HKSAR v. IP CHEONG HING, MICHAEL

DCCC389/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 389 OF 2012

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Reasons for Sentence

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The Charge

1. The defendant appeared before me on 14 June 2012 and pleaded guilty to a total of 5 charges: one charge of “dangerous driving”, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374(Charge 1); two charges of “assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212 (Charge 2 & 3); one charge of “resisting a police officer acting in the due execution of his duty” contrary to section 63 of the Police Force Ordinance, Cap 232 (Charge 4) and finally, one charge of “possession of a dangerous drug”, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (Charge 5).

The Facts

2. I would simply adopt the entirety of the summary of facts which was admitted by the defendant before he was duly convicted of all the charges:-

“1. On 11-3-2012, police officers including senior inspector David Neil Bennett (“PW1”); Police Constable 5185 LAU Chun-ning, Johnny (“PW2”); Acting Sergeant 49950 MA Wai-lun (“PW3”) and Police Constable 60 (“PW4”) were patrolling in an unmarked police vehicle (“the Police Vehicle”) in the Yuen Long area. PW4 was the driver. It was raining. The road surface was wet.

2. At around 5:59 a.m., when they reached the road junction of Kung Um Road and Kiu Hing Road, they saw a private car bearing registration mark MZ 6897 (“V”) driven by the Defendant failed to stop at the red signal of a set of temporary traffic lights at the said road junction. The Police Vehicle followed V by keeping a distance of about 20 metres.

3. Along Kung Um Road, V cut across the continuous double white line road markings to overtake a private car LP 6966. V gave no traffic signal before the overtaking. The overtaking caused LP 6966 to brake suddenly to avoid collision.

4. Later, along Kung Um Road, V cut across the continuous double white line road markings to overtake a public light bus LX 2049. The overtaking caused LX 2049 to brake suddenly to avoid collision.

5. V was travelling at a speed of approximately 100 km/hr where the speed limit was 50 km/hr. Upon reaching Kung Um Road near lamppost BD 2150, V travelled through another set of red traffic lights.

6. The Police Vehicle kept on following V. Upon reaching Ha Ko Po Tsuen on Tam Tin Road, PW4 activated the siren, and used the public announcement system to indicate their police identity and to direct the driver of V to slow down and to stop. V slowed down to about 15 km/hr. The Police Vehicle and V travelled parallel to each other. PW1 saw the Defendant’s face. There was no one else on board of V. Suddenly, V accelerated. The Police Vehicle gave chase.

7. V entered Kam Tin Bypass and travelled in the middle of the carriageway, straddling both lanes. As the chase continued, V entered Castle Peak Road in the wrong direction and travelled against traffic flow for approximately 0.3 km, forcing a public light bus to brake and swerve out of the way to avoid a head-on collision.

8. V then cut back into the correct section of the carriageway and entered San Tam Road, towards Fairview Park. V’s speed was approximately 110 km/hr where the speed limit was 50 km/hr. During the chase, PW1 saw the Defendant threw items out of V’s window in 3 different occasions. Those items could not be recovered.

9. Upon reaching Fairview Park Roundabout, V exited back onto the southbound section of San Tin Highway, cutting across the path of a private car intending to enter the southbound slip road, forcing the private car to brake hard and swerve to avoid a collision. V then travelled along the San Tin Highway, at a speed of approximately 140 km/hr where the speed limit was 100 km/hr.

10. V continued into Yuen Long Road and Pok Oi Interchange, taking the Shap Pat Heung exit heading towards Tai Kei Leng Road. V then entered Tai Shu Ha Road East and then Tai Shu Ha Road West. On reaching a section of the road near lamppost FA 9088, V travelled through the red signal of a set of temporary traffic lights. V continued along Tai Shu Ha Road West and on reaching lamppost BD 2445, V travelled through the red signal of another set of temporary traffic lights.

11. Whilst travelling along Tai Tong Road, V cut across the continuous double white line road markings to overtake a private car and a minibus. V finally entered an unnamed road leading into Shui Tsiu San Tsuen. V overtook a taxi by making a sharp cut in front of it. The taxi braked hard. They almost collided with each other.

12. V finally travelled into an open ground and crashed into the metal railings in the area. The Defendant jumped out of V and ran away towards Shui Tsiu San Tsuen. V somehow kept travelling forward even after the Defendant had jumped out of it. V finally stopped after colliding with other metal railings in the area. No one was found inside V.

13. Upon seeing the Defendant jumped out of V, PW2 and PW3 immediately alighted from the Police Vehicle and chased the Defendant into the village. Near Ground Floor, No.63A, Shui Tsiu San Tsuen, Shap Pat Heung, Yuen Long, New Territories, in Hong Kong, PW2 managed to grab the Defendant’s shoulder, declared his police identity, and told the Defendant not to run. In return, the Defendant elbowed PW2 in the chest and caused PW2 to fall towards the wall. At this juncture, the Defendant picked up a soft drink glass bottle and threw it at PW3 who was chasing him. The bottle hit PW3’s chest. The bottle broke into pieces.

14. The chase continued. At the end, the Defendant lost his balance whilst running, and was subdued by PW2 and PW3 near Ground Floor, No.115A, Shui Tsiu San Tsuen, Shap Pat Heung, Yuen Long, New Territories, in Hong Kong. PW2 pressed the Defendant onto the ground, but he resisted PW2 by struggling vigorously and yelling. He ignored all the repeated verbal warnings.

15. Upon body search, the police found from the Defendant’s trousers pockets a mobile phone and a piece of paper containing traces of a powder containing ketamine. The Defendant denied possession of the latter. Later, reinforcement arrived. PC7021 declared arrest on the Defendant. Under caution, the Defendant said he had only drunk a little bit of alcohol.

16. Breath test showed that there were 18 micrograms of alcohol in 100 ml of the Defendant’s breath sample. It was within the prescribed statutory limit.

17. The Defendant refused to sign on the record of interview which was a post-record of what he said under caution.

18. PW2 was treated in a hospital. PW2 sustained tenderness and redness on his chest wall. He was discharged from the hospital after treatment. Sick leave for 2 days was granted.

19. PW3 was treated in a hospital. PW3 sustained tenderness on his left chest wall, his left elbow, and his left knee. He also sustained abrasion on his left face. He was discharged from the hospital after treatment. Sick leave for 1 day was granted.

20. The total distance of the “car chase” was measured to be around 18.7 kilometres.”

Mitigation

3. The defendant is now aged 25. He is single and was born in Hong Kong. Before he was incarcerated, he was cohabitated with his girlfriend aged 23 and they have a 5 year old son. The cohabitant is a housewife and the family has been living in a village house in Yuen Long for the last four years. According to the Drug Addiction Treatment Centre (“DATC”) Report which I have called for the defendant, he dropped out of school without completing Form 2. Thereafter, he did not receive any further education or vocational training. After leaving school, he started working as a delivery worker. Thereafter, he had also worked as a salon assistant and a labourer in a re-cycling company for earning his living. Prior to his present jail custody, he worked as a pet groomer with a monthly income of around $10,000.  

4. The defendant had a total of 7 previous criminal convictions, including “theft”, “robbery”, and also similar records of “possession of dangerous drugs”, “assaulting a police officer” and “dangerous driving”. He first transgressed the law in 2001, committing the offence of “theft” for which he was placed on probation for 12 months. The Probation Order was later extended to 18 months and also 21 months because of the subsequent offences of “robbery” in 2002 and also the breach of the Probation Order in 2003. He was later sentenced to the Detention Centre instead in 2004 at the age of 17 for another charge of “possession of dangerous drugs”. As for his last conviction, he was sentenced to 16 months’ imprisonment and disqualified of driving for 18 months very recently on 5 June 2012 for the offence of “dangerous driving” (DCCC 66/2012 refers), together with the activated 6 weeks’ suspended sentence for another case of “possession of dangerous drugs” (TMCC 1975/2011 refers), making a total of 16 months and 6 weeks’ imprisonment. As for traffic records, the defendant first obtained his driving license in 2008. Apart from the last conviction of “dangerous driving”, he has no other traffic conviction but over the years, he was fined in numerous occasions for fixed penalty payments for minor traffic offences such as speeding and failing to comply with traffic signs.

5. In mitigation, Mr Fung acting for the defendant submitted that the defendant did not have an appalling driving record and he was very remorseful and pleaded guilty at the first opportunity.  The defendant has also written a letter to the court expressing his regrets and how much he was caring for his girlfriend and their son. The defendant begged the court to treat him leniently so that he could be discharged sooner to take care of the family. Mr Fung properly reminded the court that the defendant was only sentenced a few weeks ago in the District Court and urged me to take into account his current sentence and apply the principle of totality in considering the total sentences for these two cases.

Sentencing Considerations

Charge 1

6. In SJ v Wong Wai Hung CAAR 7/2010 (unreported), the Court of Appeal noted that,

“21. In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving.

22. … Culpability is the determining factor.”

7. In SJ v Liu Kwok Chun CACC 3/2009, the Court of Appeal recognized that:

“the defendant’s culpability should be the basis of the sentencing exercise and on this basis, an appropriate sentence is to be determined”.

8. In para 37 of the same case, it was held that:-

“In assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness.”

The defendant’s Culpability in Charge 1

9. The list of what the court considered to be aggravating factors in the English case of R v Cooksley [2004] 1 Cr App R (S) 1,11 included a number of matters such as the consumption of drugs or alcohol, excessive speed, racing, competitive driving, showing off, a disregard of warnings from fellow passengers, a prolonged persistent and deliberate course of very bad driving or aggressive driving, for example: persistent inappropriate attempts to overtake or cutting in after overtaking, using a mobile phone, driving when suffering from a known medical condition; other offences committed at the same time, for example: driving without holding a driving licence, driving whilst disqualified, driving without insurance, and driving while a learner without supervision.

10. In this case, it is clear that the manner of driving exhibited by the defendant falls into the more serious category of “ a selfish disregard by the driver for the safety of other road users with a degree of recklessness.” Many of the aggravating features as stated in Cooksley were also present in our case such as a prolonged persistent (18.7 km pursuit) and deliberated course of very bad driving (failing to obey traffic signs and stop before red signals) or aggressive driving (speeding at 140 km/hr, overtaking by cutting across the continuous double white line and even travelling against traffic flow for 0.3 km) and a total disregard of warnings from the police officers indicating the defendant to pull over and stop his vehicle.

11. This is a case where the defendant had obviously appreciate the risk of his action which might cause danger to the police officers giving chase and the other road users, but consciously and irresponsibly went on to take it.  The defendant had blatantly disregarded the safety and well being of the police officers and the other road users and had endangered their lives.

12. All the prevailing circumstances of the case showed that the manner of the defendant’s driving was obviously dangerous. It is only fortunate that no other vehicle was damaged and road users were injured as a result.

13. Furthermore, the defendant committed the offences in the present case  while he was on bail for another “dangerous driving” case of DCCC 66/2012 which was committed by him only some 4 months before the present offence, showing a total contempt for the legal system that is most worrying.

The Sentence

14. The maximum sentence for dangerous driving is a fine of $25,000 and imprisonment for 3 years. There is also a minimum disqualification period of 2 years, this being a 2^nd conviction for dangerous driving and a mandatory requirement for an order for the defendant to attend and complete a driving improvement course.

15. There are no sentencing guidelines but in sentencing I have considered the following authorities:-

The Secretary for Justice v Ko Wai Kit, Paul, CAAR 12/2001

16. The respondent, aged 22, was sentenced after trial to 12 months’ imprisonment for one charge of dangerous driving and 1 weeks’ imprisonment for resisting Police officers. The Secretary for Justice applied to review the sentence. The respondent’s driving was described by the Court as a shocking case of dangerous driving that clearly falls within that band that can be called the worst of its type. The Court described the course of the driving as follows:

“6. A closer account reveals that after the respondent drove off from Jordan Valley Road, he steered his van the wrong way against traffic on a one way road, and failed then to stop at red traffic signals. He was pursued. At the junction of On Wah Street and Chun Wah Road, the van struck a petrol tanker. But the respondent drove on. He struck two more private cars on Princess Edward Road East while passing through a gap between them. Not surprisingly, both vehicles were damaged.

7. A Police Emergency Unit vehicle, car no. 52, tried to block the traffic on Price Edward Road East, but it, too, was hit by the van, and was as a result rammed into the concrete barrier of a flyover. The driver of car no. 52, a police officer, was injured and the vehicle damaged. Alerted to the fact that the respondent's van was approaching Prince Edward Road West, another police officer stopped the traffic near the junction of Prince Edward Road West and La Salle Road. The respondent managed to evade the block by driving through a gap but not before causing the officer to fear that he was to be run down by the respondent, so much so that he drew his revolver and fired at the van.

8. On the respondent went, driving as dangerously as before. The van turned left from Prince Edward Road to Waterloo Road, heading towards Princess Margaret Road. When it reached Chatham Road near Austin Road, he drove the van across the hard shoulder to the opposite lane and then travelled against the flow of oncoming traffic. He then turned right into Austin Road, heading towards Canton Road. When the van reached Kimberley Road in Tsimshatsui, it collided with a taxi and three private vehicles, causing injuries to one driver and to a passenger. The van then reversed and damaged a lorry and three police motorcycles. The journey was finally at its end.”

17. One of the grounds of mitigation put forward was that the respondent drove as he did because he was driving under the influence of ‘ice’. The Court of Appeal considered that it was not a mitigating factor but an aggravating one.

18. The Court considered that the manner of the respondent’s driving called for a 3 year starting point. They allowed the Application for Review and set aside the sentences imposed by the judge, substituting for the dangerous driving charge a sentence of two years' imprisonment and a sentence for the resisting police officer charge of 12 months' imprisonment to run consecutively, resulting in a total of three years' imprisonment. The Court also substituted the original period of disqualification of 2 years with one of 5 years, on the ground that the respondent ‘has demonstrably shown himself to be a menace to pedestrians, and to the driving public and their passengers.’

19. The Court of Appeal further opined that in cases such as that one, the maximum sentence was inadequate to reflect the severity of the crime and wondered whether the legislature had in mind cases such as theirs.

HKSAR v Jim Chong Shing, CACC 186/2003

20. The Police conducted an anti-illegal road racing operation at Tuen Mun Road, New Territories. A roadblock was set up at Tuen Mun Road near the Tuen Mun town centre.

21. The appellant was one of 5 private vehicles that approached the road black at high speed shortly after 3am. Upon seeing the road block, all 5 cars made U-turns and travelled against the traffic at high speed. Meanwhile, 2 Police vans had been driven in place to block off the road that the cars came from. The appellant’s vehicle was the first to arrive at the Police vans. It did not stop and collided with the vans, but managed to pass through.

22. The appellant continued to drive his car against on-coming traffic. A Police officer on motorcycle gave chase. There was one point when both the appellant and the police had stopped their respective vehicles and were side by side on the road. The Police officer ordered the driver to turn off the car’s engine. On hearing this, the appellant suddenly revered his vehicle into another road. The Police officer continued to chase after the car but failed to catch up and eventually lost sight of it. The chase lasted for more than 10 minutes. The appellant was later identified by the Police officer in an identification parade.

23. The learned trial judge adopted a 2½ years’ imprisonment starting point in relation to the dangerous driving charge. The Court of Appeal said:

“27. There is no doubt that this was an appalling case of dangerous driving. In sentencing the Applicant, the Judge considered all the relevant circumstances, including the disobeying of the police's commands to stop, the driving at a high speed against the flow of on-coming traffic, the speeding at up to 80 kmh in excess of the speed limit for a period of 10 minutes and the overtaking a vehicle by crossing double white lines.

28. The Judge was aware of the Applicant's previous convictions. There are many, and in particular, they contain 2 charges of dangerous driving in 1979, 1 charge of dangerous driving in 1981, 1 charge of reckless driving in 1988, motor racing and reckless driving in 1994, speeding and dangerous driving in 2003.

29. The Judge did not equate this case with Secretary for Justice v Ko Wai-kit [2001] 3 HKLRD 751 in which, for a similar series of offences, a starting point of 3 years' imprisonment was taken. The Applicant in that case had committed his offences at a busy time of day - 5.30 p.m. and had damaged a number of other vehicles and caused injuries to a number of people. In this case the offences were committed at night when the roads were not busy and the damage was limited to 2 police vehicles. However, the potential for damage on a scale approaching that in Ko Wai Kit was there and the Applicant demonstrated exactly the same disregard for the safety of other road users and the sanctity of other peoples' property as the offender in Ko Wai Kit did. The Judge adequately reflected the factual difference between the two cases by taking a lower starting point of 2 1/2 years' imprisonment for the dangerous driving offence.”

The imprisonment term

24. By comparison, the manner of driving in present case is nearly as bad as the above two cases except that no vehicle was damaged and no person was injured. Moreover, the defendant did not have an appalling driving record such as the applicant Jim Chong Shing. I therefore consider that a lower starting point of 2 years’ imprisonment is appropriate but because it was committed whilst on bail which was just granted by the District Court on 6 February 2012, the starting point has to be increased by 6 months to reflect the serious contempt for the court by the defendant. The sentence is reduced by 1/3 on account of his plea which is about the only mitigating factor. The sentence on Charge 1 is therefore 20 months’ imprisonment.

Disqualification

25. In DCCC 66/2012, the defendant was already disqualified from driving for 18 months, to be commenced at the conclusion of the imprisonment sentence which is a total of 16 months and 6 weeks. It should be noted however that s 69A of the Road Traffic Ordinance only applies if it is the defendant’s second or subsequent conviction of a relevant scheduled offence (s 69A (1)(b) refers).  Prior to the conviction on 5 June 2012, it appears that the defendant was not convicted of any the same or different relevant scheduled offence. The effect is if the start of the disqualification is to commence normally on the date of his conviction, most, if not all, of the period of disqualification would merge into the term of his imprisonment, as not only such disqualification period was too short but would not have any actual effect. The Court of Appeal has already considered that such kind of a disqualification order would be considered as wrong in principle in SJ v Hung Ling Kwok CAAR 9/2007.

26. Having taken into consideration of the whole circumstances of the case and the sentencing principle, this court disqualifies the defendant from holding or obtaining a driving license for all classes of vehicles for a period of 40 months.

27. Since the new law requiring that the period of disqualification should commence upon the term of imprisonment has been served had already came into effect on 17 December 2010 before the present case, and this being already the second dangerous driving conviction within the last 5 years, the disqualification order that I just imposed is to take effect upon the defendant’s serving of the term of imprisonment.

Driving Improvement Course

28. Once a person is convicted of the relevant offences which include dangerous driving, it is mandatory to order the person to attend driving improvement course unless the court for special reasons decides not to make such an order.  I can find no special reason for not ordering the defendant to attend a driving improvement course and he is to attend and complete such a course at his own expense within the last 3 months before the expiry of the disqualification order. Failing to comply with such an order is an offence and the maximum sentence is one of 2 months imprisonment (Section 72A of Road Traffic Ordinance). 

Charge 2 & 3

29. The maximum imprisonment term for “ assaulting a police officer in the due execution of his duty” contrary to s 36(b) of the Offences against the Person Ordinance, Cap 212 is 2 years’ imprisonment.

30. The assault by the defendant on two police officers is the whole series of action he had taken as he jumped out from the vehicle after colliding with some metal railings. Charge 2 took the form of elbowing the chest wall of PW2 whilst Charge 3 involved the more serious of throwing a glass soft drink bottle onto the chest of PW3 who was chasing him. It should also be noted that this was not the first time the defendant committed this type of offence. I find that given the manner of the assault, a term of imprisonment is appropriate in order to protect the well being of our police officers during their execution of duties. I will adopt a starting point of 9 months’ imprisonment for Charge 2 and 12 months’ imprisonment for Charge 3, reducing it to 6 months and 8 months respectively on each charge as a result of the defendant’s plea of guilty.

Charge 4

31. As this is only a “resisting a police officer” offence which is relatively minor than the two assaulting police charges and the offence took the form of struggling vigorously and yelling to PW2 who was trying to subdue the defendant and pressed him onto the ground, the proper starting point should be 3 months’ imprisonment which is reduced to 2 months for the plea of guilty.

Charge 5

32. Finally, the possession of traces of powder containing ketamine by the defendant is a separate and distinct offence. According to the DATC report, the defendant first started to abuse cannabis and ketamine in 2001. He was sentenced to Detention Centre and was given a suspended sentence for his last “possession of dangerous drugs” offence. However, the report confirmed that he is not a drug dependant and is not suitable for admission to the DATC. Although the quantities involved for this offence is very small, in light of his previous similar records, I consider a starting point of at least 6 months’ imprisonment is appropriate in order to have a deterrent effect on him. The sentence is reduced to 4 months to reflect his plea.

Totality of Sentences

33. The principle of totality requires the court to adjust the sentences for all the above charges.

34. I order that the sentences on Charge 1 and Charge 5 to be served wholly consecutively, ie 24 months as they are entirely separate and distinct offences.

35. I order that only 4 months of Charge 2 to be served consecutively to the 8 months’ term of Charge 3 and the balance concurrent. The sentence on Charge 4 to be served concurrently with Charge 2 as it involved the same police officer. The total sentences for these three charges are therefore 12 months’ imprisonment.

36. The 12 months term of Charges 2 - 4 will also be served consecutively to the 24 months’ term of Charge 1 and Charge 5, making a total of 36 months’ imprisonment.

37. The court has sympathy for the girlfriend and the child of the defendant who are now lacking care and support due to the incarceration of the defendant but the Court of Appeal has repeatedly emphasized that family circumstances virtually played no part in mitigation especially in serious cases such as the present. The defendant should think twice before he committed the offences especially when he was still on court bail.

38. That is not the end of the matter.

39. A sentencing judge must consider the criminality involved not only in the offences for which the accused is being sentenced, but also for which he is currently serving the sentence: see HKSAR v Dinh Khac-nat [2001]HKCU 444. I am required to approach the question of sentence as if the two cases had been heard together: see R v Tong Hoi-fung [1988] 1HKLR 610-611

40. Of the total sentences the defendant had received in the earlier case DCCC 66/2012, 6 weeks imprisonment term was imposed as a result of his breach of a suspended sentence. It was only proper that the sentence should be activated and I shall not disturb this part of the sentence. As to the remaining 16 months’ term for “dangerous driving” offence which is similar to our present case, I therefore order that 8 months of the 36 months’ term in the present case be run concurrently to his current sentence. In effect, he was only required to serve half of his term for his first “dangerous driving” offence. In total, it also represented a notional starting point of 5 ½ years’ imprisonment for these two very bad cases involving a total of six charges committed by the defendant with a span of 4 months whilst on bail.