HKSAR v. YEUNG KA CHUN

DCCC 164/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 164 OF 2015

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Reasons for Sentence
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1. This is a case of police high-speed pursuit.

2. The defendant, a man of 29 years of age, pleaded guilty before me to three counts of offence: 

(1) Charge 1: dangerous driving;

(2) Charge 2: driving while disqualified, contrary to Section 44 of the Road Traffic Ordinance;

(3) Charge 3: using a motor vehicle without insurance, contrary to Section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance.

3. The police have the whole incident video-recorded and the tape has been played twice in court during sentencing. 

4. On the night in question, at about 2:30 in the morning, officers in an unmarked police car were patrolling along Kam Tin Road, Pat Heung.  The defendant triggered a high-speed police pursuit because he was seen among the 11 cars which were speeding along the road at the time.  The police chased the defendant through several parts of the New Territories, starting from Pat Heung and ending in Sha Tau Kok, where the defendant was eventually apprehended.  The incident lasted for about 15 minutes.

5. During the chase, for most of the time, the defendant was travelling at speed doubling or more than doubling the speed limit of the road.  For example, at times he was doing 130 to 160kmh in a 50kmh zone, and at other times, 100 to 140kmh in a 70kmh zone. 

6. There had been 9 occasions when he jumped the red lights, 5 times he failed to comply with road markings such as crossing double white lines, and 5 occasions when he was actually driving on the wrong side of the road (See, for example, photo number 8 which shows that the defendant was travelling on the wrong side with an oncoming bus not too far in front) and he had done some dangerous overtaking as well, such as overtaking two taxis in a row, causing the taxis to brake hard.

7. He also weaved through the traffic (See, for example, photo number 10 which shows the defendant was weaving between two taxis.) 

8. He also came through a town centre where he was going round intersections at speed (See the video).

9. Eventually, the police were able to force him to a corner, but the defendant reversed his car and crashed into a police car, causing damage to both vehicles.

10. After his apprehension, it was found out that the defendant was a prohibited driver.  He was banned from driving on 13 July 2012 for a period of three years.  The corollary of that is that he was driving without insurance.

11. The defendant has amassed 20 previous convictions. Some of them are to do with motoring offences:  one conviction for dangerous driving, one driving while disqualified, five convictions for driving without insurance.  The rest are either for drug related or dishonesty offences (See his criminal record and traffic record combined).

12. In mitigation, defence counsel submitted that what the defendant did is dangerous in the sense that it posed threats to the public, but it is not the most serious kind, such as driving under the influence of drugs or alcohol.  Counsel said the defendant was conscious of what he was doing at the time.

13. It is further submitted that the roads in question were quiet and for most part it was long and straight road and very few people were there.  There were not any injuries.  The only damage was done when the defendant reversed his car.

14. In his letter to the court asking for leniency, the defendant, stating his reason for the commission of the offences, put it down to his being playful on the night in question.

15. As his records show, he had driven a car well before he obtained his driving licence.  He obtained his driving licence in November 2005, but before that, in 2002, he already had a conviction for careless driving.  Less than a year after obtaining his driving licence, he committed yet another careless driving in May 2006. 

16. Thereafter, he continued to drive and to commit further motoring offences.  He had been driving without insurance for five times and once driving while disqualified.

17. His driving manner had clearly gone worse since his last conviction of careless driving, for he was convicted of dangerous driving in May 2012.

18. Now, it is his second time of driving a car dangerously.

19. As can be seen from the video, the defendant has shown a total disregard for the safety of other road users.  He wanted to shake off his pursuers, but I am sure he must have realised that in so doing he actually put the pursuing officers’ lives in great danger.  It was sheer luck that the officers walked away from the incident unscathed.  Their luck had nothing to do with the defendant himself whatsoever.

20. Looking at his record and what he did in the instant case, undoubtedly he is a very irresponsible driver.  He went on driving, knowing full well he was banned from driving.  To top it all, he was speeding as well, as he said, just for fun.

21. Although he had come before the court many times before in connection with a variety of motoring offences, he did not seem to get the message.

22. Given his attitude, I have no doubt in my mind that the defendant is someone who would drive whenever the occasion arises, whether he is under a suspension or not. 

23. When he does drive, he is dangerous.  It is like in the instant case.  He firstly took part in speeding activities which were dangerous enough and when found out by the police, he led the police on an even more dangerous high-speed chase.  His driving puts everybody at risk and the worrying problem is that he does not seem to care about the consequences of his action.

24. The defendant, in my view, should not be on the road as a driver.  He has been proved to be a real danger to the society and, for public interests, he should be kept off the road for as long as the law would allow.

25. As far as mitigation is concerned, apart from his guilty plea, there is not any mitigation of substance.

26. For dangerous driving, this is his second time. The maximum sentence is one of 3 years’ imprisonment and Section 37(2A) of Road Traffic Ordinance provides that in a case of a second or subsequent conviction the court shall order that the person be disqualified for a period of not less than 2 years.

27. For driving while disqualified - again, this is his second time - the maximum sentence is one of 12 months’ imprisonment and Section 44(2) of Road Traffic Ordinance provides that in the case of a second or subsequent conviction the court shall order that the person be disqualified for a period of not less than 3 years.

28. It is worth noting that Section 44(3) of the same ordinance also provides that the period of any disqualification under subsection (2) shall be in addition to any other period of disqualification ordered under any other provision of this ordinance.

29. For driving without insurance, this is his sixth time.  The maximum sentence is one of 12 months’ imprisonment.  Section 4(2)(a) of Motor Vehicles Insurance (Third Party Risks) Ordinance provides the person be disqualified for a period of not less than 12 months nor more than 3 years.

30. Taking into account all the mitigation put forward, the sentence, after giving one-third discount, are as follows:

(1) Charge 1, dangerous driving: 20 months’ imprisonment;

(2) Charge 2, driving while disqualified: 6 months’ imprisonment;

(3) Charge 3, driving without insurance: 6 months’ imprisonment.

31. Taking into account the totality principle, I order that Charge 1 be run consecutive to Charge 2, but concurrent with Charge 3.

32. The total term is one of 26 months’ imprisonment.

33. It now comes to the question of disqualification. 

34. When asked for any reason not to make such an order, defence counsel indicated he had no submission to make.

35. For the reasons given in the preceding paragraphs, I order that the defendant be disqualified for 3 years for a second offence of dangerous driving, 5 years for a second offence of driving while disqualified, and 3 years for a sixth offence of driving without insurance.

36. According to Section 44(3) of the Road Traffic Ordinance, I order that the period of disqualification for dangerous driving be in addition to the period for driving while disqualified. The total period is therefore one of 8 years (See also Tsui Wai Nin, HCMA 1294/2000).

37. During the disqualification period, the defendant is prohibited from holding or obtaining a driving licence or from driving any vehicles.

38. The court is empowered to direct that the disqualification should not start to run until the person finishes serving the term of imprisonment, provided that conviction is the person’s second or subsequent conviction of a relevant scheduled offence. Here, the relevant scheduled offence is his previous conviction for dangerous driving. 

39. Again, when asked if any special reason not to make such a direction, defence counsel said he had no submission.

40. I therefore direct that the 8-year disqualification period should not start to run until the defendant finishes serving his 26-month term.

41. The defendant is also ordered to attend and complete a driving improvement course at his own costs within the last three months before the expiry of his 8-year disqualification period (For charge 1).

42. As far as Re-testing of Drivers (Section 70 of the Road Traffic Ordinance) is concerned, defence counsel submitted that the defendant was shown to be a skilful driver, but the problem with him was his driving manner.  “Retesting is something to do with skill and not manner,” counsel submitted.

43. Given what I said about the defendant, he is a real danger to the society as a driver.  I believe it would be in public interests to have him retest before he gets behind a wheel again.

44. For Charge 1, I therefore order, by virtue of Section 70 of Road Traffic Ordinance, that the defendant should not drive again after the disqualification period until he passes a test of competence to drive under the Road Traffic Ordinance.