HKSAR v. NG CHI WAI

DCCC 602/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 602 OF 2015

--------------------

--------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant was originally charged with 16 offences arising out of five separate dates or occasions.

2.  The first occasion was on 1 April 20015 where he drove a vehicle with false plates with intent to deceive (Charge 2) and was detected by a speed camera exceeding the speed limit by 18 kilometres per hour in Yuen Long (Charge 1).  On that occasion the defendant did not have a valid driving licence and the vehicle he drove had no vehicle licence.  He also did not have any valid third party insurance (Charge 3).

3.  The second occasion was 3 April 2015, two days later.  A speed camera caught the same vehicle with the same false plates speeding, doing 33 kilometres per hour over the speed limit (Charges 4, 5 and 6). 

4.  The third occasion was 4 April 2015, one day later.  A speed camera caught the same vehicle with the same false plates speeding, doing 39 kilometres per hour over the speed limit (Charges 7, 8 and 9).

5.  The fourth occasion was 5 April, one day later.  Again, a speed camera caught the same vehicle with the same false plates speeding, doing 23 kilometres per hour over the legal speed limit; the defendant drove his vehicle without any third party insurance (Charges 10, 11 and 12). 

6.  The false plates of these four occasions, MR 3124 were found at the defendant’s home after his arrest on 6 May 2015, along with two other sets of plates. 

7.  The fifth occasion was 6 May 2015.  The defendant is charged with dangerous driving on that date (Charge 13), using markings on a vehicle with intent to deceive, this time a different set of false plates (Charge 14), using a vehicle on a road without third party insurance (Charge 15), and lastly, possession of markings with intent to deceive, namely the three sets of plates found at his home (Charge 16). 

8.  The defendant pleaded guilty to Charges 1 to 3 and 10 to 16.  Charges 4 to 9 relating to 3 and 4 April 2015 were kept on the court file.  Defendant was convicted of Charges 1 to 3 and 10 to 16. 

9.  The facts are as follows.  Charges 1 to 3, as I said earlier, relate to the defendant driving a vehicle and caught by a speed camera speeding in Yuen Long.  He drove without third party insurance and had put false licence plates on the front and back of the vehicle with intent to deceive the police.  This was on 1 April 2015.

10.  The same facts apply for Charges 10 to 12, but the offence date was 5 April 2015.  On that date a speed camera clocked the defendant driving 23 kilometres per hour over the speed limit; this time in Cheung Sha Wan, Kowloon.

11.  On 6 May 2015, relating to Charges 13 to 16, the police saw the defendant driving ahead of their police vehicle at about 8.12 pm on the Jockey Club Road, Sheung Shui.  The vehicle had false plates, ER 4247.  The police, two officers, saw the defendant jump a red light in front of them.  One of the officers switched on the police siren and the vehicle’s flashing lights. The same officer directed the defendant with the aid of loudspeakers to stop his vehicle.  The defendant ignored this command and drove off.  This led to a chase. 

12.  The Summary of Facts describe the chase in great detail.  Suffice it to say for the purposes of this sentence, the chase lasted six minutes.  The defendant during this chase jumped another seven sets of red traffic lights.  On two occasions he deliberately drove against the traffic flow when there was oncoming traffic.  He also crossed double white lines to get away from the police vehicle.

13.  Towards the end of the chase in Sheung Shui, the defendant lost control of his vehicle and hit two private vehicles parked at the side of the road, GG 2287 and LSK 308.  I have had sight of a photo album, MFI1, which shows the vehicles and the damage caused by collisions.

14.  After the first collision, the defendant did not stop and the police had to try and prevent the defendant from driving away by blocking his path.  Despite this, the defendant did not stop and tried to swerve around the police vehicle which caused him to hit two other vehicles, including the police vehicle.  The force of the defendant hitting the police vehicle caused that vehicle to hit a sixth vehicle.  In total, six vehicles were damaged during two collisions in the course of this chase.

15.  During this six-minute chase, the defendant drove at between 70 and 90 kilometres per hour in a 50-kilometre-per-hour zone.  Two police officers in the police vehicle as result of the collision suffered sprains but were not seriously injured. 

16.  The defendant was arrested and under caution he admitted he drove dangerously.  He had bought the vehicle in November 2014 but had no valid driving licence.  He did not apply for third party insurance for the vehicle nor did the vehicle have any vehicle licence. The two plates, ER 4247, were false and he put them on the vehicle to avoid police detection.  The other three sets of plates found at his home were purchased to use in rotation for the same purpose. 

17.  The police had an accident inspection report compiled by an inspector of the EMSD for the police vehicle damaged in the collision.  The estimated cost of repair was $669,523.00.  The prosecution did not have at hand the damage estimated for the other five private vehicles involved in the two collisions.  However, the photographs, MFI1, speak for themselves; some were seriously damaged. 

18.  The best mitigation today is the defendant’s plea of guilty. 

19.  The defendant is not a man with a clear record.  He has 22 previous convictions, many of them are similar to the charges in this case.  His convictions include three previous for dangerous driving, two previous for driving without third party insurance and two previous for possession of forged driving or vehicle documents; essentially the same charge as those related to using or possessing the false plates here.  Specifically, in 2012 he was convicted of his first conviction for dangerous driving.  In 2008, in the same case, he was convicted of dangerous driving as well as two convictions for failing to stop after an accident.  He has one previous for having no third party insurance as well as two previous for possession of forged vehicle documents.

20.  In 2010, he was again convicted of dangerous driving as well as failing to stop after an accident, driving an unregistered motorbike, driving whilst disqualified, driving without third party insurance, and lastly, being in breach of a suspended sentence.  In 2010, again later that same year, he was convicted of driving whilst disqualified and trafficking dangerous drugs. 

21.  According to the defendant’s road traffic record, he has three speeding convictions where he exceeded the speed limit by more than 15 kilometres per hour but not more than 30 kilometres per hour. These offences were in 2007 and 2008.  According to that road traffic and criminal record, the defendant has been disqualified from driving since 2002 a total of seven times.

22.   There was a court order that he retake his driving test after a period of disqualification had expired.  I have been told he failed to retake his driving test and that is why for these offences he had no valid driving licence.  I have been told the reason he did not retake his driving test was because he could not afford to, yet he in November 2014 could afford to buy a vehicle.  Apparently, it was intended for resale, but he was still in possession of the same vehicle some six months after he bought it.  Moreover, he had purchased three sets of plates to rotate on this vehicle to ensure he would avoid detection by the authorities.  These are not actions of a man intending to sell his vehicle.

23.  The defendant is 43 years old and single.  Since he left school, he has been working as a vehicle mechanic or technician.  He lives with his mother in Fan Ling.  However, between the years of 1995 and 1997, he lived in Rotterdam where he has family running Chinese restaurants.  The defendant intends to return to Rotterdam with his mother in the near future. 

24.  Defence counsel has said all she can say on behalf of the defendant in mitigation and she has summarised helpfully several Court of Appeal cases as well as District Court cases for my consideration, MFI2. 

25.  I have taken into account the cases referred to.  But ultimately with these charges, each case must be looked at individually and according to their own facts.  In this case the gravamen of the charges is obvious as well as the culpability of the defendant. 

26.  To speed is to endanger others on the road.  To have no insurance is to deprive others of any protection or compensation in the event of injury or damaged property.  To put false plates on a vehicle to evade arrest or deceive the police is to set out to deliberately and intentionally flout the law.  To drive dangerously, in this case to deliberately escape the police, is one of the worst case scenarios. This was not a momentary lapse of judgment but, as I have said, a deliberate intention to drive in this manner. 

27.  The defendant’s driving manner on 6 May was appalling.  When told by the police to stop, he drove dangerously.  It is surprising that no one was physically injured.  It is not surprising that he hit several vehicles damaging some seriously.  The consequences could have been very serious, considering it was early evening in a populated area of Sheung Shui.

28.  The defendant had deliberately put false plates on the vehicle, and if the police had been unable to stop him at the scene, he may have ultimately escaped detection.  This prolonged chase shows the defendant is a menace to other road users.  Moreover, his past record of similar offences shows a total disregard to the law and safety of others.  He is utterly selfish to drive on the road without any insurance to protect other road users. 

29.  In my view, his previous similar convictions show the defendant is a persistent offender.  Within a space of 13 years, the defendant has been convicted of four dangerous driving offences, and I note that because he has spent a significant part of the 13 years in prison, he was often off the road.  I find I can take his previous reoffending as an aggravating factor according to the authority of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.  Clearly, his previous sentences have had no deterrent effect and he needs to be prevented from further repetition which would obviously be in the public’s interest. 

30.  On the two occasions of 1 April and 5 April, he deliberately put false plates on the vehicle and broke the law by speeding.  He had no third party insurance on those occasions.  And on both occasions his speed was significantly over the speed limit. 

31.  Where there is a dangerous driving offence, there are factors relevant to sentencing.  In this case it must be his prolonged persistent and deliberate course of bad driving on 6 May and at speed.  It is relevant that he has a selfish disregard of other road users, drivers as well as pedestrians, not only on 6 May, but on other occasions. 

32.  Defendant, please stand up. 

33.  After careful consideration of the facts, mitigation put forward on your behalf as well as the aggravating factor I have identified, I will sentence the defendant, in Charge 1, to a $1,000 fine. Charge 2, I took a starting point of 18 months which is reduced to a 12-month sentence after plea.  For Charge 3, I took a starting point of 12 months which is reduced to an 8-month sentence after plea.  The defendant is, in addition, disqualified from driving any class of vehicle for a period of 2 years.

34.  For Charge 10, the defendant is fined $1,000.  For Charge 11, I take a starting point of 18 months which is reduced to a 12-month sentence after plea.  For Charge 12, I took a starting point of 12 months which is reduced to a sentence of 8 months after plea.  The defendant is disqualified from driving any class of vehicle for a period of 2 years.

35.  For Charge 13, I took a starting point of 2 years and 6 months but added a further 6 months for the aggravating factor, the defendant being a persistent offender.  This 3-year starting point is reduced to a sentence of 2 years after plea.  The defendant is disqualified from driving any class of vehicle for a period of 5 years.

36.  Charge 14, I took a starting point of 18 months which I reduced to a sentence of 12 months after plea.  Charge 15, I took a starting point of 12 months which I reduced to a sentence of 8 months after plea.  Charge 16, I took a starting point of 21 months which I reduced to a sentence of 14 months after plea. 

37.  I have taken into account the totality principle.   There are three groups of offences identified by the date of the offences.  Bearing that in mind, I order 4 months of Charge 2 and 4 months of Charge 11 to be served consecutively to Charge 13, the balance will be concurrent.  Therefore, the total sentence is one of 2 years and 8 months.

38.  The disqualification periods of Charges 3 and 12 will run concurrently and run from today.  The disqualification period of Charge 13, one of 5 years, will run from the date of the defendant’s release from custody.  Before the defendant can be given his driving licence, I order that he be required to retake his driving licence. 

39.  For the financial penalties of Charge 1 and 10, a total of $2,000 fine; I order the defendant to pay that within 31 days.  In default, I order the defendant to serve a one-week term of imprisonment for both charges, consecutive to this sentence.  To be clear, it would be an additional one week only.  Do you understand that sentence?

DEFENDANT: Yes.