HKSAR v. Yeung Chi Tim

DCCC 587/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 587 OF 2013

---------------------

---------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.The defendant faced nine charges. He pleaded guilty to Charges 1 to 8 but not guilty to Charge 9. Upon conviction, Charge 9, the going equipped for stealing charge, was ordered to be kept on court file and not to be proceeded with without the leave of the court.

2.Charges 1 and 2 alleged that on 24 February 2013 the defendant was driving without a valid driving licence[1] and third party insurance[2].  Charges 3 to 8 arose from another incident occurred on 8 April 2013 in which he was alleged to be driving dangerously[3] (Charge 3) without a valid licence and third party insurance (Charges 4 and 5).  In the course of the incident, it was also alleged that he willfully obstructed PW1 in the due execution of his duty[4] (Charge 6).  A prohibited weapon[5], namely a nunchaku, a Chinese-style fighting iron (Charge 7) and an offensive weapon[6], namely a machete (Charge 8) were found inside the boot of the defendant’s car.

Facts

Charges 1 and 2

3.At 0123 hours on 24 February 2013, the defendant who possessed no valid driving licence but a learner’s licence was stopped in a police road block operation in Shamshuipo when he was allegedly having a joy ride with his friend.  He was arrested for Charges 1 and 2 and was later released on police bail in the sum of HK$4,000.

Charges 3 to 6

4.At 1017 hours on 8 April 2013, PW1, a police officer on motorbike patrol along Ma Tau Kok Road, saw a private car displaying registration number RS5309 (“the Car”) jumped red light twice, first at the junction of Kowloon City Road and again at the junction of Pau Chung Street at a speed of 10 to 20 km/h in excess of the speed limit of 50 km/h.  PW1 immediately switched on the siren and gave chase.

5.At the junction of Ma Tau Kok Road and Pak Tai Street, the Car had to pull up behind a taxi in the offside lane as the lanes were occupied by taxi stopping for the red light.  PW1 then drove up to the driver’s door and found that the defendant was at the wheel with no person on board.  The window on the driver’s side was opened.  At the same time, PW1 tried to intercept him but he refused to obey the command.  PW1 at once signaled the other cars to remain stationary in order to avoid him from moving forward.

6.After that, PW1 alighted from his bike and attempted to remove the ignition key of the Car but he immediately wound up the window.  PW1 withdrew his hand and opened the driver’s door.  He closed the door at once.

7.Suddenly the defendant put into reverse gear, PW1 jumped onto the kerb.  The Car then moved backwards at high speed.  As a result, the left rear of the Car hit the right front of a public light bus which had no passenger on board.  After 1^st collision, the Car moved forward hitting the railing on the offside kerb.  As a result, the front bumper of the Car was dislocated.

8.The Car did not stop but moved backwards at high speed again.  Eventually it hit the front of a stationary medium goods vehicle in the middle lane.  The impact from the collision causing that medium goods vehicle to move backwards hitting a taxi right behind.  The taxi had no passenger on board.

9.The Car then moved backwards swerving to the left and mounted the offside kerb hitting the railing again. Following that, the Car crashed from the offside kerb across the offside and middle lanes into the nearside lane.  The Car swerved abruptly to the left, swiping the offside of a stationary private car and travelled into near side lane against the traffic direction at a speed of about 50 km/h.  The Car finally turned right into Pau Chung Street.  PW1 lost sight of it.

Charges 7 and 8

10.At about 1020 hours on the same day, the Car was located by police at a parking space on Ma Hang Chung Road where it was about 200 meters away from the location in question.  At that time, the engine of the Car was still running but no one was found on board.

11.Upon search, a blue nylon bag containing one 12 inches long nunchaku, the subject matter of Charge 7, and one 26 inches long machete, the subject matter of Charge 8, were found inside the boot of the Car.

12.The incident had caused damage to 4 vehicles and the total repair cost was HK$24,800.

13.On the same day, the driver involved in the 1^st Collision was admitted into A&E Department of Queen Elizabeth Hospital.  He was diagnosed to have tenderness on his neck and back.

14.On 9 April 2013, the defendant was arrested.  During subsequent video- recorded interviews, he under caution admitted that he borrowed the Car from a friend named “Ah Shan” at 11pm on 7 April 2013 and that he received a bag containing the weapons in question from his friend “Ah Ping” for temporary storage at the boot of the Car.  He admitted the offences.

15.Upon examination, the nunchaku, weighed 482 grammes, was found to be comprised of 2 hollow steel handles, one of approximately 30 cm in length and the other of 27.5 cm in length, connected by a metal chain of approximately 19.5 cm.  The links on the chain were covered by adhesive tape.  It was commercially produced and purpose-built for use as a flail-type weapon.  It was also known as a Chinese style-fighting iron prohibited under the Prohibited Weapons Ordinance, Cap 217.

Sketches

16.At the hearing, Ms. Lam for the prosecution submitted 5 sketches to demonstrate the movement of the Car at the material time.  She confirmed that the CCTV footage as mentioned in paragraph 31 of the Summary of Facts did not depict the actual movement of the Car in the course of the incident.

Mitigation

17.The defendant aged 22 was educated up to Form 2.  His father aged 50 is a decoration worker and his mother aged 45 is a housewife.  He is the eldest among 3 siblings.  Prior to arrest, he worked as a causal decoration worker earning about HK$8,000 each month.

18.He has 4 previous criminal records.  In 2006, he was convicted of 3 counts of Robbery and 1 count of Theft for which he was put on a probation order for 18 months.  In 2010, he committed an offence of Conspiracy to Burglary and received a term of 2 years’ imprisonment.  In 2011, he was sentenced to 2 months for possession of dangerous drugs.

Sentence

19.For the offences in this case, there are no established sentencing tariffs.  I have carefully considered all the cases referred to by the prosecution and the defence[7].

20.As to Charges 1 and 2, they were committed when the defendant allegedly having a joy ride and at the time of the offences he had no similar previous record.  Hence I adopt a starting point of 6 weeks for Charge 1 and 3 months for Charge 2.  As to Charges 4 and 5, they were committed whilst on police bail.  I cannot lose sight of the fact that the victims involved in the incident were left without third party insurance protection. I adopt a starting point of 9 weeks for Charge 4 and 6 months for Charge 5.

21.For Charge 3 dangerous driving, Mr Ng, counsel for the defendant, with his customary industrious effort, referred me to HKSAR v Lam Shun Choi CACC 402/ 2012.  In Lam’s case, the applicant, in an attempt to avoid apprehension, drove through 3 sets of traffic lights with excessive speed and then drove onto the pavement where a pedestrian was hit.  The starting point of 2 years and 3 months was upheld.

22.The gravamen of our present case lies upon the facts that:-

(a) the defendant, without a valid driving licence, was an unqualified, incompetent and inexperienced driver;

(b) his driving was a “prolonged, persistent and deliberate course of very bad driving”. He irresponsibly drove through 2 sets of traffic lights in excessive speed. In order to avoid lawful apprehension, he put the Car in “reverse” at high speed against traffic direction, causing 3 direct and 1 indirect collisions involving 4 vehicles, in a crowded area. It was deliberate and, in my view, a ruthless and selfish disregard to the safety of PW1, other road-users and pedestrians, posing an imminent danger on the road;

(c) though minor injuries were caused to the public light bus driver, it was only fortuitous that there was no passenger on board of the bus and taxi involved in the collisions. By looking at the photos depicting the condition of the Car after the incident, it is not difficult to imagine that the force arising from the collisions and impact was extremely great;

(d) the offence was committed whilst on police bail.

23.Having considered the aggravating features of this case, I adopt a starting point of 2 years and 3 months for Charge 3.

24.Of Charge 6, the defendant willfully and repeatedly disobeyed and ignored the commands of PW1.  He demonstrated a complete disrespect to the law and law enforcement agent.  A sentence of deterrent effect should be imposed so as to send a stark message to the public that every police officer in the execution of his/her duty must be respected and protected.  The seriousness of the offence, in my view, is not dependent upon the number of police officer involved but upon the manner of which an offender obstructs the execution of police duty.  The defendant deliberately wound up the window, closed the driver’s door and put into reverse gear regardless of PW1’s safety.  The obstruction was not one-off, it was persistent.  I adopt a starting point of 12 months’ imprisonment.

25.Of Charges 7 and 8, I have examined the weapons in question.  The nunchaku is steel-made.  When used in an attack, the force which will be generated by an act of swinging can no doubt cause serious harm to others.  As to the machete, it is an offensive weapon per se.  It is a lethal weapon that can cause serious injuries or even death when it is being used in a fight or confrontation.  Furthermore, given the alleged background as to how the defendant came into possession of these weapons and his triad affiliation as stated in his Antecedent Statement, the risk of going into wrong hands is enormous and real.  I have considered all the cases referred to by Mr Ng[8]. However, the size and conditions of each weapon involved in different cases differs and the circumstances under which the offenders came into possession of them varies.  A direct comparison with cases of different factual matrix is of little assistance in sentencing.  Having considered all the circumstances, I adopt a starting point of 9 months for Charge 7 and 15 months for Charge 8.

Disqualification

26.Disqualification order is mandatory for Charges 2, 3 and 5 upon conviction.  Such order is “forward-looking and preventive”, instead of “backward-looking and punitive”. In considering the appropriate length of disqualification, the length of imprisonment term should be taken into account otherwise it may serve no actual and practical purpose.  Having considered all the circumstances, I impose a disqualification order for a period of 12 months for Charge 2, 4 years for Charge 3 and 18 months for Charge 5.  Since the defendant holds no valid driving licence, a driving test order is unnecessary.

27.To reflect his guilty plea, the respective sentences are as follows: Charge 1 - 4 weeks’ imprisonment; Charge 2 - 2 months’ imprisonment, together with a disqualification order from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months; Charge 3 - 18 months’ imprisonment, together with a disqualification order from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years; Charge 4 - 6 weeks’ imprisonment; Charge 5 - 4 months’ imprisonment, together with a disqualification order from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months; Charge 6 - 8 months’ imprisonment; Charge 7 - 6 months’ imprisonment; Charge 8 - 10 months’ imprisonment.

Totality

28.Regarding the totality principle, I order the sentences of Charges 1 to 5 be run concurrently, ie a total sentence of 18 months’ imprisonment.  The obstructing and weapons charges were not part and parcel of the driving offences.  They were separate matters. Having considered totality, I order 4 months of Charge 6, 3 months of Charge 7 and 5 months of Charge 8 be run consecutive to the overall sentence of Charges 1 to 5.  In the result, the defendant is sentenced to 30 months’ imprisonment, reflecting a notional overall starting point of 3 years and 9 months, together with a disqualification order from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years.