HKSAR v. U PUI HANG

DCCC 431/2022

[2023] HKDC 563

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 431 OF 2022

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REASONS FOR SENTENCE

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1.  The D pleaded guilty to seven charges:-

(1) Taking conveyance without authority

(2) Possession of dangerous drugs (traces of ice)

(3) Driving a motor vehicle with a specified illicit drug in his blood, namely, 0.56 microgramme of ice per milliliter of blood

(4) Dangerous driving

(5) Driving an unlicensed vehicle

(6) Using a motor vehicle without third party insurance

(7) Driving while disqualified

Summary of facts

Background

2.  PW2 confirmed that he had been instructed by PW1 (the car owner) to pick up the Car from Ah Kei in January 2022. PW2 towed the Car from Ah Kei’s garage to Tun Yu Road and left the Car unlocked with the key placed inside the Car.

The Incident

3.  At about 0003 hours on 2 February 2022, the police were conducting traffic enforcement action on a police vehicle equipped with the Mobile Automatic Number-Plate Recognition (M-ANPR) and ProVida and the devices detected the vehicle license of the Car had been expired (Charge 5).

4.  The police officers intercepted the Car at a road shoulder in Tuen Mun Road.

5.  When the police officers approached the Car, the Car suddenly sped off and drove away towards Tuen Mun direction.

6.  The police thus gave chase and requested multiple times the Car to stop through a loudspeaker. The Car continued to drive off along Tuen Mun Road without stopping.

7.  Eventually at about 0010 hours, the Car arrived at a dead end in Sham Tsz Street and stopped.

8.  During the course of the chase, the Car was observed to, inter alia, have: -

(1) exceeded the speed limit for multiple times;

(2) travelled at a speed up to about 135km/h at a point (when the speed limit of Tuen Mun Road was 70km/h);

(3) failed to stop despite multiple commands and/or warnings by the police;

(4) weaved in and out between vehicles;

(5) driven past red lights;

(6) driven on the opposite lane against the flow of the oncoming traffic;

(7) overtaken a double-decker Citybus (“the Bus”) forcibly despite the road was blocked by the Bus; and

(8) collided with the Bus when overtaking it (Charge 4).

9.  After stopping the Car, the defendant and his passenger also alighted from the Car, the defendant fled immediately, but was soon subdued by the Police.

Investigations

10.  The police searched the Car and found in the compartment below the steering wheel a transparent resealable plastic bag that contained traces of a solid containing ice (Charge 2).

11.  Rapid Oral Fluid Test was conducted with the defendant at scene and the defendant was tested positive for ice. The defendant was arrested and cautioned.

12.  Upon enquiries, it was revealed that the defendant was not the registered owner of the Car and it was taken without the knowledge of the owner (Charge 1).

13.  It was also revealed that the defendant had been disqualified from holding or obtaining a driving license at the material time (Charge 7).

14.  The defendant was then arrested for six offences including “taking conveyance without authority”, “dangerous driving”, “driving whilst disqualified” and “possession of a dangerous drug”.

15.  Under caution, the defendant stated inter alia that he had taken the Car from Tun Yu Street at 3 pm on 31 January 2022 and the key was placed therein.

16.  The defendant was brought to Yan Chai Hospital and blood sample was taken from him in the hospital at about 0439 hours. Government Chemist subsequently confirmed that the defendant’s blood sample contained 0.56 microgramme of methamphetamine per milliliter of blood (Charge 3).

Video-recorded Interview

17.  In a video-recorded interview, the defendant stated inter alia the following under caution: -

(1) He had stolen the Car from Tun Yu Street at 3 pm on the 31 January 2022.

(2) He knew about the location of the Car from a friend, but he did not know the owner of the Car.

(3) He picked up his friend in Tin Shui Wai in the afternoon and they went to Tsuen Wan together for joyriding and planned to return it thereafter.

(4) He was afraid of when being intercepted as he had been disqualified until 2023, so he sped off.

(5) Whilst speeding off, the offside door of the Car was hit by a bus.

(6) He admitted that the pack of drugs found in the Car belonged to him and it was the residue after his consumption before driving in the afternoon on 1 February 2022.

(7) He was not aware that the vehicle license of the Car had expired.

Disqualification of the defendant

18.  The defendant was last disqualified by the court on 18 July 2019 from holding or obtaining a driving license for 3 years. He was further ordered to be re-tested.

Third Party Insurance (Charge 6)

19.  Further, the relevant third party insurance policy of the Car expired on 1 February 2022.

Criminal record

20.  The defendant has six previous court appearances resulting in 23 criminal convictions between 2013 to 2019.

2013	•  Possession of dangerous drug
2016	•  Possession of dangerous drug •  Driving without 3rd party insurance •  Driving without a license •  Driving with concentration of specified illicit drug
2/2017	•  Possession of dangerous drug •  Using a document with intent to deceive •  Dangerous driving •  Failing to stop after accident •  Driving without license •  Driving without 3rd party insurance •  Driving unlicensed vehicle
11/2017	•  Driving while disqualified •  Driving without 3rd party insurance •  Driving unlicensed vehicle •  Using forged documents (2 times)
7/2019	•  Possession of dangerous drug •  Dangerous driving causing grievous bodily harm •  Driving while disqualified •  Driving without 3rd party insurance •  Possession of prohibited weapons •  Driving a motor vehicle with registration mark not conforming schedule four

Traffic convictions

21.  Apart from the above convictions, the defendant also has the following convictions: -

(a) driving in excess speed in 2015 and 2016

(b) failing to comply with traffic signals in 5/2016

(c) crossing continuous white line with broken white lines in 7/2016

Antecedent/ Mitigation

22.  The defendant is now aged 29 years old, single and worked as a car technician earning about $12,000 per month. His counsel told me that he is remorseful and he will not commit the same offences again as he understands that it involves other road user and pedestrians.

23.  The defence invited this court to impose a concurrent sentence for all charges.

Sentence

24.  Before the commencement of the proceeding, I asked the defence if the defendant has any objection for me to handle this case as I have passed sentences on him previously in Tuen Mun Court.

25.  The defendant confirmed with Mr Cheung that he has no objection for this court to handle this case. Nonetheless, I must say that I have no recollection of the facts of those cases as they were way back in 2016 and 2017.

26.  Turning to the sentences of each charge, I first dealt with: -

Charge 1 - Taking conveyance without authority

27.  The maximum sentence is 7 years; the defendant did not have any similar record to this charge.

28.  From the summary of facts, it said that PW2 parked the car at Tun Yu Road unlocked with the car key still placed inside it. The defendant said under caution that he learned from his friend about the location of the car and he took it for a joy ride. He intended to return the Car after it.

29.  The defence quoted the case of R v Tam Simon HCMA 489 & 490 of 1996.  In the judgement of that case, the court said that: -

“It does appear that there can be a wide range in the sentence for such offence, ranging from the case of a person taking a car for a joy-ride at one end to a person taking a car in connection with the participation of a serious crime at the other.”

30.  In the present case, the defendant was simply not qualified to drive as he was on a disqualification order and a re-test order. What the defendant did was an affront to the law and a blatant disregard for a court order.

31.  In such circumstances, I take 12 months as the starting point, reducing to 8 months after 1/3 discount.

Charge 2 - Possession of dangerous drugs, that was the traces of ice

32.  There were traces of drug found in the car. The defendant admitted that it was the leftover after his consumption.

33.  As stated in the judgement of HKSAR v Muhammad Waqas CACC 272/2017 that at paragraph 72  “that the quantity of narcotic was “insufficient to be measured or used”.”

34.  From the defendant’s criminal record, I can see that he has 4 previous similar convictions. It is obvious that the defendant has not yet overcome his drug addiction problem since 2013, when he was about 19 years old.

35.  As such, I consider that a starting point of 9 months is appropriate, I reduce the sentence to 6 months’ imprisonment after 1/3 discount.

36.  Since charge 1 and 2 are separate and distinct offences, I order these charges to run consecutively. That arrives at a sentence of 14 months’ imprisonment. (8 + 6 = 14)

37.  As to charge 3 to 7, they are the driving offences which took place on 2/2/2022. Two days after the commission of the first offence.

38.  I have reference to the case of HKSAR v Yip Sing Yeung CACC 216/2021 , the appellant was convicted upon his guilty plea for 4 charges: -

(a) Dangerous driving - drove a rented private vehicle past a police road block dangerously at a high speed, subsequently crashing into a barrier, severely damaging the vehicle. Starting point 30 months was upheld and disqualified for 5 years.

(b) Driving under the influence of ice - received a sentence of 18 months after discount.

(c) Driving without a valid license - fine $1,500.

(d) Driving without 3^rd party insurance - a sentence of 8 months after discount. Disqualified for a period of 3 years.

(e) All sentences and disqualification periods are to run concurrently.

Charge 3 - Drug driving

Charge 4 - Dangerous driving

39.  As stated in the summary of facts, there were 0.56 microgrammes of methamphetamine per milliliter of blood presented in his body. He was under the influence of drugs during the time of driving. It is obviously dangerous for him to drive.

40.  He must know the effect in his body after taking ice which can impair his judgement of driving and driving skills. As said in the judgement of HKSAR v Chan Hon Hoi [2011] 1 HKLRD 808 that “driving under the influence of drugs can be more serious than dangerous driving.”

41.  On the other hand, his driving manner was totally horrendous. I have the opportunity to view the CCTV from the police car camera with the consent of the parties in the open court. I can see during the 7 to 8 minutes of police chase, the defendant was driving at a high speed, from 127 to 142 km/h, the police shouted in loudspeaker to ask the defendant to stop numerous times, but he ignored the police warnings. He jumped red lights several times, weaved in and out between vehicles, drove on the wrong side of the road, against the oncoming traffic, I can hear that cars sounded their horns to warn the defendant. Worse still, when the Bus stopped at a junction, the defendant overtook the Bus by forcefully squeezing through the limited space and scratched the right front corner of the bus.

42.  The prosecution cannot provide the information of the total distance of that 7 to 8 minutes’ pursuit. Suffice to say that at a speed of about 135 km/hour, it should cover a long distance. Speed limits on that part of the road was only 70km/h.

43.  One can only say that it was sheer luck that there was no accident occurred during the chase. Otherwise, the consequence could be dead serious and disastrous to all the road users. A driver in control of a vehicle can turn into a lethal weapon by driving irresponsibly. When accident happens, it can kill/main the road users and his own passenger.

44.  Needless to say, the defendant was fully aware that the police vehicle was right behind him, his driving manner also posed great risk and dangers to the police who were given the duty to chase and stop him.

45.  In both of the charges, there are aggravating factors to be considered: -

(a) His poor criminal record;

(b) He ran away from the car as soon as he stopped the vehicle at a cult de sac of a road to avoid police arrest;

(c) Driving without insurance covered;

(d) Driving in breach of a court order; and

(e) Purposely driving in a dangerous manner when there was a front seat passenger. In essence, the front seat passenger did not have a choice in that 7 to 8 minutes when the defendant was in control of the car. (See paragraphs 26 and 27 of the Secretary of Justice v Tam Ying Yuen CAAR 11/2022 ([2023] HKCA 243))

46.  Turning to his previous conviction of the same offence in charge 3 was in December 2016, the present offence was committed in February 2022, there was a lapse of 5 years.

47.  According to S39K (6) that the court may deal with charge 3 as the offence as a first conviction.

48.  The defence did invite this court to treat the defendant as the first time offender for charge 3.

49.  I disagree.

50.  The word “MAY” empowered this court with a discretion not to treat the defendant as a first time offender of this section despite the fact that there was a lapse of time of 5 years.

51.  In view of the D’ criminal records, as he repeatedly committed driving offences and drugs offences since he obtained his driving license in 2015. The defendant is clearly a repeated and persistent offender.

52.  As said in the judgement of HKSAR v Yip Sing Yeung CACC 216/2021 at paragraph 22 that “given the applicant’s previous extensive and similar criminal record, it was not appropriate for the judge to exercise that discretion in the applicant’s favour.”

53.  Against this background, I refuse to exercise the discretion to treat the defendant as a “fresh offender” in charge 3.

54.  As to charge 4, he has one previous conviction of dangerous driving in 2017 and one dangerous driving causing grievous bodily harm in 2019. Since the offence of dangerous driving is committed in the circumstances of aggravation, the maximum sentence and disqualification period are each increased by 50%. (S37 (2D) refers.)

55.  S37 (2E) of the Road Traffic Ordinance, Cap 374 stated that circumstances of aggravation is the present of illicit drugs in the defendant’s blood.

56.  From 2016 to 2019, the defendant had 4 previous cases which involved driving offences, it is clear to me that he has not learnt from past experiences, a deterrent sentence is called for. He committed the present offence only one year after he was released from prison.

57.  Having said that I do not mean that the defendant is subjected to a second punishment of his past misdeed. He must be deterred in order to protect the public at large.

58.  There is no sentencing guideline in these charges, but the general principle is one of deterrence and to “ instil social responsibility on the driver” (paragraph 10 of Yip Sing Yeung.)

59.  As stated in the case of HKSAR v Chan Hon Hoi [2011] 1 HKLRD 808 that:

“23. Vehicles, in the hands of irresponsible drivers, can be lethal weapons… but can also kill and/or maim, …

…

27. Drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence. …”

60.  Against this background, I consider that: -

(a) Charge 3 - A starting point of 27 months for charge 3 is appropriate, given 1/3 discount, the sentence is reduced to 18 months. I also order the defendant to be disqualified from driving all vehicles or to obtain driving license for a period of 5 years.

(b) Charge 4 - A starting point of 30 months for charge 4, given 1/3 discount, the sentence is reduced to 20 months. The defendant is also ordered to be disqualified for a period of 5 years.

(c) Both sentences and disqualification orders in charge 3 and 4 are ordered to be run concurrently.

Charge 5 - Driving an unlicensed vehicle

61.  This is the third time that the defendant had committed the same offence. His last two convictions were in February and November 2017 respectively.

62.  The maximum sentence for subsequent convictions in charge 5 is a fine at level 3 and 6 months’ imprisonment for a second and subsequent convictions.

63.  In view of the circumstances of the case, I take 4.5 months as the starting point and reduce to 3 months after 1/3 discount.

Charge 6 - Driving without a third party insurance

Charge 7 - Driving while disqualified

64.  The defendant has 4 and 3 previous convictions for the offence in charge 6 and 7 receptively.

65.  He was ordered to be disqualified by the court in July 2019 for 3 years. In 2/2022, when he was arrested for the present offences, he was still under the disqualification period, when he continued to drive, it is a flagrant breach of the court order.

66.  Further, the insurance policy for the vehicle had expired already. That was one day before his arrest.

67.  As stated in the judgement of R v Lui Wing Han [1997] HKCU 224 that: -

“Driving while disqualified and hence, without third party insurance, is a very serious offence as other innocent road users who are injured in any traffic accident may be left without any compensation.”

68.  Simply put, the defendant’s vehicle is not covered by insurance. The defendant time and time again just ignored the consequences of his legal liability.

69.  In such circumstances, I consider: -

(a) Starting point of 12 months for both Charge 6 and 7, reduce to 8 months after 1/3 discount.

(b) Disqualified for a period of 3 years in both charges.

(c) As to disqualification period in charge 7: -

S44(3) of the Road Traffic Ordinance, Cap 374 stated that “the period of any disqualification under subsection (2) shall be in addition to any other period of disqualification ordered under any other provision of this Ordinance.” (HKSAR v Tsui Wai Nin HCMA 1294/2000 refers)

(d) As such, disqualification period in Charge 7 is to run consecutively to other charges.

The total period of disqualification order: -

70.  The defendant is ordered to be disqualified from holding a driving license or driving any type of vehicles.

Charge 3: - 5 years

Charge 4: - 5 years

Charge 6: - 3 years

Charge 7: - 3 years

71.  Disqualification order in respect of charge 3 to 6 are to run concurrently. A total of 5 years.

72.  3 years disqualification order from charge 7 is to run consecutively to charge 3 to 6.

73.  The total period of disqualification order is 8 years. (5 + 3 = 8)

No driving improvement course order

74.  The defendant was ordered by the court in DCCC 71/2019 to re-take his driving test again before obtaining a driving license.

75.  At the time of arrest, he was still in the disqualification period, therefore, he has not yet retake his driving test, no driving license has been obtained.

76.  In this connection, the re-test order is still in force. The defendant is not allowed to obtain a driving license until he passes the driving test at the completion of the period of disqualification.

Totality

77.  I order sentences in charge 3 to 7 to run concurrently. That is a total of 20 months.

78.  I also order the 14 months from charge 1 and 2 to run consecutively to charge 3 to 7.

79.  That arrives at a total sentence of 34 months. (20 + 14 months)