HKSAR v. SHAM PUI CHAK

DCCC 925/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 925 OF 2014

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Reasons for Sentence

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1.  The defendant was convicted before me after trial of two charges of dangerous driving, and on his own pleas of one charge of careless driving, one charge of driver failing to display standard registration mark, and one charge of using a defective vehicle.

2.  Facts are as follows.

3.  On 16 March 2014, at about 9.45 am on Route Twist, Yuen Long, the defendant was driving a dark-coloured motorcycle bearing registration mark PE 3892 and overtook a bus by crossing double white lines at a speed of about 90 kilometres per hour.  The speed limit was 50 kilometres per hour. 

4.  A police car was nearby and gave chase with siren and flashing lights on.  During the chase, the police driver never lost sight of the motorcycle.  Although at times he came close enough to the tail of the motorcycle, he was not able to see the licence plate usually to be found at the back of a motorcycle.  The motorcycle kept moving forward at speeds between 30 and 100 kilometres per hour and overtook various other vehicles whenever obstructed by crossing double white lines at speed.  Eventually, the police driver lost sight of the motorcycle when the latter just entered Kam Tin Bypass.

5.  The defendant on the same motorcycle was seen again in Kam Tin Road, Yuen Long bound, shortly after it disappeared. Initially, he was not travelling in excess of the speed limit of 50 kilometres per hour.   But when a police motorcyclist spotted it and turned around to chase it with siren and flashing lights on, the defendant speeded up to about 100 kilometres per hour and was travelling in the middle of two lanes going in the same direction with heavy traffic, occasionally finding himself in between two overlapping vehicles.  The police motorcyclist kept the defendant in sight and followed him to Au Tau Roundabout which the defendant entered at about 80 kilometres per hour.  Thereafter, the defendant came onto the approach road to Pok Oi Interchange.

6.  On the approach road, the defendant was travelling in the second lane initially at 100 kilometres per hour, but later slowed down to a stop at about 10 metres away from the roadblock ahead created by three other police motorcycles.  Ignoring police warning to stop the engine, the defendant moved forward again to about 1 metre from the roadblock, intending to slip through a gap between the roadblock and a green taxi in the first lane. However, as the roadblock was repositioning itself by moving towards the first lane, the defendant when moving into the first lane collided with one of the police motorcycles of the roadblock causing it and his own motorcycle to fall.   In the confusion, one other police motorcycle fell.  As a result of the accident, two police motorcyclists suffered injuries and their respective motorcycles sustained damage.

7.  The defendant was helped off his motorcycle by the police but found to be struggling and hence had to be handcuffed at the back and made to sit on the roadside.  When he calmed down, he was arrested for furious driving and no insurance and was cautioned.  Under caution, he said voluntarily, “I fled at Tai Shan only because (I) did not want to be caught (and requested) by Sir for a vehicle examination.  I did not intend to hit the police vehicles.”

8.  He was later taken to Yuen Long Police Station for a formal record of interview which contained a post-record of what he said at the scene and a series of questions and answers which he was asked and answered at the police station.  He voluntarily participated in the interview.

9.  From the defendant’s cautioned statements, the court found the following facts:

(a) He fled at Tai Mo Shan because he did not want to be caught by the police for a vehicle examination. He did not intend to hit the police vehicles;

(b) That morning, he went for a ride on his motorcycle PE 3892 from home to Route Twist at Tai Mo Shan. Later, he intended to return home;

(c) As he was in a rush to return home, he did overtake vehicles by cutting double white lines; he thought he had been speeding;

(d) He was travelling at high speed in between the first and second lanes of Kam Tin Road and passed by other vehicles at the same time; and

(e) At Pok Oi Interchange, he found so many police vehicles around. He was afraid of being caught and requested for a vehicle examination. He intended to drive slowly by the side but somehow he clashed into the police motorcycle or motorcycles.

10.  Upon examination, the defendant’s motorcycle was shown to have a rear registration plate not firmly secured and properly displayed; also, the obligatory reflectors were absent.

The defendant’s personal particulars

11.  The defendant was born in Hong Kong and is now 23 years old.  He was educated to higher diploma and worked as an airport ground staff prior to arrest.  He is single and living with his parents. 

12.  The defendant has no previous convictions though he has a fixed penalty matter in 2012 for driving in excess of speed limit by more than 30 kilometres per hour but not more than 45 kilometres per hour.

Mitigation

13.  Mr Duncan Percy and together with him Mr Simon Yip have the following plea in mitigation on behalf of the defendant.

14.  The defendants’ parents are in court to give support to him; and they are naturally concerned about what sentence will be handed down to the defendant. 

15.  A bundle of documents was handed up which include a letter from the employer which says it will continue to employ the defendant whatever the outcome; there were certificates of achievement which show that the defendant was someone who was engaged in healthy activities such as playing the piano, canoeing and swimming.  These certificates certainly show that the defendant’s parents have high hopes for him as a young man.  There was a letter from the mother’s employer, a dentist, which vouches to the fact that the defendant was a filial pious son and a person of good character and was willing to help others.

16.  The defendant since the incident had sold his motorcycle and is taking the bus to and from work from which he earns a monthly salary of $13,000 to $14,000 a month.  Each month he gave $6,000 to his mother for upkeep.  He worked in the airport as an aircraft loading controller. 

17.  The injuries caused to the two policemen were not serious and the damage to the two motorcycles amounted to about $18,000.

18.  The defendant is willing to pay compensation to the government to the amount of $10,000.

19.  The defendant is no longer a rider.  He has a good family and settled work.

20.  Defence asks for CSO and background reports.

21.  There are no special reasons why disqualification or driving improvement course should not be ordered against the defendant.  

22.  Given the defendant has income, he has the means to pay a fine for Charges 4 and 5. 

Sentences and reasons for sentences

23.  Dangerous driving is a serious offence, the maximum sentence being 3 years’ imprisonment.  Deterrence is certainly a consideration I need to take account of.

24.  For the purpose of sentencing, I shall consider Charge 1, Charge 2 and Charge 3 together because the subject matters behind them constitute an almost continuous course of conduct.

25.  The defendant’s conduct comprises prolonged speeding, repeated breaches of traffic regulations, multiple overtaking of other vehicles under precarious circumstances, failure to stop despite clear and unambiguous police warnings to do so and attempting to slip through a police roadblock.

26.  The total length of the police pursuits was in excess of 5 kilometres.  The pursuit under Charge 2 was in the midst of heavy traffic.  Fortunately, no one was injured and no property was damaged under Charges 1 and 2.  However, under Charge 3, two traffic policemen suffered slight injuries and there were minor damage to the two police motorcycles, all of these were as a result of the defendant’s conduct. 

27.  In the case of the defendant, given his multifarious conduct as outlined above in open defiance of the law, immediate custodial sentence is the only option.

28.  For these charges, having regard to totality, I shall adopt a global starting point of 18 months’ imprisonment.

29.  For Charges 1 and 2, that is the starting point that I adopt.  I shall deduct 3 months for his clear record.  There are no other valid mitigating factors.  I impose 15 months’ imprisonment for each of Charges 1 and 2.

30.  For dangerous driving offences, disqualification is mandatory in the absence of special reasons.  There are no special reasons here.  I impose for each of Charges 1 and 2 a 1-year disqualification order. The defendant is disqualified from driving all classes of vehicle for 1 year. 

31.  Under Charge 1 only, the defendant is in addition ordered to attend and complete a driving improvement course.

32.  For Charge 3, the careless driving charge, I adopt a starting point of 4 months’ imprisonment.

33.  The defendant pleaded guilty, so he is entitled to a one-third discount.  I give a little discount for his clear record.  There are no other mitigating factors.  In the result, I sentence him to 2 months’ imprisonment.

34.  All imprisonment terms are to be served concurrently; and all disqualification orders are to be served concurrently.

35.  For Charge 4, having regard to the means of the defendant and the plea of guilty, I shall impose a fine of $500.

36.  For Charge 5, again having regard to the means of the defendant and the plea of guilty, I shall impose a fine of $1,000.

37.  As the quantum that the defendant is willing to pay by way of compensation falls short of the cost of repair by a substantial margin, I decline to make a compensation order.