HKSAR v. Ghulam Mustafa

DCCC 1068/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1068 OF 2014

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Reasons for Sentence

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1.The defendant is facing four charges: Charge 1, dangerous driving; Charge 2, using a motor vehicle without third party insurance; Charge 3, driving without a valid driving licence; and Charge 4, driving a motor vehicle with any concentration of a specified illicit drug. He pleads guilty to Charges 1, 3 and 4.

2.Initially, he pleaded guilty to Charge 2. During the court’s probing as to the supporting facts of the charge and the basis of the defendant’s plea, it transpired that the propriety of the plea might be questionable.  The defendant then entered a plea of not guilty to this charge.  The prosecution saw fit not to proceed with the charge.  Upon the application by the prosecution, the charge is left in court file, not to be proceeded with without leave of the court.

The prosecution case

3.On 21 September 2014, police officers were patrolling along Kam Tin, Yuen Long in an unmarked police vehicle with a video recording system installed on board.  At about 3.19 am, a private vehicle bearing registration No ST 7756 (“the private car”) driven at an unusually slow speed aroused the attention of the officers.  Suddenly it made a right turn towards Yuen Long by crossing a double white line.  Police officers switched on the lights and siren of the police vehicle.  They also used loud hailer to instruct the private car to stop.  The private car did not stop but immediately accelerated.  Police officers then gave chase.

4.The chase lasted for about 26 minutes.  During the chase, the speed of the private car reached up to 202 kilometres per hour as recorded by the police vehicle’s video recording system.  The private car jumped nine red lights, crossed 12 double white lines, failed to comply with two road markings and one traffic sign, and drove on the wrong side of the road once.  Police officers also used a loud hailer to instruct the private car to stop in both Cantonese and English. 

5.At 3.45 am the private car lost control and crashed against the railings.  The defendant was on the driver’s seat with a pregnant female Madam Yau sitting next to him.  Madam Yau had minor injuries at her forehead and right elbow. 

6.During the chase, two speeding cameras on the road captured the private car driving at 182 and 184 kilometres per hour at Sha Tin Highway and Fan Ling Highway respectively.  The speed limit there was 100 kilometres per hour.

7.Upon a radio check, it was confirmed that the defendant’s driving licence expired in 2008.  The defendant was arrested and cautioned at the scene.

8.A blood specimen was taken from the defendant with 0.49 ug/ml of methamphetamine detected in his blood.

9.The defendant was the registered owner of the private car. 

Personal Background and Mitigation

10.The defendant is aged 42.  He has two criminal convictions, one of which being possession of dangerous drug for which he was given a suspended sentence on 11 August 2014.  There is no dispute that when he committed the present offences, he was in breach of the suspended sentence.  He also had traffic convictions record for careless driving and record for fixed penalty tickets. 

11.In mitigation, Mr Nasir, the defendant’s solicitor, tells the court that the defendant is living with his girlfriend Madam Yau who was the passenger on board the private car.  Madam Yau was one month pregnant at that time.

12.In his written submission, Mr Nasir informs the court that the defendant was a Pakistani who came to Hong Kong in 1990.  He is a construction worker earning $12,000 a month.  Mr Nasir accepts that the present case was clearly a bad one, but says it cannot be regarded as the worst of its kind.  He says the defendant had only consumed the drugs the day before. 

13.It is submitted that no police officers or pedestrians were injured, nor was there a collision with other vehicles.  There is also no evidence that any property was damaged though the defendant’s vehicle crashed into the railings.  He has no record for similar offences since he obtained his driving licence in 1995.  In this connection the defendant was out of character.  The court is told that the defendant is now very remorseful.

14.Criticising Charge 4 as a duplicity of Charge 1, Mr Nasir asks the court to consider the principle of totality and order concurrent sentences for all the offences.

15.He draws my attention to two Court of Appeal cases and one District Court Reasons for Sentence¹.  Mr Nasir has industriously prepared a table setting out the facts of the cases for comparison purpose. 

16.In respect of Charge 3, it is put forward in the written submission that the defendant reported loss of the driving licence at Sheung Shui Police Station in 2013 and he could not recall that it had expired.  In this regard, the defendant gave evidence that he had lost his driving licence and ID card.  Later, he applied for replacement of his ID card but not his driving licence as he was unemployed and had no money.  I find the defendant’s evidence unconvincing. 

17.His driving licence expired on 10 January 2008. At the time of the offence it had expired for about 6½ years.  It is incredible that a driver would have no idea at all for more than 6 years that his driving licence had expired.  Moreover, the defendant’s traffic record, which is not disputed, shows that he was driving and committing traffic offences from May 2005 to August 2008.  He would be expected to carry his driving licence during this period of time and had the opportunities to produce his driving licence to police officers when he was stopped and given the fixed penalty tickets.  He had therefore opportunities to view his driving licence. 

18.The defendant says he did not re-apply for a new driving licence because he had no money.  The explanation is contradicted by the Notice of Transfer of Ownership of Vehicle produced by the prosecution which shows that the defendant purchased the private car in this case for $10,000 on 16 September 2014.  I find that the only reasonable inference in this case is that the defendant knew his driving licence had expired. 

Charge 1

19.The maximum sentence for dangerous driving is a level 4 fine and imprisonment for 3 years.  The defendant committed this offence in circumstances of aggravation as at the time of committing the offence he had methamphetamine in his blood.  Under section 37(2D) of the Road Traffic Ordinance, the maximum sentence is increased by 50 per cent.  The maximum imprisonment for Charge 1 is therefore 4½ years’ imprisonment. 

20.The dangerous driving in the present case was a bad one.  When police officers switched on lights and siren using a loud hailer to give instruction to stop, the defendant did not comply with the instruction, instead he immediately accelerated.  Police had given chase for 26 minutes before the defendant’s vehicle lost control and crashed against the railings. It was clearly a deliberate non-compliance with the instructions of police officers.

21.During the chase, the defendant drove at excessive speed as high as double of the speed limit.  He jumped nine red lights, crossed 12 double white lines, failed to comply with two road markings and one traffic sign, and drove on the wrong side of the road.  These were blatant breaches of the road traffic laws.  It was also a total disregard of the safety of a pregnant passenger who fortunately only sustained minor injuries.

22.He had also consumed “Ice” which could influence his ability to control a car.  It was only sheer luck that the defendant’s vehicle did not collide with other vehicles causing serious casualty and damage to property. 

23.I have considered the cases cited by Mr Nasir.

24.In all the circumstances, I find that the only sentencing option is imprisonment and the appropriate starting point for Charge 1 should be 2 years and 3 months’ imprisonment.

25.I will allow one-third reduction for his plea of guilty.  The defendant is therefore sentenced to 18 months’ imprisonment on this charge.

26.There is mandatory disqualification for not less than 6 months and mandatory order for driving improvement course for Charge 1, unless there are special reasons for the court not to make such orders. 

27.Mr Nasir deals with these mandatory orders in his supplemental written submission.  He clarifies his written submission in court by accepting that there is no special reason not to disqualify the defendant.  However, he relies on the information obtained from the website of the Transport Department produced by the prosecution.

28.He submits that the defendant, having not renewed his driving licence for over 3 years, is obliged to take a re-test before he can drive again.  In such circumstances he should be regarded as a person not holding a full driving licence.  This can be treated as a special reason not to order the driving improvement course.   

29.Much time has been spent in establishing whether the defendant has to pass a driving test before he can obtain a new driving licence for him to drive.  In his supplemental written submission, Mr Nasir relies on section 8 of the Road Traffic (Driving Licences) Regulations, Cap 374B, as his legal basis to support his argument of the defendant’s position. 

30.With respect to Mr Nasir, I fail to understand how this regulation can assist his argument.  Section 8 deals with the eligibility for obtaining a full driving licence to drive the specific classes of vehicles set out in paragraph 1, such as a taxi, a bus and a specified purpose vehicle, etc.  The list of classes of vehicles does not include a private car which is the class of vehicle that the defendant was driving at the time of offences. 

31.Whether the legal basis of Mr Nasir’s proposition is right or wrong, it is however unimportant as Mr Choi, public prosecutor for the prosecution, having confirmed with the Transport Department, agrees that the defendant is now in such a position, ie, he has to pass a driving test before he can obtain a full driving licence to drive. 

32.Mr Choi also draws my attention to section 15(6) of the Road Traffic (Driving Licences) Regulations.  He, however, takes no view as to whether the re-test requirement can amount to a special reason for not ordering a driving improvement course.  I will therefore proceed to consider the statutory requirement of driving improvement course order on this agreed factual basis. 

33.In Secretary for Justice v Chan Hon Hoi CAAR 8/2010, the sentence on the respondent was increased by the Court of Appeal on an application for review of the sentences by the Secretary for Justice.  When the Court of Appeal imposed a re-test order under section 70 of the Road Traffic Ordinance, it also set aside the original order for driving improvement course made by the trial judge in view of the re-test order being imposed in the Court of Appeal.

34.While the Court of Appeal did not expressly state the reasons for doing so, the logic can be simple.  The defendant cannot drive before he passes the test.  He may never pass the test.  Before he can drive, there is no driving to improve.  An order for driving improvement course therefore serves no purpose in the circumstances.  I therefore make no order for driving improvement course.  I order disqualification for all classes of vehicles for 3 years

Charge 3

35.The driving licence had expired for a long time at the time of offences.  I find that the defendant knew he was not holding a valid driving licence.  I use 6 weeks’ imprisonment as a starting point and reduce it to 4 weeks for his plea of guilty.

Charge 4

36.Drug driving has been regarded as a very serious offence.  The maximum sentence for this offence is a level 4 fine and 3 years’ imprisonment. 

37.One thing favourable to the defendant is that the facts he admitted do not suggest that he was unable to control the car because of the influence of drug.  I will adopt 18 months’ imprisonment as starting point and reduce it to 12 months for his plea of guilty.

38.There is also mandatory requirement to order disqualification and driving improvement course for this offence.  I order disqualification for all classes of vehicles for 3 years.

39.I make no order for driving improvement course for reasons I have given. 

Total Sentence

40.Accepting that Charge 1 and Charge 4 being part and parcel of the incident and having considered the principle of totality, I order the imprisonment terms and disqualification orders in all the three charges to run concurrently.  The total term of imprisonment is therefore 18 months, and the total period of disqualification is 3 years, to run from today.

Activation of Suspended Sentence

41.The defendant was in breach of the order for suspended sentence made in Fan Ling 2888/14 on 11 August 2014 when he committed the present offences.  Having considered the principle of totality, I see no reason why the 4 weeks’ imprisonment should not be activated in full and to run wholly consecutively to the terms of imprisonment ordered in the present case. Accordingly, I make such order. 

1. HKSAR v. Pang Ho Yin, Patrick, CACC 283/2013;

HKSAR v. Lam Shun Choi, CACC 402/2012;

HKSAR v. Yeung Chi Tim, DCCC 587/2013