HKSAR v. Ho Sam Yuen Samuel

DCCC 847/2024

[2025] HKDC 2085

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 847 OF 2024

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REASONS FOR SENTENCE

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1.Mr Ho pleaded guilty before me to 5 charges on a Charge Sheet as follows.

2.Charge 1 is Dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on or about 17 March 2024, at Kowloon, in Hong Kong, drove a private car bearing registration mark ZA7649 on a road dangerously.

3.Charge 2 is Driving an unlicensed vehicle, contrary to section 52(1)(a)  and (10)(a)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on or about the same date, in Hong Kong, drove a vehicle, namely, the same private car, on a road when the said vehicle was not registered and licensed in accordance with the Road Traffic Ordinance, Cap 374.

4.Charge 3 is Driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on or about the same date, in Hong Kong, drove a motor vehicle, namely, the same private car, on a road when he was not the holder of a valid driving licence in respect of a vehicle of the class of vehicle which he was driving.

5.Charge 4 is 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.  Particulars are that he, on or about the same date, in Hong Kong, used a motor vehicle, namely the same private car, on a road when there was not in force in relation to the user thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.

6.Charge 5 is Possession of offensive weapons in a public place, contrary to section 33(1)  of the Public Order Ordinance, Cap 245.  Particulars are that he, on the same date, in a public place near the junction of Lung Cheung Road and Ching Tak Street, Wong Tai Sin, Kowloon, in Hong Kong, without lawful authority or reasonable excuse, had with him offensive weapons, namely 4 machetes.

Facts admitted by Mr Ho

Charge 1

7.On 17 March 2024, at around midnight, in Ngau Tau Kok area, the police was conducting an anti-drink-driving operation.  There, Mr Ho was driving a private car ZA 7649 (“the Vehicle”)  with no other passengers on board.  The Vehicle did not stop before a roadblock.  PC 12923 (“PW1”)  was on board police car AM7859 and saw what happened.  He tried to approach and stop the Vehicle. The Vehicle accelerated and a chase ensued.

8.Whilst on Ngau Tau Kok Road, the Vehicle overtook a bus at a diverging chevron marking, thereby crossing the diverging chevron marking and the double white lines there.  The bus with passengers on board had to brake immediately as a result.

9.When the Vehicle reached Kwun Tong Road, the Vehicle on the 3^rd lane overtook a taxi on the 4^th lane without signaling; the Vehicle weaved in and out of traffic on the motorway, and crossed the double white lines twice with the line nearest to the Vehicle being a solid line.

10.The Vehicle again crossed the double white lines on Lung Cheung Road. It then weaved in and out of traffic at high speed and crossed the double white lines with the nearest line being a solid line.

11.The speed limit of the road sections on which Mr Ho travelled was 50-70 km/h.  However, during the pursuit, in order to catch up with the Vehicle, PW1 had to drive at very high speeds, even up to 185 km/h at one point.

12.The pursuit lasted for about 2 minutes and ended with the Vehicle crashing 10 metres onto a pedestrian walkway at Ching Tak Street, causing severe damage to the guard rails there.  The nearside front of the Vehicle was also damaged.  Mr Ho was arrested.

13.Mr Ho now admits he drove in a dangerous manner in that he drove the Vehicle at very high speeds beyond the speed limits, weaving in and out of traffic on the motorway and in contravention of traffic regulations, ie repeatedly cutting across double white lines, weaving and overtaking other vehicles on the left and right without signaling, with persistent and reckless disregard for the safety of other road users, in order to evade the police’s pursuit, investigation and arrest.

Charges 2 to 4

14.At all material times, Mr Ho was not the holder of any valid driving licence; the licence of the Vehicle had already expired; and the Vehicle had no valid third party insurance in force as required under the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.

Charge 5

15.Upon search of the Vehicle, 4 machete knives (3 were 54 cm long, one was 46 cm long), 5 black caps, 5 black tops, and 5 pairs of black gloves were found.

Criminal record

16.Mr Ho has two previous convictions none similar.

Antecedents

17.Mr Ho is aged 26 (24 at the time of the offences), educated to F3 level, unemployed.  Mr Ho is single and lives with his grandmother in public housing in Kwun Tong.

Mitigation

18.Mr David Cheung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

19.Mr Ho’s pleas of guilty is the main mitigation.  Mr Cheung asked for a lenient sentence on behalf of Mr Ho so the latter can return home early to take care of his grandmother.

20.Regarding Charge 1 of dangerous driving, the maximum penalty is a fine of $25,000 and imprisonment for 3 years.

21.Mr Cheung compared the facts of the present case with those of Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 752 (3 years’ starting point with 5 years’ disqualification), HKSAR v Jim Chong Shing CACC 186/2003 (2 ½ years’ starting point), and HKSAR v Ng Kit Sing [2024] HKDC 611 (2 years 3 months’ starting point with 3 years’ disqualification).  Mr Cheung submitted that the facts of the present case are less serious than those of Ko Wai Kit; that as compared with Jim Chong Shing and Ng Kit Sing, the police chase here was for a shorter period but Mr Ho here reached higher speeds during the chase.

22.Mr Cheung emphasized that in the present case, unlike Ng Kit Sing, there was no injury caused to anyone.

23.Regarding Charge 2 of driving an unlicensed vehicle, the maximum penalty, for a first conviction, is a fine of $5,000 and imprisonment for 3 months.  There are no sentencing guidelines.

24.Regarding Charge 3 of driving without a valid licence, the maximum penalty, for a first conviction, is a fine of $5,000 and imprisonment for 3 months.  There are no sentencing guidelines.

25.Regarding Charge 4 of Using a motor vehicle without third party insurance, the maximum penalty is a fine of $10,000 and imprisonment for 12 months.  There are no sentencing guidelines, but the Court has noted that its seriousness “… lies in the possibility of the victims in traffic accidents may be left without any compensation”: see HKSAR v Wong Chi Ming HCMA 510/1999, at p 5.

26.In the present case, Mr Ho caused severe damage to the guard rails when he crashed into the pedestrian walkway at Ching Tak Street.  Beyond that, there was damage to the Vehicle that he was driving.  Mr Ho was very fortunate that no injuries were caused to anyone.

27.Regarding Charge 5 of possession of offensive weapons in a public place, the maximum penalty is 3 years’ imprisonment.  There are no sentencing guidelines.

28.Mr Cheung referred to three District Court sentencing cases for reference, namely, HKSAR v Mohabub Zaman Mithu DCCC 437/2014; HKSAR v Chiu Pui Ming [2023] HKDC 1638; and HKSAR v Lee Man Tai [2021] HKDC 1580.

29.On totality, Mr Cheung submitted Charges 1 to 4 arise from the same incident; that Charge 5 is a completely separate offence.  While recognizing consecutive sentences will likely be imposed, Mr Cheung urged the court to allow for some concurrent sentencing, particularly those related to driving offences, when considering totality.

30.Mr Cheung submitted there exist no special reasons not to order disqualification or attendance of a driving improvement course.

31.Upon enquiry by the court, Mr Cheung submitted that Mr Ho’s friend lent him the car on 16 March 2024 only hours before the offences and that the knives subject of Charge 5 were already there.  Mr Cheung further submitted that the presence of the knives was known by Mr Ho and that was why he pleaded guilty to Charge 5.  As regards the presence of the black-coloured apparel also found in the car, Mr Cheung had no submissions to make.  Mr Cheung also had no submissions to make on why Mr Ho ran from the police.

32.Upon enquiry by the court, Mr Cheung told me Mr Ho’s date of last discharge from prison was 21 or 22 of December 2023.

Sentence

33.Upon enquiry by the court, prosecution told me Mr Ho obtained a learner’s driving licence in January 2024, so it should be valid on the date of the offences; that a learner driver must be accompanied by a driving instructor at all times; and that the said licence should now have expired.

34.Also upon enquiry by the court, prosecution told me that the relevant vehicle licence expired on 23 November 2023; so from that date onwards, third party insurance could not have been arranged for the vehicle.

35.From the last paragraph of the facts[1] admitted by Mr Ho (see above), it can be seen that the circumstances of the offending under Charge 1 are rather severe and are potentially hazardous to other road users.  It was only a matter of sheer luck that there were no collisions with other vehicles along the way of the police pursuit resulting in personal injuries.

36.I am of the view that, assuming Mr Ho had a valid licence at the time, the starting point that is needed to deter him and others of like mind would be at least 2 ½ years’ imprisonment; and that is the starting point that I will adopt for Charge 1.

37.For Charge 2, I will adopt a starting point of 1 ½ months’ imprisonment.

38.For Charge 3, I will adopt a starting point of 60 days’ imprisonment.

39.For Charge 4, I will adopt a starting point of 6 months’ imprisonment.

40.For Charge 5, given the number and type of the knives and the presence of a similar number of black coloured apparel also found in the car, I regard 18 months’ imprisonment as the minimum starting point that I could take.  This is the one that I will adopt.

41.Mr Ho pleaded guilty to the charges in good time for which he shall be entitled to a 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentence reduction.

42.For Charge 1, disqualification for at least 6 months and an order to attend a driving improvement course are mandatory save where there are special reasons not to so order.

43.For Charge 4, disqualification for a period between 12 and 36 months from the date of conviction is mandatory save where there are special reasons not to so order.

44.For the driving improvement course, the fact that Mr Ho has never obtained a full driving licence is a good reason for not ordering Mr Ho to attend one.  So I shall not so order.

45.Although Charges 1 to 4 are related and took place at the same time, they were separate offences.  Indeed, Charges 3 and 4 aggravate Charge 1.

46.Charge 5 is completely separate and distinct from the rest and ought, in principle, to attract a wholly consecutive sentence.

47.However, before determining the final aggregate sentence, I will bear in mind the principle of totality and make appropriate orders accordingly.

(Mr Ho, please stand)

48.For Charge 1, the sentence is 20 months’ imprisonment.

49.For Charge 2, the sentence is one month’s imprisonment.

50.For Charge 3, the sentence is 40 days’ imprisonment.

51.For Charge 4, the sentence is 4 months’ imprisonment.

52.For Charge 5, the sentence is 12 months’ imprisonment.

53.I order that the sentences of Charges 2 and 4 are to run concurrently.

54.I order that 2 months of the concurrent sentences of Charges 2 and 4, one month of the sentence on Charge 3, and 7 months of the sentence on Charge 5, are each to run consecutively to the sentence on Charge 1, making an aggregate sentence for Mr Ho of 30 months’ imprisonment.

55.For Charge 1, I order Mr Ho to be disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 2 years.

56.For Charge 4, I order Mr Ho to be disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 12 months.

57.I order the two disqualification orders to run concurrently.