HKSAR v. CHAN KIT YING, NILSON

DCCC 1147/2017

[2018] HKDC 967

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1147 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges: firstly, dangerous driving; secondly, driving while disqualified; and thirdly, the consequent offence of using a motor vehicle without third party insurance.

2.  The offences occurred on 2 November 2017 in and around the northern New Territories.  The defendant was involved in what one could describe as a chase with police officers.  The defendant was driving along the Yuen Long Highway.  He was observed by two motorcycle police officers to be driving at a speed which they believed was in excess, or around 100 kilometres per hour, which is in excess of the speed limit for that road of 80 kilometres per hour.

3.  The police officers attempted to stop the defendant’s vehicle, and in fact were able to at one point near the Pok Oi Interchange.  It was after that that the defendant drove away.  He was pursued by the two police officers on motorcycles, travelling at one point at a speed estimated to be in excess of 120 kilometres per hour.  That was at a part of the road where the speed limit was only 50 kilometres per hour.  He was seen to cut between lanes abruptly, causing other vehicles to brake to avoid collision.  Finally, the defendant was stopped at a signal‑controlled junction, but he tried to drive off again, and in doing so, collided with the rear of a public light bus and the nearside of one of the police vehicles.  He was subdued after that.

4.  The chase itself lasted for around 4 kilometres.  There was some damage to the rear bumper of the PLB and the nearside body of the police motorcycle, and one of the chasing police officers was found to have sustained tenderness at his right wrist, presumably during the collision.

5.  The defendant was subject to a four-year disqualification from August 2016 to August 2020, so not only was he driving whilst disqualified, he was also using the vehicle without third party insurance.

6.  The defendant said at the time that the reason he took off was because he was disqualified.  There was in fact a passenger in his vehicle at the same time.

7.  The defendant is aged 26, has worked most recently on a construction site, where he operates machinery, and he has of late been remanded in custody for this offence.

8.  As far as his criminal record is concerned, he has some previous convictions and has been to drug addiction treatment centre in the past.  In 2016 the defendant received his four-year disqualification, and this was for offences of theft, using a motor vehicle without third party insurance, and driving without a driving licence.

9.  For the theft he was sentenced to 20 months’ imprisonment and received a disqualification for four years.

10.  Turning to these offences, the most serious offence the defendant faces is, of course, the 1st charge, the dangerous driving.  It is of course a serious offence, and the major basis for sentencing is the culpability of the defendant.  It is not a mechanical exercise of counting aggravating and mitigating factors.  The court must look at the overall picture and determine the level of culpability of the defendant.

11.  The most important factors would appear to be the fact that the defendant was disqualified at the time; that he took part in a chase that was less than some 4 kilometres; that he went to quite high speeds - 120 kilometres an hour - and weaved in and out of traffic.

12.  However, it can be seen from that description that some of the more serious aggravating features of dangerous driving do not exist here such as driving in the wrong direction or going through a police roadblock.

13.  The maximum sentence for this offence is one of 3 years’ imprisonment, and the more serious cases range within 2 to 3 years’ imprisonment.

14.  I do not believe that this particular set of facts can be said to lie within the more serious category.

15.  I note the defendant is remorseful and has expressed that remorse to the court.

16.  What I propose to do is take an overall starting point for the 1st charge based on all the factors in the offence.  I consider that starting point should be one of 15 months’ imprisonment.

17.  After a reduction for a plea of guilty, that leads to a sentence on the 1st charge of 10 months’ imprisonment.

18.  There will be disqualification from driving for 3 years on this offence, and the defendant must take and complete a driving improvement course within the final 3 months of that period of disqualification.

19.  On the 2nd charge - that is, the charge of driving whilst disqualified - the maximum sentence on that offence can be 12 months’ imprisonment.

20.  What I shall do is take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

21.  There is also a mandatory 1-year disqualification which must operate in addition to any other disqualification.

22.  On the final charge of using a motor vehicle without third party insurance, the defendant has committed this offence on two previous occasions.  It also carries a sentence of imprisonment.

23.  I take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

24.  There is a compulsory disqualification from driving for 3 years.

25.  As far as these sentences are to operate, I will order the following.  Although committed at the same time, the 2nd and 3rd offences represented an added element of criminality.  I am going to order that 2 months of those sentences be ordered to be run consecutively to the 1st charge.  This leaves a total now of 12 months’ imprisonment.  As far as the disqualifications are concerned, I am going to order that the disqualifications on the 1st and 3rd charges will run concurrently, but on the 2nd charge will have to run consecutively to those charges.  So there is a total disqualification of 4 years.

26.  My understanding of the operation of those disqualifications is that they operate from today, so they will operate beyond his existing disqualification.  I have also indicated the defendant must take and complete a driving improvement course in respect of the conviction on the 1st charge if he wishes to regain his licence on the termination of the disqualification period.

27.  Those are the orders I make.