HKSAR v. LAU YIU HONG

DCCC 986/2020

[2023] HKDC 172

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 986 OF 2020

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Dangerous driving" (Charge 1); a charge of "Driving without a valid driving licence" (Charge 2); a charge of "Using a motor vehicle without third party insurance" (Charge 3); a charge of "Criminal damage" (Charge 4)  and 2 charges of "Failing to surrender to custody without reasonable cause" (Charges 5 and 6).

Summary of Facts

2.  About midnight on 14 February 2019, police officers were conducting an anti-speeding operation at Lung Mun Road (Tuen Mun Pier bound)  in Tuen Mun.

Charges 1 & 4

3.  A private car VY 7741 ("the Car")  was detected speeding.  Acting Sgt 11936 (PW1), who was in uniform, attempted to stop the Car.  The driver of the Car (later confirmed to be the defendant)  ignored PW1's hand signal and drove past 2 police roadblocks.

4.  IP Woo (PW2)  drove a police car to chase after the Car from Lung Mun Road to Tsuen Wan Centre for about 19 km, which took about 9 minutes.  In the course of pursuit, PW2 observed the defendant driving in the following manner :-

(i)  drove at an average speed of 127 km/h where the speed limit of the relevant road segments were respectively 50 km/h (Lung Mun Road and Castle Peak Road Tsuen Wan Section), 70 km/h (Wong Chu Road and Tsuen Wan Road)  and 80 km/h (Tuen Mun Road);

(ii)  jumped a red light;

(iii)  swerved into the first (left)  lane from the 2^nd lane cutting in front of PW2's police car (with less than 0.5 metre distance between 2 vehicles), thereby causing PW2 to brake abruptly in order to avoid collision with the Car;

(iv)  ignored the road markings continuously; and

(v)  drove through and damaged the entrance bar of Tsuen Wan Centre Car Park, Nos.86-105 Tsuen King Circuit, Tsuen Wan ("the Car Park").

5.  PW2 followed the Car into the Car Park.  Inside the Car Park, he saw a male fleeing from the Car.  PW2 stayed in the Car Park to wait for reinforcement. 

6.  Upon search, a Hong Kong Identity Card and a mainland travel permit (both bearing the defendant's name)  and some personal belongings were found on the ground next to the Car.

7.  The repair costs of the entrance bar of the Car Park was $15,000.

Arrest and admissions

8.  The defendant was arrested on 28 March 2019.  In his video recorded interview, the defendant admitted under caution that he was the driver of the Car on 14 February 2019.  Since he did not have any driving licence and his use of the Car was not covered by a third party insurance policy, he decided not to obey the police instructions and drove the Car away.  Upon arrival at the Car Park, the defendant noticed that a police car was behind him.  He decided to drive through the entrance bar to enter the Car Park.  After that, he and 2 passengers fled from the Car.

Police investigation

9.  The ownership of the Car was transferred to a Mr. Ng on 13 February 2019 (one day before the offences).  The third party insurance policy covering the Car had expired on the date of the offences (this is Charge 3).  The defendant's Learner Driving Licence had expired on 22 March 2011.  He did not hold any valid driving licence on the date of the offences (this is Charge 2).

10.  CCTV footage showed that at 00:11:51 hours on 14 February 2019, the defendant was in the driver's seat of the Car driving it into the Car Park, followed by a police car.

Charge 5

11.  The defendant first appeared in the magistrates' court on 6 August 2019.  The case was adjourned to 10 September 2019 for mention and the defendant was granted bail.  He failed to appear at the mention hearing on 10 September 2019 and a warrant of arrest was issued.

12.  The defendant was arrested in Mongkok on 22 September 2020 upon being stopped and searched.  Under caution, he admitted that he jumped bail because he was just released from prison and did not want to be imprisoned again.

Charge 6

13.  On 19 October 2020, the defendant was granted bail by the High Court.  His case was fixed for plea and sentence on 23 July 2021.  On that day, he failed to appear in court and a warrant of arrest was issued.

14.  On 1 January 2022, the defendant was arrested at San Tam Road, Lok Ma Chau.

Mitigation & Sentence

15.  The defendant is 30 and has 8 conviction records which included multiple dishonesty offences and 3 drug-related offences.  Defence counsel Ms. Chu informed me that the defendant is single and resided with his girlfriend.  Prior to his arrest, the defendant was a takeout deliveryman.  He also worked as a part-time used car salesman to earn more income.

16.  In mitigation, Ms. Chu submitted that the defendant has been a car enthusiast since he was young, often fantasying himself as a race car driver.  The defendant helped a friend to purchase the Car.  The ownership transfer was just completed on the day before the offences and the defendant was supposed to handover the Car to his friend. Being unable to resist the temptation, the defendant invited some friends for a joyride in the Car.  He panicked when he encountered the police roadblock.

Charge 1

17.  There is no footage of PW2's pursuit of the Car; or otherwise a picture would speak a thousand words and a video clip would paint a thousand pictures.  Based on the written description alone, I can still visualize that the defendant's driving manner was beyond appalling.  He drove in such a dangerous way (including excessive speed and disobedience of all traffic signs, signals and road markings along the way)  in order to avoid apprehension by the Police.  It was most fortunate that he did not hit any pedestrians or crash into any vehicles.

18.  I have considered the Court of Appeal's decision in SJ v Ko Wai Kit, Paul [2001] 3 HKLRD 751.  Bearing in mind that the maximum prison term for this offence is 3 years, I adopt a starting point of 2 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 16 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence the defendant to 16 months' imprisonment for this charge.

Charge 2

19.  For a 1^st conviction of this offence, the maximum penalty is a fine of $5,000 and imprisonment for 3 months.  I adopt a starting point of 1.5 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 1 month's imprisonment for this charge.

Charge 3

20.  The maximum penalty of this offence is a fine of $10,000 and imprisonment for 12 months.  By driving the Car knowing that the third party insurance policy had expired, the defendant has deprived all road users of adequate financial protection.  An immediate custodial sentence is required for this charge.  I adopt a starting point of 4.5 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 3 months' imprisonment for this charge.

Charge 4

21.  I have viewed the CCTV footage of the Car Park.  The defendant had stopped the Car and tried to tap a card to raise the entrance bar, but was unsuccessful.  Since a light-blinking police car was right behind him, he simply drove forward and broke the entrance bar.  Bearing in mind the repair costs, I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 4 months' imprisonment for this charge.

Charges 5 & 6

22.  For these 2 charges, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[1]. In Charge 5, the defendant has absconded for a year, which is not a short period.  Being afraid of going to prison again is plainly not an excuse for not attending court.  In Charge 6, he has absconded for 5 months, which is a repeated and flagrant disregard of bail conditions imposed by the court.

23.  In HKSAR v Wong Chi Hung CACC 300/2010[2], the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days.  I adopt a starting point of 4.5 months' and 6 months' imprisonment respectively for Charges 5 and 6.  With the timely guilty pleas, I sentence the defendant to 3 months' and 4 months' imprisonment respectively for these 2 charges.

Overall sentence

24.  I accept that Charges 2 to 4 are part and parcel of Charge 1.  In other words, Charges 1 to 4 arose from the defendant driving dangerously and without a valid driving licence.  At the same time, Charges 2 to 4 constituted aggravating factors in Charge 1.  I have reminded myself not to punish the defendant twice.  I make it clear now that I did not take into account of Charges 2 to 4 when I determined the starting point for Charge 1.  For Charges 1 to 4, I consider an overall starting point of 30 months' imprisonment appropriate and just.  With the timely guilty pleas, the overall sentence is reduced to 20 months for these 4 charges.

25.  Charges 5 and 6 are clearly separate and distinct from Charges 1 to 4.  The defendant has absconded twice in this case for a total 17 months.  A net prison term of 5 months is appropriate and just for these 2 charges.

26.  Bearing in mind the totality principle again, I consider a net prison term of 25 months appropriate and just for all 6 charges.  To achieve this, I order the sentences to run in the following manner :-

(i)  Charges 2 to 4 to run concurrently, but consecutive to Charge 1;

(ii)  1 month in Charge 5 consecutive to Charges 1 to 4; and

(iii)  Charge 6 consecutive to Charges 1 to 5.

Other orders

27.  A disqualification order is inevitable for Charge 1.  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[3]. Since the defendant has no similar conviction, the disqualification period is not less than 6 months[4]. Bearing in mind the dangerous level of his driving manner, I make a disqualification order of 18 months for this charge, which will start to run from the date of sentencing[5].

28.  For Charge 3, the defendant's unlicensed driving without adequate protection of insurance renders him a serious threat and danger to other road users.  Hence, I make a disqualification order of 2 years[6], which shall run from the date of conviction[7].

29.  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 1.