge 2.

22.In respect of charge 6, as there being no tariffs in place, the defence invited the court to adopt a starting point from a fine to 3 months’ imprisonment.

23.In respect of charges 7 to 8, the drugs were cannabis and cannabis oil, which are soft drugs, as opposed to cocaine and ice. The quantity was very small. D stated that it was for his self-consumption, as he just started experimenting with it one or two months before, and he is not an addict.  It was submitted that there was no evidence that he had consumed alcohol or taken any drugs whilst he was behind the wheels. The police breath tested the D, and the result was negative for both substances. In any event, he has been detained for 12 months and thus there is no necessity to call for any DATC report. A fine for these two offences or a short sentence of a starting point of 1 to 3 months for each charge, to be served concurrently, will suffice.

24.As for mandatory disqualification, it was submitted that the appropriate period of suspension is left in the good hands of the court, as the court may deem appropriate. The court may think that a term of 1 year suspension may be appropriate since D does not have any previous convictions on record.

25.Finally, the court was urged to exercise leniency in sentence.

SENTENCE

26.I have considered the nature of the offences faced by D, the facts of the case admitted, the background of D and the mitigation submitted by the defence.

27.D is now aged 20 years and 4 months. He was 19 at the time of the offences.  I have borne in mind the legal principles in sentencing young offenders under the age of 21. I am aware that the restriction on imprisonment of young persons under section 109A of the Criminal Procedure Ordinance, Cap 221.  Regards must be given in the consideration of rehabilitation and reformation of the young offender. Seriousness of the offences must also be given sufficient consideration.

28.In the present case, the offence of charge 6 which D pleaded guilty to, being resisting police officers in due execution of their duties, is an excepted offence. As such, pursuant to section 109A (1A), section 109A(1)  does not apply.

29.In sentencing young offenders, the significant lapse of time between the commission of the offence, detention pending sentence and the date of sentencing should also be considered.  In HKSAR v Chong Chin Tong and others HCCC 149/2021[5]:

“Young Offenders

Here, there is the additional consideration of a significant lapse of time between the commission of the offence, the detention of all but one of the defendants pending sentence and the date of sentencing.”

30.In this case, I must consider the fact that D has been remanded since 7 May 2023 for almost a year.

31.I find that an immediate custodial sentence is the appropriate sentence for the present case.

32.I reminded myself that each case must decide on its own facts.

Charge 1 (Taking conveyance without authority)

33.The maximum sentence for the offence of taking conveyance without authority is 7 years’ imprisonment.

34.There is no sentencing tariff for this type of offence.

35.In HKSAR v Andrianiaina Adrien Luck Yu Pau CACC 129/2016, given that the taking of the goods van without authority was a single offence and that the appellant was of previous good character, the Court considered that the appropriate starting point for sentence was 9 months’ imprisonment.  The authority of The Queen v Tam, Simon (HCMA 489/1996 & 490/1996)  was referred to:

“33. Of the sentences imposed in respect of the three offences of taking a conveyance without authority, Chan J said: [11]“ Without setting a guideline for this type of offence, I should think that the sentence of 6 to 12 months imposed in the present case after a plea cannot be regarded in anyway as wrong in principle or manifestly excessive.”

36.Under caution, D admitted taking the Car without PW1’s consent for fun.

37.For charge 1, I adopt a starting point of 6 months’ imprisonment, after a discount of one-third for the guilty plea, the sentence is 4 months’ imprisonment.

Charge 2 (Dangerous driving)

38.The maximum sentence for dangerous driving is a fine of $25,000 and imprisonment for 3 years.

39.I have reminded myself of the sentencing principle set out by the Court of Appeal in Secretary for Justice v Poon Wing Kay & anor [2007] 1 HKLRD 660.  The sentencing principle is one of deterrence. The culpability of the defendant is the dominant factor to be considered. In Poon Wing Kay, paragraph 10:

“(3)  It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving: at p. 46C-E (para. 11). A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians)  are safe and that their lives are not endangered.

(4)  While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: at p. 47B (para. 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. In some cases, the fact that only some aggravating factors exist, but not others, may still bring the case into a very serious category.”

40.In this case, the D drove dangerously in order to avoid police apprehension.  As submitted by the defence, D was nervous and he knew that he did not have a valid driving licence.  At the time of the offence, he did not have any driving licence.  Apart from that, I am sure he also knew there were dangerous drugs in the Car.

41.In the case of Secretary for Justice v Ko Wai Kit, Paul CAAR 12/2001, the respondent was convicted of dangerous driving and resisting police officers in due execution of duties. The respondent in that case fled from the police and embarked on a crazed journey from Ngau Tau Kok to the Kowloon peninsula and he was finally stopped in Tsim Sha Tsui.  During which, the respondent jumped red lights, collided with motor vehicles, and with motorcycles, injured a police officer and two civilians and failed to obey police commands to stop.  The respondent was also under the influence of drugs.  The Court allowed the Review, adopted the maximum sentence of 3 years as the starting point and set aside the original sentence of 12 months imprisonment. The Court also substituted the original period of disqualification of 2 years with one of 5 years.

42.In The Secretary for Justice v Chan Hing Tung (陳興東) CAAR 1/2022, the respondent failed to stop before a road block in Kwun Tong Road and the police gave chase.  The respondent did not stop in accordance with the police command and committed one traffic offence after another, namely, speeding, repeatedly crossing double white lines, as a result of which, causing other motor vehicles to stop abruptly to avoid collision and jumping red light twice.  A police officer was also injured. The Court allowed the Review, the Court adopted a sentence of 24 months imprisonment as the starting point and set aside the original sentence of 10 months imprisonment.

43.In the present case, the road chase began when D was seen crossing the double white lines at Man Kuk Lane, Tseung Kwan O. D then drove dangerously on Sheung Ning Road, into a roundabout in the opposite direction of the traffic and made a U-turn towards Sheung Ning Road, Chung Wa Road and Pui Shing Road. The chase then proceeded to the Tseung Kwan O Tunnel.  D did not stop before the Tunnel but determined to enter it which is a dual way carriageway (towards Kowloon)  separated by double white lines.  Inside the Tunnel, D tried to overtake the vehicle in front by squeezing between the gap, thus traversing the white lines and colliding with other vehicle (V2).  During which, D contravened a number of traffic regulations, namely, speeding, jumping red lights twice and cutting across double white lines.  Despite repeated police warnings, D failed to give obedience.

44.The manner of driving of D posed serious risk to all other road users in the area at the time, in particular, inside the confined Tseung Kwan O Tunnel.  I had the opportunity to view the footages in court.  Inside the Tunnel, D drove into the gap between the vehicles.  The Car then collided with V2 and thereafter, the Car cut across the double white lines inside the Tunnel. Fortunately, actual injury to persons and damage to property in this case was relatively minor.

45.There were also two passengers on board of the D’s own vehicle at the time which obviously exposed to serious risks.  In Poon Wing Kay[6]:

“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 of his passengers (or, we would add, of pedestrians)  or with a degree of recklessness : at page 46f d (paragraph 12).”

46.It happened at around 2317 hours of the day, the traffic condition was not light as shown in the footage.

47.Under caution, D claimed that he tried to evade arrest by the police as he did not have any driving licence.

48.D did not hold any driving licence at the time of the offence.   He must have fully aware of that.  However, he drove out as if he was a qualified driver and even took two passengers on board.

49.For charge 2, having considered the circumstances of the case, I took a starting point of 24 months imprisonment, after one third discount for the guilty plea, the sentence is 16 months imprisonment.

Charge 3 (Driving an unlicensed vehicle)

50.The maximum sentence for driving an unlicensed vehicle, for the first conviction, is a fine of $5,000 and imprisonment for 3 months.

51.It is submitted by the defence that D did not take notice if the vehicle licence was renewed and valid.

52.For charge 3, I take a starting point of 3 weeks imprisonment, after one third discount for the guilty plea, the sentence is 2 weeks imprisonment.

Charge 4 (Driving without a valid driving lincence)

53.The maximum sentence for driving without a valid driving licence, for the first conviction, is a fine of $5,000 and imprisonment for 3 months.

54.At the time of the offence, D did not hold any driving licence. D was therefore fully aware that he was driving without a valid driving licence.

55.For charge 4, I take a starting point of 1.5 months of imprisonment, after one third discount for the guilty plea, the sentence is 1 month imprisonment.

Charge 5 (Using a motor vehicle without third party insurance)

56.The maximum sentence for the offence of using a motor vehicle without third party insurance is a fine of $10,000 and imprisonment for 12 months.

57.In HKSAR v Wong Chi Ming (HCMA 510/1999; unreported, 13 August 1999, at page 5)  it was held that the seriousness of the offence of using a motor vehicle without third party insurance “…lies in the possibility of the victims in traffic accidents may be left without any compensation.”

58.In the present case, it is shown in the admitted facts that the driver and a passenger inside TS 9632 suffered.  Though as submitted by the defence that they did not seek any medical attention, damage was caused to vehicle of TS 9632 and fortunate that it was not severe.

59.For charge 5, I take a starting point of 4.5 months imprisonment, after a one third discount for a guilty plea to this offence, the sentence is 3 months’ imprisonment.

Charge 6 (Resisting police officers in the due execution of their duties)

60.The maximum sentence for resisting police officers in due execution of their duties is one of 2 years imprisonment.

61.In The Secretary for Justice and Ko Wai Kit, Paul CAAR 12/2001, it is held that:

“22. The sentence to be imposed for such cases must carry a heavy deterrent element, for it is vital that those engaged to execute police duties are enabled properly to do so. What the offence will draw in terms of sentence will, as with all offences, depend on the circumstances.”

62.The footage showed that D abandoned the Car after the collision at the exit of the Tseng Kwan O Tunnel. As shown in the facts, D tried to escape by resisting the interception of two police officers.  D pushed PW3’s chest causing PW3 to lose balance and fall on the ground along with D.  D continued to resist despite repeated warnings.  It was not until OC Foam was discharged on D’s face that the police could do him down.  Injuries was also caused to PW3.

63.For charge 6, I take a starting point of 6 months imprisonment, after one third discount of D’s guilty plea, the sentence is 4 months imprisonment.

Charges 7 & 8 (Possession of a dangerous drug)

64.The maximum sentence for possession of a dangerous drug is a fine of $1,000,000 and imprisonment for 7 years.

65.D would be sentenced for other offence in this proceeding to imprisonment for more than 9 months, section 54A of the Dangerous Drug Ordinance, Cap 134 therefore does not apply.

66.D was found with a bottle containing 0.48 grammes of tetrahydrocannabinol and 3.46 grammes of herbal cannabis and in the truck of the Car. Under caution, D confessed that the dangerous drugs were for self-consumption.

67.Having considered the nature and relatively low quantity of the dangerous drug, I take a starting point of 3 weeks for each of charges 7 and 8, after one third discount upon guilty plea, the sentence is 2 weeks imprisonment each for charges 7 and 8.

TOTALITY

68.In considering the sentence of charge 2, I have taken into account the aggravating features of charges 3 to 5. Therefore, for charges 2 to 5, which are all traffic related, I order all sentences to be served concurrently.

69.For charge 6 (resisting police officers), it happened when D was approached by the police officers after the driving episode was over.  According to the relevant authorities, the sentence should be consecutive to other offences (See Ko Wai Kit, Paul CAAR 12/2001 and Chan Hing Tung CAAR 1/2022).

70.For charges 7 to 8, which are all dangerous drugs related, I order both sentences to be served concurrently.

71.The offence of taking conveyance without authority (Charge 1), the offences which are related to traffic (Charges 2-5), the offence of resisting police officers (Charge 6)  and the offences related to dangerous drugs (Charges 7-8), are separate and distinct in nature.  Nevertheless, bearing in mind the principle of totality, I order that 2 months of the sentence in charge 1 to run consecutively to the sentence of charges 2 to 5 and the balance be served concurrently. The sentence of 4 months imprisonment of charge 6 and 2 weeks imprisonment of charges 7-8 are to run consecutively with all other charges.

72.The sentence is as follows:

Charge	Starting point	Discount after plea
1	6 months	4 months	2 months consecutive with charges 2-5
2	24 months	16 months	Run concurrently
3	3 weeks	2 weeks
4	1.5 months	1 month
5	4.5 months	3 months
6	6 months	4 months	Consecutive with other charges
7	3 weeks	2 weeks	Run concurrently, consecutive with other charges
8	3 weeks	2 weeks
Sentence:  22 months and 2 weeks

Disqualification

73.For charge 2, the Ordinance provides that a person convicted of the offence of dangerous driving shall be disqualified for a period of not less than 6 months in the case of a first conviction, and for charge 5, there is a mandatory disqualification of not less than 12 months nor more than 3 years,unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

74.I do not see there is any special reason not to disqualify D.  Having considered the facts of the case, the relevant authorities and D does not have any previous convictions both in criminal and traffic record, I order that, for charge 2, D be disqualified from driving all classes of vehicles for a period of 30 months and as for charge 5, I impose a disqualification period of 12 months.  They are to be run concurrently.

CONCLUSION

75.The sentence is 22 months and 2 weeks imprisonment and a disqualification period of 30 months.