HKSAR v. Wan Hing Lung

DCCC 412/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 412 OF 2013

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Reasons for Sentence

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1.The defendant has pleaded guilty today to five charges: handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210, this offence carries a maximum term of imprisonment of 14 years; Charge 2, driving a motor vehicle without proper control under the influence of a specified illicit drug, contrary to section 39J(1) of the Road Traffic Ordinance, Cap 374; that offence carries a maximum term of imprisonment of 3 years’ imprisonment with a minimum disqualification for 5 years from driving any class of vehicle; the specified illicit drug in this charge was “Ice”.

2.The 3rd charge was driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance.  That carries a maximum term of imprisonment of 12 months plus a disqualification order. 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.  That carries a maximum term of imprisonment of 12 months’ imprisonment plus a disqualification order. 

3.The 5th and last charge is dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance.  That carries a maximum term of imprisonment of 3 years’ imprisonment or up to 4½ years if certain aggravating factors exist as well as a disqualification order.

4.The facts of this case are very serious.  The defendant was driving a stolen vehicle.  The vehicle was stolen on 29 November 2012.  The lock was subsequently changed, the licence disk on the windscreen altered and forged and the registration plates in the front and the back had been replaced with the defendant’s own plates.

5.The defendant was spotted driving this vehicle on 8 December 2012.  It was in the early hours of the morning at 3.27 am on the Yuen Long Highway.  An unmarked police car followed the defendant because the defendant’s vehicle was seen accelerating above the legal speed limit.  The speed limit on that road is 80 kilometres per hour.  And not long after the police took note of this vehicle was it seen accelerating to 106.49 kilometres per hour.

6.This vehicle was then seen being driven very erratically.  The manner of driving included changing lanes frequently in an unsteady manner.  There was erratic braking suddenly and accelerating; at one stage this vehicle was seen accelerating up to 244.48 kilometres per hour.  The police observed something being thrown out of the window.  This vehicle was then observed cutting over solid double white lines.

7.Having seen enough the police put on their siren and told the defendant to stop.  The police request was ignored.  Despite this request, the defendant kept driving in the manner I have previously described.

8.He was also observed overtaking vehicles at very high speeds and cutting very close to other vehicles.  One vehicle was overtaken when the distance between the vehicles was about 1 metre.  The top speed that the police clocked the defendant driving was 160 kilometres per hour. 

9.Eventually, the defendant’s path was blocked by a taxi and the defendant had to enter a road works area where he knocked over portable lights and traffic cones.  Another police vehicle came to assist and had to avoid being rammed by the defendant.  But the defendant made a second attempt and successful hit that police vehicle.  However, that vehicle did block the defendant’s path. 

10.About 6 minutes after the police started to follow the defendant, they managed to intercept him.  The defendant was not speaking coherently or acting normally.  The defendant had to be sent to hospital.  A blood test was later conducted and the drug “Ice” was detected in his bloodstream.

11.The vehicle the defendant was driving was badly damaged and nine water barriers were also damaged.  Two police officers had to go to hospital and between them they were granted six days of sick leave. Luckily, they did not suffer any serious injury. 

12.In addition when the defendant was arrested, he was on bail for driving whilst disqualified.  For that offence he had been arrested on 4 November, just a month prior to this offence.

13.The defendant’s best mitigation is his plea of guilty.

14.I have been told he has 71 previous convictions resulting from 17 court appearances.  Many of them are related to offences of dishonesty including 10 for taking a conveyance without authority.  He has three previous convictions for driving whilst disqualified and 10 for driving without third party insurance. 

15.The defendant is 37 years old.  He has separated from his wife and his 8-year-old son lives with his paternal grandmother.  The defendant was unemployed at the time of the offence and receiving CSSA public assistance. 

16.Mr Clarke on behalf of the defendant has done his utmost to mitigate on his behalf and produced several authorities to assist the court in sentencing.  Mr Clarke has pointed out some obvious factors such as there were no serious injuries suffered by anybody as well as there being no evidence the defendant stole the vehicle, nor was he a professional driver. 

17.However, according to the defendant’s previous record and the facts of this case, he clearly is a nuisance to other road users and the society.  Very fortunately, in this case no one was killed or injured.

18.To drive whilst under the influence of drugs is the height of irresponsibility and will be dealt with harshly.  When the drug driving problem became prevalent and the public became most concerned, a new law was passed in December 2010 adding subsection (2)(d) and (2)(e) to section 37, the dangerous driving offence.  The amendment allows for the maximum of 3 years to be increased by 50 per cent when the offence is aggravated by the offender, in this case having drugs, specific drugs in his bloodstream.  “Ice” is one of the specified drugs.  Therefore, section 37(2)(d) applies here.  And defence counsel concedes that is the case.

19.The maximum sentence in this case for Charge 5 for the dangerous driving offence is 4½ years. 

20.None of the offences the defendant has pleaded guilty to has specific guidelines where sentencing is concerned.  It will in each case depend on the facts and the circumstances.

21.Where Charge 1 is concerned, handling a stolen vehicle, I take into account what the defendant did to this vehicle, putting on his own licence plates and altering the licence disk in an attempt to evade detection.  The courts always impose deterrent sentences where vehicles are stolen.  Vehicles are valuable and the loss of vehicles caused great inconvenience to owners. 

22.Defence counsel has referred me to the authority of HKSAR v Cheng Chun Ming CACC356/2000.  I took that authority into account.  In that case a 3-year starting point was deemed appropriate, but the facts are quite different and that defendant had a clear record.  Here, this defendant has many, many previous that relate to dishonesty and vehicles.  He is a persistent offender. 

23.For Charge 1, I would take a starting point of 4 years’ imprisonment. 

24.For Charge 2, I take a dim view of those that commit this offence as did my learned brother in HKSAR v Ip Kwok Leung DCCC24/2012.  Having considered the facts of this case, for Charge 2, I will take a starting point of 2 years and 9 months.

25.For Charge 3, this is the fourth conviction for this offence, and he was on bail at the time for a similar offence.  The defendant consistently displayed a flagrant disregard of the   law, the court and court orders.  I take the maximum starting point of 12 months for Charge 3.

26.For Charge 4, this is the eleventh conviction of this offence.  I take the maximum starting point of 12 months for this offence. 

27.For Charge 5, the dangerous driving offence, I have already indicated how serious it is to drive under the influence of drugs and to drive dangerously with complete disregard of others on the road as well as the police.  I take a starting point of 4 years’ imprisonment. 

28.Defendant, please stand up.  You have pleaded guilty and you are entitled to a discount of one-third for your plea for each charge. 

29.For Charge 1, I impose a term of imprisonment of 2 years and 8 months.  For Charge 2, I impose a sentence of 1 year and 10 months and disqualify the defendant from driving any class of vehicle for a period of 5 years.  For Charge 3, I impose a term of imprisonment of 8 months, and the defendant is disqualified from driving any class of vehicle for a period of 4 years.  For Charge 4, I impose a term of imprisonment of 8 months and disqualify the defendant from driving any class of vehicle for a period of 3 years.  For Charge 5, I impose a term of imprisonment of 2 years and 8 months and impose a term of disqualification from driving any class of vehicle for a period of 5 years.

30.The periods of disqualification for Charges 2 and 5 will run concurrently.  The disqualification period of Charge 4 will run from today.  The disqualification of Charge 3 will run consecutively to the period of disqualification of Charges 2 and 5.  That is a total disqualification of 9 years’ disqualification.  This disqualification will run consecutively to the disqualification periods of E3921/2011 and KC1467/2013. 

31.The defendant should be disqualified until the year 2027.  I order a re-test under section 70 of the Road Traffic Ordinance. That means the defendant cannot drive after the disqualification period expires until he has passed his test again.

32.The prison terms of Charges 2 to 5 would be served concurrently as it is part and parcel of a one continuing event.

33.Charge 1, the handling of the stolen vehicle, is not related to the defendant’s driving competency and manner.  However, I will take into account the totality principle.

34.To reflect an overall culpability of all five offences together, I order 8 months of Charge 1 to run consecutively to Charge 5 and the balance concurrently.  I impose a total sentence of 3 years and 4 months.