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DCCC 547/2022
[2023] HKDC 408
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 547 OF 2022
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| Before: |
H.H. Judge G. Lam |
| Present: |
Ms. Catherine Xiao, PP, of the Department of Justice, for HKSAR. |
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Mr. Robert Chan instructed by M/s Wong & Co., assigned by the Director of Legal Aid, for the defendant. |
| Offences: |
(1) & (9) Taking conveyance without authority （未獲授權而取用運輸工具） |
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(2) & (7) Driving without a valid driving licence（駕駛時無有效駕駛執照） |
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(3) & (8) Using a motor vehicle without third party insurance（沒有第三者保險而使用汽車） |
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(4) Dangerous driving （危險駕駛） |
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(5) Failing to report an accident involving damage （沒有報告涉及損害的意外） |
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(6) Failing to stop after accident whereby damage was caused to other things（發生意外以致其他東西受到損害後沒有停車） |
REASONS FOR SENTENCE
The defendant pleaded guilty to 9 charges of driving-related offences. He was only 16 at the time of all 9 offences. He did not have a valid driving licence. Respectively in September and November 2021, the defendant took his friend's car for a joyride when that friend was drunk.
Summary of Facts
The 1st incident (Charges 7 to 9)
2. Mr. Wu (PW1) was the registered owner of a private car XM6579 (Car 1). He held a valid 3rd party insurance policy for Car 1.
3. On 10 September 2021, PW1 became drunk during dinner with the defendant. He did not, however, authorize anyone to drive Car 1.
4. About 10:30 in that evening, WPC 25509 (PW3) saw a male boarding Car 1 near Wai Chi Street Playground in Shek Kip Mei, Kowloon. The defendant was driving Car 1 at that time. This is Charges 7 and 9.
5. A few minutes later, PW3 intercepted the defendant at Wai Chi Street near the junction with Wai Lun Street. The key of Car 1 was found inside the vehicle. Since the defendant did not have a valid driving licence, he committed the offence in Charge 8 as well.
6. PW1 found his car key missing on 11 September 2021.
The 2nd incident (Charges 1 to 6)
7. In the evening on 12 November 2021, Mr. Ng (PW5) rented a private car VT1310 (Car 2) from a car rental company for a month. Car 2 was covered by 3rd party insurance.
8. About 8:00 p.m. on 13 November 2021, PW5 was having dinner with the defendant in Shek Kip Mei. PW5 told the defendant that he had rented a car and had parked it at some place nearby. PW5 placed the key of Car 2 on the table. The key was labelled with Car 2's plate number.
9. PW5 became drunk during dinner. He did not authorize the defendant to drive Car 2 because he knew that the defendant did not have a driving licence.
10. About 3:15 a.m. on 14 November 2021, the Police set up a road block near Chainage 11.1N of Tsing Kwai Highway.
11. About 4:07 a.m. the same day, Car 2 was approaching the road block. Ag. Sgt 9689 (PW8) directed it to stop. He saw a male driver, 3 passengers and a dog in Car 2. This is Charges 1 and 2.
12. Despite PW8 and Sgt 34369 (PW9) shouting at it to stop, Car 2 did not stop; it sped up and went through the road block instead.
13. Two police vehicles (PV1 and PV2) immediately gave chase with their sirens and flashing lights turned on. PW9 was on PV1; whereas PW8 and PC 6524, PV2.
14. The pursuit of Car 2 began at Tsing Kwai Highway and went through Cheung Tsing Tunnel and Cheung Tsing Highway. It continued onto Lantau Link, North Lantau Highway, Shun Long Road and Tuen Mun-Chek Lap Kok Tunnel Road. Car 2 turned into Lung Fu Road in Tuen Mun around 4:17 a.m. and reached Hoi Wong Road about 2 minutes later. The pursuit continued in Tuen Mun on Wu Chui Road, Wu Shan Road, Lung Mun Road and Tin Hau Road. Finally, Car 2 turned into Nan Fung Industrial City, No.18 Tin Hau Road, Tuen Mun ("Nan Fung") around 4:28 in the same morning. The pursuit lasted for about 20 minutes covering a total distance of about 42 km.
15. When being pursued by both PVs, Car 2 was driven at extremely high speed. Based on the speed displays on PV1 and PV2, the speed of Car 2 must have reached 200 km/h, 140 km/h, 170 km/h, 130 km/h, 150-160 km/h and 90 km/h at different road segments of the pursuit.
16. The driver of Car 2 ignored the sirens and flashing lights of both PVs as well as repeated verbal orders to stop announced through the PVs' loudspeakers. He also jumped multiple red lights; drove in an aggressive and dangerous manner to prevent the PVs from overtaking Car 2; disobeyed traffic signs and road markings (including crossing double white lines; making an unlawful U-turn; and driving against the traffic direction). This is Charge 4.
17. Upon reaching Nan Fung, Car 2 was driven through the bar of the exit gate and went inside against the traffic direction. It then came out of the entrance and broke another bar of a gate. This is Charges 5 and 6.
18. Car 2 was later found outside Luen Cheong Can Centre, No.8 Yip Wong Road, Tuen Mun ("Luen Cheong"). No one was in the vehicle.
19. About 9:15 in the same morning, PW8 intercepted the defendant. He told PW8 where he had placed the key of Car 2. He said he had hidden the car key because he was afraid of being caught. PW8 arrested the defendant around 9:47 that morning. Since the defendant did not have a valid driving licence, he committed the offence in Charge 3 as well.
20. Under caution, the defendant admitted having stolen Car 2 from a friend. About 8:30 in the evening on 13 November 2021, he was having dinner with the owner of Car 2 at Shek Kip Mei. He stole the key of Car 2 and drove it away when the owner was drunk. The defendant also admitted that he did not have a driving licence. He took his friend's car for fun and his friend did not know about it.
21. In his video recorded interview, the defendant explained how he committed Charges 1 to 6. Regarding Charge 1, he claimed that he was having dinner with PW5. PW5 told the defendant that he had recently rented Car 2 and it was parked near Berwick Street. PW5 placed the car key on the table. PW5 became drunk and left by taxi. The defendant took the car key and went to Berwick Street. He drove Car 2 to Cheung Sha Wan and picked up some friends for a joyride. Regarding Charges 5 and 6, the defendant claimed that upon reaching Tin Hau Road, there were no other ways to go; he could only drive into Nan Fung. He accidentally hit the gate barriers. He did not stop because he was scared and did not know what to do. He did not call the Police because he was being chased by them.
22. The car cameras of Car 2 and PV1 captured the journey and pursuit of Car 2 from Tsing Kwai Highway to Nan Fung. The CCTV footage of Nan Fung captured Car 2 breaking the 2 gate barriers.
23. The car camera of Car 1 captured PW2 boarding Car 1 near Wai Chi Street Playground until PW3's interception of the defendant.
Mitigation & Sentence
24. The defendant turned 18 nine days ago. He has a clear record. He was 16 when he committed the offences in this case. Defence counsel Mr. Chan informed me that the defendant is educated up to F.3 level. He resides with his parents and an elder brother. He did not have a job at the time of the offences.
25. In mitigation, Mr. Chan submitted that this case began when the defendant foolishly took a friend's car for a joyride. When he encountered the police road block, he panicked and tried to get away. The defendant now understands the seriousness of what he did and is truly remorseful. He accepts that there is no excuse for what he did. Mr. Chan stressed that the defendant has been remanded in jail custody for 16 months since mid-November 2021. If the court imposes a Training Centre Order, his period of detention may well be longer than the actual time he would need to serve in prison if he was sentenced to imprisonment. I will bear this in mind when I determine the appropriate punishment for the defendant.
26. I have viewed the footage of the pursuit of Car 2. The defendant's driving manner was beyond appalling. He drove in such a dangerous way in order to avoid apprehension by the Police. It would not be exaggerating to say that he had disobeyed pretty much all the traffic regulations, signs, signals and road markings along the way, needless to say the extremely high speed driving. It was most fortunate that he did not hit any pedestrians or crash into any vehicles.
27. There is no evidence suggesting that the defendant's driving of Car 1 and Car 2 had any criminal purposes attached. I accept that he did so as a frolic, but his frolic went way out of line this time. Other than his appalling driving manner in relation to Car 2, he committed the offences in the 2nd incident whilst on bail and just 2 months after he got into the same kind of trouble in the 1st incident in relation to Car 1. The defendant clearly lacks any sense of discipline.
28. I do not for one moment praise the defendant's driving manner; however, his ability to control an automobile as an unlicensed teenager impressed me. The defendant seems to be gifted in driving. If he applies his driving talent and keen interest in automobile appropriately, he would still have a bright future.
29. Comments contained in the Training Centre Report are positive. He has admitted his culpability to the assessing officer and has also acknowledged his fun-seeking character which attributed to the commission of the present offences. The assessing officer indicated that the defendant was unable to provide a concrete rehabilitation plan. He finds him mentally and physically fit for Training Centre and considers him suitable for detention in a Training Centre.
30. As a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders. I cannot overlook the defendant's need for rehabilitation. I have reminded myself that correctional institutions such as Rehabilitation Centres, Detention Centres and Training Centres exist for the benefit of young offenders. These institutions play an important role in our penal system.
31. I have borne in mind the fact that the defendant has been remanded in jail custody for 16 months and the likely prison term an offender over the age of 21 would get in the present case. The training period in a Training Centre ranges from 6 months to 3 years[1]. When the defendant will be released depends on his performance.
32. After careful consideration, I have decided to make a Training Centre Order, which will be the sentence for all 9 charges. I believe a Training Centre Order will benefit the defendant most in terms of disciplinary training, rehabilitation and punishment. Hopefully, he could acquire some vocational/academic qualifications or learn a craft during his training period.
Other orders
33. A disqualification order is inevitable for Charge 4. I have borne in mind the comments made by the Court of Appeal generally on disqualification orders in SJ v Hung Ling Kwok [2010] 4 HKLRD 365 and HKSAR v Chan Kim Ching CACC 69/2014[2]. Since the defendant has no similar conviction, the disqualification period is not less than 6 months[3]. Bearing in mind the dangerous level of his driving manner, I make a disqualification order of 2 years for this charge, which will start to run from the date of sentencing[4].
34. For Charges 3 and 8, the defendant's unlicensed driving without adequate protection of insurance renders him a serious threat and danger to other road users. Hence, for Charge 8, I make a disqualification order of 12 months[5]; and for Charge 3, a disqualification order of 18 months, both of which shall run from the date of conviction[6].
35. In order to rectify the defendant's reckless and irresponsible behaviour in relation to his driving, I should order him to complete a Driving Improvement Course. But since he has no driving licence, if he wants to drive legally, he needs to start learning from scratch. Thus, I do not see the need for him to complete a Driving Improvement Course. I make no order in this regard for Charge 4.
[1] Section 4(2) of the Training Centres Ordinance (Cap.280).
[2] An unreported Chinese judgment.
[3] See section 37(2) and (2A)(a) of Cap.374.
[4] Since the defendant has no previous conviction of a "relevant scheduled offence", by virtue of section 69A(1)(b) of Cap.374, the entire section 69A does not apply. Hence, the court has no power to order the disqualification period not to start to run until he finishes serving he prison term.
[5] The disqualification period shall be not less than 12 months or more than 3 years.
[6] Section 4(2)(a) of Cap.272.
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