HKSAR v YANG CHUNG KI

DCCC 271/2024

[2025] HKDC 531

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 271 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant faced 5 charges, namely :

(1)  Theft, contrary to s.9 of the Theft Ordinance (Cap 210)  (Charge 1);

(2)  Dangerous driving, contrary to s.37 of the Road Traffic Ordinance (Cap 374)  (Charge 2);

(3)  Driving without a valid driving licence, contrary to s.42(1)  and (4)  of the Road Traffic Ordinance (Cap 374)  ( Charge 3);

(4)  Using a motor vehicle without third party insurance, contrary to s.4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance (Cap 272)  (Charge 4); and

(5)  Failing to surrender to custody without reasonable cause, contrary to s 9L(1)  and (3)  of the Criminal Procedure Ordinance (Cap 221)  (Charge 5).

2.  The Defendant pleaded guilty to Charges 1 to 4 and was convicted accordingly. Upon the application of the Prosecution, I ordered Charge 5 to be left on court file and not to proceed with without the leave of the court.

Summary of Facts

3.  CHAN Chun-kit (“PW1”)  was the registered owner of a motorcycle with vehicle registration number XF9422 (“the Motorcycle”).

4.  At around 6 pm on 16.7.2022, PW1 parked the Motorcycle near lamppost VD 9246, Sha Po Tsuen, Sha Po Tsuen Road, Kam Tin. He returned at 9 am the following day to find that the Motorcycle had gone missing.  Case was reported.

5.  At around 1:58 pm on 1.9.2022, PC5819 (“PW2”), whilst on motorcycle patrol, spotted the Defendant driving the Motorcycle on Gascoigne Road. At the time, the Defendant was cutting between lanes multiple times and over-taking other moving vehicles.  PW2 turned on the beacon lights of his police motorcycle and followed the Defendant.

6.  In the course of the subsequent pursuit, the Defendant drove the Motorcycle on a road dangerously in that he:

(i)  engaged in a prolonged period of bad driving in an attempt to escape police pursuit;

(ii)  failed to comply with traffic signals;

(iii)  failed to comply with road markings;

(iv)  failed to comply with police instructions;

(v)  cut lanes and overtook other vehicles frequently;

(vi)  drove against the direction of vehicular traffic; and

(vii)  collided with a pedestrian and another vehicle (Charge 2).

7.  The Defendant eventually got off the Motorcycle at Chatham Road North and fled on foot.  He was subdued at around 2:08 pm on the same day.

8.  Investigation revealed that the Defendant was a holder of a learner’s driving licence of Classes 1, 2, 3 and 22 which was valid until 21.5.2021.  At such, he did not hold any valid driving licence (Charge 3)  and was not covered by any third-party risk insurance policy (Charge 4).

9.  The Defendant was arrested and admitted under caution that he stole the Motorcycle some 3 weeks ago on Nga Tsin Wai Road, Kowloon City (Charge 1).

Criminal records

10.  The Defendant has 20 court appearances for 44 offences, including:

(a)  7 convictions for “Theft” (same as Charge 1);

(b)  2 convictions for “Handling stolen goods” and 2 convictions for “Taking conveyance without authority” (offences under the Theft Ordinance);

(c)  1 conviction for “Dangerous driving” (same as Charge 2);

(d)  2 convictions for “Driving without a valid driving licence” (same as Charge 3);

(e)  2 convictions for “Driving without third party insurance” (same as Charge 4); and

(f)  10 convictions for drug-related offences.

11.  The Defendant was released from the Drug Addiction Treatment Centre (DATC)  on 4.5.2022 and committed the present offences on 1.9.2022.

Traffic conviction record

12.  The Defendant was first issued with his learner’s driving licence on 11.8.2015. He has a total of 23 convictions for “Failing to give information on demand”.

Personal Background

13.  The Defendant is now 45 years old.  He has been educated up to secondary school level.  At the time of the offences, he was single and unemployed.  He lived in public housing with his parents.

Mitigation

14.  In mitigation, Counsel for the Defendant, Mr Chan, relied on the case of HKSAR v So Pak Lun CACC 276/2013 and invited me to consider a starting point of 2 years’ imprisonment for Charge 1,

15.  With a view to assist the court, Mr Chan also referred me to the facts and starting points of sentence adopted in a number of District Court sentencing cases.

16.  As to the Defendant’s similar previous convictions, Mr Chan submitted that they were more than a decade ago and urged me not to consider any enhancement of sentence.

17.  Mr Chan also confirmed that there was no “special reason” put forward regarding the issue of disqualification.

Sentencing considerations

Charge 1 - Theft of a motorcycle

18.  The maximum sentence for Charge 1 is one of 10 years’ imprisonment.

19.  The offence involved the stealing of a motorcycle. In assessing the gravity of the offence, I take into account the following:

(i)  the Defendant acted alone in committing the offence;

(ii)  the value of the Motorcycle was not particularly high (PW1 purchased it in 2021 at the price of HK$51,900);

(iii)  there was no evidence of any damage to the Motorcycle; and

(iv)  the inconvenience caused to PW1 lasted for weeks and was not permanent in any event.

20.  As such, I consider a starting point of 2 years’ imprisonment appropriate.  On the other hand, while accepting that the Defendant’s theft-related convictions were more than a decade ago, I consider it an aggravating factor that the Defendant committed the present offence less than 4 months after his release from DATC.  Indeed, the same applies to all the charges in this case.

21.  I therefore enhance the starting point by 6 months to 2 years and 6 months.  The Defendant is entitled to the 1/3 discount for his timely plea and the sentence is reduced to 20 months’ imprisonment.

22.  Pursuant to s.69(1)(c)  of the Road Traffic Ordinance, I disqualify the Defendant from holding or obtaining a driving licence for 3 years.

Charge 2 - Dangerous driving

23.  The maximum sentence for Charge 2 is one of 3 years’ imprisonment.

24.  In assessing the gravity of the offence, I take into account the Defendant’s driving manner as set out in para. 6 above.

25.  All in all, I consider it a serious case of dangerous driving, and it was sheer luck that the offence did not result in any serious injury to person or damage to property.

26.  As such, I consider a starting point of 9 months’ imprisonment appropriate and enhance it by 3 months to 12 months.  With the 1/3 discount, the sentence is reduced to 8 months’ imprisonment.

27.  It was the Defendant’s second conviction for the same offence. In addition, the Defendant has 23 traffic convictions for “Failing to give information on demand”.  I have checked the relevant court records and found that they all related to driving offences involving a motorcycle owned by the Defendant at the relevant time. The same was confirmed by Mr Chan on behalf of the Defendant today.

28.  I consider the Defendant’s traffic convictions appalling and they showed a blatant disregard of the law. I therefore disqualify the Defendant from holding or obtaining a driving licence for 5 years.

29.  In addition, pursuant to s 72(A)(1A)  of the Road Traffic Ordinance, I order the Defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.

Charge 3 – Driving without a valid driving licence

30.  At the time of the offence, the Defendant was a holder of a learner’s driving licence which was valid until 21.5.2021.  The Defendant has 2 similar previous convictions and is liable to a fine at Level 3 and imprisonment for 6 months.

31.  I consider a starting point of 2 months’ imprisonment appropriate and enhance it by 1 month to 3 months.  With the 1/3 discount, the sentence is reduced to 2 months’ imprisonment.

Charge 4 – Driving without third party insurance

32.  At the time of the offence, the Defendant used the Motorcycle on a road when there was no insurance coverage in respect of third-party risks.

33.  The Defendant has 2 similar previous convictions and is liable to a fine at Level 3 and imprisonment for 12 months, plus a disqualification order for a period between 12 months and 3 years.

34.  I consider a starting point of 2 months’ imprisonment appropriate and enhance it by 1 month to 3 months. With the 1/3 discount, the sentence is reduced to 2 months’ imprisonment.

35.  In addition, I disqualify the Defendant from holding or obtaining a driving licence for 12 months.

Sentence

36.  Sentence on individual charges:

(a)  Charge 1	20 months’ imprisonment	plus disqualification period of 3 years
(b)  Charge 2	8 months’ imprisonment	plus disqualification period of 5 years and driving improvement course
(c)  Charge 3	2 months’ imprisonment
(d)  Charge 4	2 months’ imprisonment	plus disqualification period of 12 months

Totality

37.  Taking into account the fact that Charges 2 to 4 arose out of the same facts, I order the imprisonment terms on Charges 2, 3 and 4 to run concurrently, making a total of 8 months’ imprisonment.

38.  As to Charge 1, it was a separate and distinct offence from the others. Nevertheless, considering the issue of totality, I order 4 months from the imprisonment term on Charges 2 to 4 to run consecutively to that of Charge 1, making a total of 24 months’ imprisonment.

39.  As to the disqualification periods, I order them to run concurrently, making a total period of 5 years.

40.  Lastly, the Defendant has to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.