HKSAR V Chan Hei Tak Tang and Another

DCCC 1108/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1108 OF 2010

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REASONS FOR SENTENCE

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1.D1 pleads guilty to one charge of conspiracy to handle stolen goods, contrary to section 24 of the Theft Ordinance, Chapter 210 and sections 159A and 159C of the Crimes Ordinance, Chapter 200 (charge 1) and one charge of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Chapter 212 (charge 2).

2.D2 pleads guilty to one charge of dangerous driving, contrary to section 37 of the Road Traffic Ordinance, Chapter 374 (charge 3) and two charges of resisting a police officer in the due execution of his duty (charges 4 & 5).

3.In summary between 1900 hours on the 8th July 2010 and 1000 hours the next morning a 7-seater Nissan Elgrand private car EY6698 was stolen from a car park in Cheung Sha Wan.  On the 9th July the police discovered EY6698 was parked in a car park in Tuen Muen.  D1 had earlier called the car park attendant asking to park a car in the car park for two days.  The police kept EY6698 under observation and in the evening saw D1approach EY6698.

4.In the afternoon of the next day, the 10th July, D1 telephoned the car park attendant enquiring whether the police had been to the car park.  In the evening the police laid ambush in the vicinity of the car park.  At about 1953 hours D2 drove private car NR918 to the car park and parked next to EY6698.  D1 alighted from the car and opened the driver’s door of EY6698 getting ready to drive away (charge 1). 

5.The police then took action to effect arrest.  By this time D1 had already started EY6698.  SPC 51178 opened the driver’s door and grabbed hold of the defendant telling him, “Police.  Get off the vehicle.”  D1 continued to drive forward and as the car picked up speed SPC 51178 lost his grip of D1.  Fortunately SPC 51178 suffered no injury as a result (charge 2).  D1 managed to drive away in the course of which he almost knocked down a police officer on a bicycle. 

6.At the same time PC 1959 grabbed D2 and said “Police.  Don’t move.”  D2 struggled and managed to push PC 1959 away.  D2 got onto NR918 and drove away.  PC 1959 together with PC 33355 grabbed hold of D2 but as the car picked up speed both police officers fell onto the ground.  Again fortunately PC 1959 and PC 33355 suffered no injuries.

7.PC 34397 also tried to grab hold of D2’s right arm whilst he was driving but D2 banged the driver’s door into a container causing the door to hit PC 34397, who fell on the ground.  As a result PC 34397 sustained minor injuries to his right elbow and right knee.

8.D2 then proceeded to drive at high speed to the exit of the car park.  D2 had to stop because the police had parked a lorry and a police private car MV2639 to restrict access from the car park.  At this point Sgt 51801 tried to open the front passenger door of NR918 and shouted to D2, “Police.  Stop the car.”  D2 instead drove forward bumping into the police private car and drove between the gap between the private car and the lorry.  PC 54595 ran to the rear of MV2639 when he saw NR918 in front of him with Sgt 51801close to the nearside of NR918.  Fearing for the safety of Sgt 51801, PC 54595 drew his pistol and shouted, “Police. Stop the car, or else I will shoot.”  D2 ignored the warning whereupon  PC 54595 fired one shot. Sgt 51801 let go of the door of NR918, which then drove away (charges 3 & 4).

9.Two days later both D1 and D2 were arrested at the Gold Coast Piazza in Tuen Mun. D2 resisted his arrest by struggling and pushing   Sgt 51750, PC 1963 and PC 3924, all of whom sustained relatively minor injuries (charge 5).

D1

Conspiracy to handle stolen goods (charge 1)

10.There are no guidelines for handling stolen goods.  In passing sentence I take into account the factors identified in R v Bernard Webbe [2002] 1 Cr. App. R. (S) 82.  In HKSAR v CHENG Chun-ming     CACC 356/2000 the Court of Appeal said, “Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length.  This is absolutely necessary to act as a deterrent to a prevalent crime.”

11.Taking into account the value of the car, which I am told was purchased new in 2008 for $350,000; and the role of the defendant in the conspiracy, who is not a motor trade dealer,  I am satisfied the proper starting point after trial is 3 years imprisonment. 

12.The offence was committed whilst the defendant was on bail for another charge of conspiracy to handle stolen goods, for which he stands trial in May.  Commission of offences on bail is an aggravating feature of sentence for which a higher starting point may be appropriate (see for example HKSAR v YUEN Gang-shing CACC 303/1997). 

13.The defendant is also properly to be regarded as a persistent offender, having multiple convictions relating to dishonesty, including two for handling stolen goods, two for going equipped for stealing and convictions for tampering with a motor vehicle and taking a conveyance without authority (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

14.I am satisfied the proper starting point after trial is to be increased by 6 months to 3 years and 6 months imprisonment  by reason of the offence being committed whilst on bail and the defendant being a persistent offender.

Resisting Arrest (charge 2)

15.Whilst SPC 51178 suffered no injury as a result of D1’s resistance this was fortuitous.  I reject the suggestion of Mr Cheung that the police officer is partly to contribute by putting himself in a dangerous position. The defendant by driving away when SPC 51178 was trying to stop him from leaving clearly exposed the police officer to the risk of serious injury.  I am satisfied the proper starting point after trial is 6 months imprisonment.

D2

Dangerous Driving (charge 3)

16.In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death.  These factors were revised in R v Cooksley [2003] RTR 32.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v POON Wing-kay & another [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.

Aggravating features

17.I am satisfied there are a number of aggravating features in this case.  Although the distance covered was relatively short the driving was nevertheless aggressive and deliberate, in what was an open spaced car park.  The defendant disobeyed the orders of the police to stop; drove the car in a manner which banged the driver’s door against a container so that the door hit PC 34397 causing him to lose his grip on the defendant and fall to the ground, resulting in injuries to his right knee and elbow; crashed into an unmarked police car resulting in damage to the police car; and drove in a way which caused PC 54595 to fear for the safety of      Sgt 51801, so much that he drew his revolver and fired one shot.

18.In Cooksley the court said the existence of previous convictions for motoring offences, particularly offences which involve bad driving, is an aggravating feature of sentence.  The defendant has a previous conviction for dangerous driving in 2004 for which he was sentenced to 6 months imprisonment.  At the same time the defendant was also convicted of damage to property with intent to endanger life for which he received a concurrent sentence of 6 months imprisonment.  

19.At the time of the offence the defendant was on bail (although I note he was ultimately acquitted of that offence), which again is an aggravating feature of sentence. 

20.I agree with Mr Souyave that the defendant’s driving is not as serious as that of the defendant in the Secretary for Justice v KO Wai-kit [2001] 3 HKLRD 751 and that the proper starting point after trial, taking into account all the aggravating features, is one of 2 years imprisonment.

Resisting Arrest (charge 4)

21.When the defendant tried to leave he resisted five police officers, one of whom was injured, albeit not very seriously.  The defendant resistedPC1959so as to enable him to get in the stolen car and drive away.  This he succeeded and when the police tried to stop him driving away he resisted their actions by driving in the manner described in the dangerous driving charge.  Again by driving in this way the defendant clearly exposed the police officers to the risk of serious injury.  Fortunately none were seriously injured.  I am satisfied the proper starting point after trial is one of 18 months imprisonment.

Resisting Arrest (charge 5)

22.Two days later when the defendant was arrested he again resisted by struggling and pushing three police officers, who sustained relatively minor injuries.  I am satisfied the proper starting point after trial is one of 9 months imprisonment.

23.In passing sentence I have carefully considered everything said by Mr Cheung on behalf of D1 together with the letter from Chaplain John Wotherspoon asking for a plan of rehabilitation to be arranged.  I am satisfied a sentence of rehabilitation is not appropriate in this case.

24.I have carefully considered everything said by Mr Souyave on behalf of D2, in particular that his wife suffers from depression and that since getting married, from which four young children aged between 1 and 6 years have been born, the defendant has tried to reform himself, his last conviction being in 2004.  I have considered the letter from the District Councillor and the charitable contributions made by the defendant.

Sentence

25.Giving the defendants full credit for their pleas of guilty they are convicted and sentenced as follows:

D1

Charge 1 – 2 years and 4 months imprisonment;

Charge 2 – 4 months imprisonment.

Charges 1 and 2 are separate and distinct for which consecutive sentences are appropriate. I am satisfied a total sentence of 2 years and 8 months imprisonment properly reflects the defendant’s criminal culpability on the two charges. Accordingly I order the sentences on charges 1 and 2 to be served consecutively.

D2

Charge 3 – 1 year and 4 months imprisonment;

Charge 4 – 12 months imprisonment.

The two charges essentially arise out of the same facts. Only in respect of PC1959can there be said to be a separate act of resisting, which is not also part of the dangerous driving. I am however satisfied that a total sentence of 1 year and 4 months imprisonment properly reflects the defendant’s criminal culpability on the two charges and accordingly order the sentences to be served concurrently.

Charge 5 – 6 months imprisonment.

Charge 5 is entirely separate and distinct from charges 3 and 4 for which a consecutive sentence is appropriate. Taking into account the charitable donations made by the defendant and totality of sentence I am satisfied a total sentence of 1 year and 8 months imprisonment properly reflects the defendant’s criminal culpability on all three charges. Accordingly I order 4 months to be served consecutively and 2 months concurrent to charges 3 and 4.

Disqualification

26.Unless there are special reasons the minimum period of disqualification on a second conviction for dangerous driving is for a period of not less than 18 months. By virtue of section 37(3) of the Road Traffic Ordinance a court may deal with the conviction as a first offence if 5 years have elapsed since the last conviction.  At the time of the commission of the offence over 6 years had elapsed.  I am however satisfied this is not an appropriate case to deal with the offence as a first offence.  The driving albeit over a relatively short distance was nevertheless very bad driving, putting at risk a number of police officers. 

27.On charge 3 the defendant is disqualified from driving all classes of vehicles for a period of 3 years.  The defendant is also ordered to attend and complete a driving improvement course, which he is to do at his own cost, within the period of 3 months ending on the date on which the disqualification expires.