HKSAR v. LEE YAU SHUN

DCCC 797/2022

[2023] HKDC 1385

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 797 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Lee pleaded guilty before me to 5 charges on a Charge Sheet as follows.

2.  Charge 1 is Dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on 23 December 2021, in Hong Kong, drove a private car bearing registration mark XH3533 on a road dangerously.

3.  Charge 2 is Driving an unlicensed vehicle, contrary to section 52(1)(a)  and (10)(a)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on the same day, in Hong Kong, drove a vehicle, namely, a private car bearing registration mark XH3533 on a road when the said vehicle was not registered and licensed in accordance with the Road Traffic Ordinance, Cap 374.

4.  Charge 3 is Using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.  Particulars are that he, on the same day, in Hong Kong, used a motor vehicle, namely a private car bearing registration mark XH3533 on a road when there was not in force in relation to the user thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.

5.  Charge 4 is Driving a motor vehicle on a road without having with him his driving licence, contrary to section 42(2)  and (5)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on the same day, in Hong Kong, without lawful authority or reasonable excuse, drove a motor vehicle, namely a private car bearing registration mark XH3533, on a road without having with him at the time he was driving his driving licence.

6.  Charge 5 is Possession of dangerous drugs, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on the same day, on a private car bearing registration mark XH3533, near the junction of Sha Tin Wai Road and Ngan Shing Street, Sha Tin, New Territories, in Hong Kong, had in his possession dangerous drugs, namely one handrolled cigarette containing 0.20 gramme of cannabis in herbal form and 0.18 gramme of a solid containing cocaine.

Facts admitted by Mr Lee

7.  On 23 December 2021, at about 0022 hours, PC12540 (PW1)  was stationed on board a police vehicle AM8079 at the left hard shoulder of Fanling Highway (Kowloon bound).  The speed limit on Fanling Highway was 100 km/h.  A private vehicle XH3533 went past him on the highway at a high speed of about 150 km/h. PW1 immediately gave chase.

8.  Upon reaching Tolo Highway (Kowloon bound), PW1 turned on the siren and ordered XH3533’s driver (later known to be Mr Lee)  through the loudhailer to stop at a hard shoulder.  At about 0024 hours, XH3533 reduced its speed to about 70 km/h and proceeded to the hard shoulder of Tolo Highway.  However, instead of stopping there, XH3533 suddenly accelerated and drove off at a high speed. PW1 then switched on the recording function of AM8079’s camcorder and continued to pursue XH3533.  The speed limit of Tolo Highway was 100 km/h in general.  XH3533 cut across double white lines on Tolo Highway once before exiting Tolo Highway onto Chong San Road at about 0026 hours.

9.  At about 0027 hours, XH3533 jumped the red light on Chong San Road at about 120 km/h.  At the junction of Chong San Road and Science Park Road, XH3533 jumped the red light at about 70 km/h to turn right onto Science Park Road.  XH3533 proceeded along Science Park Road, Chak Cheung Street and Sui Cheung Street before going back to a stretch of Tolo Highway (near Sha Tin Racecourse, Kowloon bound)  which had a speed limit of 80 km/h.  At about 0030 hours, XH3533 exited Tolo Highway onto Shatin Road.

10.  At about 0031 hours, XH3533 jumped the red light at the junction of Sha Tin Road and Sha Tin Wai Road and turned left onto Sha Tin Wai Road heading towards Ma On Shan.  Shortly afterwards, upon reaching the road junction between Sha Tin Wai Road and Ngan Shing Street and travelling on the left fifth lane, when the traffic light was red, XH3533 crashed the offside of a private vehicle TJ4522 (with a driver on board)  on the left fourth lane, then rammed into the rear of an urban taxi SD639 (with a driver and passenger on board)  on the left fourth lane and the rear of a New Territories taxi KG9070 (with a driver and a passenger on board)  on the left fifth lane.  The collisions brought XH3533 to a halt.  PW1 stopped at the offside of XH3533.  Mr Lee was alone in the driver’s seat on XH3533.  He was apprehended by the police.

11.  The driver of the NT Taxi KG9070 sustained neck and back pain.  He was discharged from the hospital the same day after being treated and granted 7 days’ sick leave.

12.  There were multiple times when Mr Lee exceeded the speed limit during the course of travel as described above, reaching as high as about 180 km/h on Tolo Highway.

13.  Mr Lee was the registered owner of XH3533.  Although he was a holder of a valid driving licence, he was unable to produce it to the police when apprehended.  The vehicle licence of XH3533 had expired on 14 October 2021. The third party insurance policy of XH3533, of which Mr Lee was the policyholder, had expired on 10 December 2021.

14.  The police arrested Mr Lee for “furious driving”, “driving an unlicensed vehicle”, “using a vehicle without third party insurance” and “driving a vehicle without having with him a driving licence”.  Under caution, Mr Lee admitted since there was no third party insurance covering XH3533 and the vehicle licence of XH3533 had expired, he was afraid and thus drove off.

15.  Upon search of XH3533, the police found inside a storage box at the driver seat near the right hand side of the steering wheel a cigarette box containing:

(a)  One handrolled cigarette containing 0.20 gramme of cannabis in herbal form; and

(b)  One plastic bag containing 0.18 gramme of a solid containing cocaine.

16.  The police arrested Mr Lee for “possession of dangerous drugs”.  Under caution, Mr Lee admitted he had purchased the cannabis and cocaine for self-consumption.

17.  PW1’s pursuit of Mr Lee from about 0024 hours till the collisions spanned some 13 km.

18.  Mr Lee now admits that he drove XH3533 dangerously on the roads in that:

(a)  He drove the vehicle at speeds beyond the speed limits and in contravention of traffic regulations, ie cutting across double white lines and jumping red lights, in disobedience to the police’s order to stop and with persistent and reckless disregard for the safety of other vehicles, in order to evade the police’s pursuit; and

(b)  He drove the vehicle intentionally to collide with other vehicles which stopped in front of the junction between Sha Tin Wai Road and Ngan Shing Street, including TJ4522, SD639 and KG9070, causing damage to those 3 vehicles and causing injuries to the driver of KG9070, in disobedience to the police’s order to stop and with persistent and reckless disregard for the safety of the vehicles which stopped in front of the said junction, in order to evade the police’s pursuit, investigation and arrest.

Criminal and Road Traffic records

19.  Mr Lee has 5 previous criminal convictions the last of which was recorded post the present offences, none similar.  Mr Lee has 22 previous road traffic convictions half of which (all committed post the present offences)  were for “Driving in excess of speed limit by more than 45 km/h”, which incidentally is a relevant scheduled offence for the purpose of section 69A of Cap 374 relating to start of disqualification period.  The other road traffic convictions included Careless driving x 2 and Driving/​using an unregistered/​unlicensed vehicle x 1, two of which were committed post the present offences.

Antecedents

20.  Mr Lee is aged 29 (27 at the time of the offences), educated to upper secondary level.  He has previously worked as a transportation worker and a cook.  Mr Lee is single and lives with his family in Sha Tau Kok.

Mitigation

21.  Mr Lee acted for himself and mitigated on his own behalf.  The following is a summary of his mitigation submissions.

22.  Mr Lee lives with his mother and younger brother.  His father had left the family after divorce proceedings.

23.  Mr Lee has recently found a construction site job with monthly salary of about $20,000.

24.  Mr Lee purchased the drugs for his own use because at the time of the offences, he had just lost his job.

25.  Mr Lee asks the court to be lenient and to impose a non-custodial sentence.

26.  Mr Lee offered no special reasons why the court should not impose the order of disqualification (of at least the statutory minimum length)  or the order to attend and complete the driving improvement course.  Likewise, he has not offered any special reasons why the court should not direct the disqualification order to be made under Charge 1 do not start until he has finished serving all manners of continuous imprisonment or detention starting today.

Sentence

27.  The whole circumstances of the commission of the present offences are serious.  These circumstances include:-

(a)  driving at about 150 km/h on Fanling Highway (speed limit 100);

(b)  running away from police pursuit at high speed;

(c)  driving on Tolo Highway at about 180 km/h (speed limit 80-100);

(d)  cutting across double-white lines on Tolo Highway;

(e)  jumping red traffic light;

(f)  causing multiple collisions in front of red traffic light;

(g)  causing some injuries, though not serious, to the driver of one of the collided vehicles; and

(h)  placing at risk of injuries multiple persons on board collided vehicles and other vehicles along the way of escape from police pursuit.

28.  This led me to the firm conclusion that, where imprisonment sentence is an available option for a particular offence, it is my duty to impose such a sentence.

29.  The maximum penalty for a Dangerous driving offence (Charge 1)  is imprisonment for 3 years and a fine of $25,000.  There is also a mandatory disqualification with a minimum length and a mandatory order to attend and complete a driving improvement course at the defendant’s own cost, subject to existence of special reasons.

30.  The maximum penalty for a Driving an unlicensed vehicle offence (Charge 2)  is, in the case of a first conviction, imprisonment for 3 months and a fine of $5,000.

31.  The maximum penalty for a Using a motor vehicle without third party insurance offence (Charge 3)  is imprisonment for 12 months and a fine of $10,000.  There is also a mandatory disqualification of length between 12 and 36 months, subject to existence of special reasons.

32.  The maximum sentence for a Driving a motor vehicle on a road without having with him his driving licence offence (Charge 4)  is a fine of $2,000.

33.  The maximum sentence for a Possession of dangerous drugs offence (Charge 5)  is imprisonment for 7 years and a fine of $1M.

34.  In the matter of Charge 1, I am satisfied that Mr Lee’s manner of driving is the worst of its kind under the mantle of dangerous driving.  For that reason, I shall adopt a starting point of 3 years’ imprisonment.

35.  In the matter of Charge 2, the vehicle licence had expired for more than 2 months.  I shall adopt a starting point of 30 days’ imprisonment.

36.  In the matter of Charge 3, the insurance policy had expired for about 2 weeks.  I shall adopt a starting point of 3 months’ imprisonment.

37.  In the matter of Charge 4, I shall impose a fine of $1,000.  This has taken into account the fact that Mr Lee has pleaded guilty to the charge.

38.  In the matter of Charge 5, the amount of the drugs is minimal.  I shall adopt a starting point of 9 months’ imprisonment.

39.  Mr Lee pleaded guilty in good time.  He shall enjoy a 1/3 discount to all his prison sentences.  There are no other mitigating factors of weight to justify any further reduction in sentence.

40.  Although the offences occurred at the same time and at pretty much the same place, none is a concomitant offence to the other.  In other words, each of the offences is quite independent from the others in terms of commission thereof.  I will allow some limited concurrency in the sentences but only because I apply the totality principle.

41.  As for disqualification and other ancillary orders, I do not find any special reasons exist such that I should either not impose the same or impose a less severe penalty than that otherwise prescribed by the relevant statute.

42.  Indeed, for the disqualification order under Charge 1 of dangerous driving, I see a positive reason to impose a longer length than the statutory minimum because of the severe degree of culpability with which that offence was committed.

43.  For Charge 1, the sentence is 24 months’ imprisonment.

44.  For Charge 2, the sentence is 20 days’ imprisonment.

45.  For Charge 3, the sentence is 2 months’ imprisonment.

46.  For Charge 4, the sentence is a fine of $1,000, to be deducted from bail money.

47.  For Charge 5, the sentence is 6 months’ imprisonment.

48.  I order that the sentences on Charges 2, 3 and 5 are to run concurrently among themselves; and 4 months of those sentences are to run consecutively to the sentence on Charge 1.  The total sentence is therefore 28 months’ imprisonment.

49.  Under Charge 1, I further order that Mr Lee be disqualified from holding or obtaining any driving licence for a period of 18 months; and that Mr Lee is to attend and complete a driving improvement course at his own cost within 3 months after he has finished serving his term of imprisonment.  Mr Lee is not to hold or obtain a driving licence again until he has both (a)  served his disqualification period and (b)  attended and completed at his own cost the driving improvement course.

50.  By virtue of section 69A of Cap 374, because “dangerous driving” is itself a relevant scheduled offence, and this is Mr Lee’s second or subsequent conviction of a relevant scheduled offence, I direct[1] that the disqualification period under Charge 1 is not to start to run until Mr Lee has finished serving the term of imprisonment imposed herein, or has finished serving any other term of imprisonment or detention which he might be undergoing at the time he finishes serving the term of imprisonment imposed herein, whichever is the later.

51.  Under Charge 3, I further order that Mr Lee be disqualified from holding or obtaining any driving licence for a period of 12 months starting from the date of conviction, by virtue of section 4(2)(a)  of Cap 272.

52.  I hereby warn Mr Lee that failure to attend and complete the driving improvement course at the time specified without reasonable excuse is itself an offence and can attract an imprisonment sentence.