HKSAR v. FU WAI YIN

DCCC 142/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 142 OF 2013

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Reasons for Sentence

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The Charge

1. The defendant appeared before me this morning and pleaded guilty to a total of three charges:  one charge of “dangerous driving”, contrary to section 37(1) of the Road Traffic Ordinance, Cap374 (Charge 1); one charge of “possession of a dangerous drug”, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance Chapter 134 (Charge 2); and finally, one charge of “using a motor vehicle with an illegal visual display unit”, contrary to regulations 37 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap374 (Charge 3).

The Facts

2. I will simply adopt the entirety of the Summary of Facts which has been admitted by the defendant before he was duly convicted of all the charges.  There are altogether nine paragraphs spanning to three pages and I am not going to repeat that now.  In addition, I was further told that the offence took place at 11.53 pm on 4 August 2012.  A street map indicating the route of the escape by the defendant was also supplemented into the court.  The total period of chasing or travelling by V1 driven by the defendant, I was told, was about 4 minutes and the total distance covered during that time was less than 4 kilometres.

The Background and Mitigation of the Defendant

3. In the past, the defendant has two previous criminal records.  In 2006 he was convicted of “wounding” or “inflicting grievous bodily harm” for which he had served a sentence of 3 weeks and ordered to make compensation of HK$3,000.  His last conviction is in 2011 for the offence of “fraud” for which he was sentenced to 2 months’ imprisonment.

4. The defendant first obtained his driving license in 2005.  I was also supplied with his traffic conviction records.  He had two convictions of “careless driving”, both dated 5 years ago before the date of the present offence, and the rest are all fixed penalty offences involving as it were “failing to comply with traffic signals” or “crossing continuous double white line”, for which he was all fined. 

5. The defendant is aged 28.  He is married and he has a 5 years’ old son.  He was a truck driver by occupation and he only had a Form 4 education level.  His father is a civil servant and the mother is a housewife.  He earned a monthly income of about HK$12,000. 

6. In mitigation, his lawyer Mr Chan told me that the defendant have had an argument with the wife.  The marital relationship had since broken down and the wife finally left home in February 2012 and his son was since taken care of by the grandparents.  Each month, the defendant contributed HK$3,000 to his mother.  I was further told that in late July 2012, which is about one month before the present offence, the defendant had developed some arguments with the wife over the maintenance fees.  Feeling unhappy, the defendant had resorted to drinking alcohol with his friends and he was once tempted by his friend to try ketamine to release his unhappiness and pressure.  He purchased a packet of ketamine and he put the packet into his trousers pocket but he did not consume it and before long he had forgotten its existence.

7. Concerning the present offences, Mr Chan told the court that in the evening of 4 August 2012, the defendant was going to Mongkok with a view to returning some money to the wife of a friend from whom he had borrowed some money.  After returning the money, he was intercepted and confronted by the plain-clothes police officers whereupon the defendant suddenly realised the pack of the ketamine was still in his trousers pocket and foolishly he decided to return to his vehicle (V1) which he had bought only a few months ago and flee. 

8. According to the Summary of Facts, altogether during the course of the chasing, three collisions took place.  As a result, two police vehicles (V2 & V3) were damaged as well as a KMB bus (V4).  At one point of the time, the defendant even deliberately reversed his vehicle causing the damage of a police vehicle (V2).  As V1 was trapped by the traffic and the defendant had no room to manoeuvre, he had to give up his flee and was finally intercepted by the police. 

9. Mr Chan tried to persuade the court to be as lenient as possible, indicating and highlighting the fact that all along the defendant was not speeding and he was travelling within the prescribed speed limit.  Furthermore, the defendant did not drive under any influence of drugs or alcohol.  Besides the damages caused to the various vehicles, fortunately there was no injury caused to other road users including the passengers on board of the bus.  He said the vehicle was properly insured and he urged the court to consider imposing a shorter period of disqualification because the defendant relies on his job as a lorry driver to support his livelihood. 

10. In relation to Charge 2, Mr Chan reminded the court that the quantity of ketamine involved in this case was small and also the defendant has no previous drug-related record.

11. In relation to Charge 3, Mr Chan told the court that in fact V1 was a private vehicle purchased by the defendant only a few months before the offence in May 2012.  It was a second-hand car and when the defendant bought the vehicle, the display unit in question was already installed in the car.  According to his instructions, the defendant never used the unit to view any DVD or television programme and he only used it for the purpose of listening to music.  Therefore he urged the court to impose a financial penalty.  All in all, Mr Chan reminded the court the fact that the defendant did not have any appalling driving record and was very remorseful and he pleaded guilty and co-operated with the police. 

Sentencing Considerations

12. In SJ v Wong Wai Hung CAAR 7/2010 (unreported), The Court of Appeal had noted that, and I quote:

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

22. ...culpability is the determining factor.”

13. In another case, the Court of Appeal in SJ v Liu Kwok Chun, CACC 3/2009, recognised that:

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

14. The Court of Appeal went on to hold at paragraph 37:

“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 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

15. In another famous dangerous driving case, R v Cooksley [2004] l CrAppR (S) l.11, the Court of Appeal in England had included a number of factors 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, for insisting on inappropriate attempts in overtake or cutting-in after overtaking, using a mobile phone, driving when suffering from a known medical condition, driving with other offences committed at the same time, for example driving without holding a driving license, driving while disqualified, driving without insurance, and driving as a learner without supervision.”

16. I accept that the present case is not the worst type of dangerous driving case.  A lot of the factors which have been mentioned above does not exist in the present case.  However, it is not to say that this case is not serious.  The fact that the defendant was driving within the prescribed limit was due to, in my judgment, the traffic condition at the time and the location which is a busy street in Mongkok, which obviously would be very different if the defendant was driving in an open road in the New Territories.

17. It is clear when one reading from the Summary of Factsthat the manner of driving that was exhibited by the defendant would fall into the more serious category of “a selfish disregard by the driver for the safety of other road users with a certain degree of recklessness.”  This is a prolonged and persistent piece of bad driving, including as it were, as I have mentioned, deliberately reversing the vehicle to cause the damage to the front of a police vehicle (V2) and also “aggressive driving” by deliberately driving the vehicle and hit the corner of the another police vehicle (V3) as well as the KMB bus (V4) in order to make good his escape, and finally, “a total disregard of warnings from the police officers” indicating the defendant to stop. 

18. In my judgment, this is a case where the defendant had obviously appreciated the risks of his action which might cause danger to the police officers giving chase and also to the other road users, but, consciously and irresponsibly, he went on to take it. Fortunately, no one was injured during the incident but the defendant has blatantly disregarded the safety and well-being of the police officers as well as other road users, including the passengers on board of the bus.  The potential dangers to those other road users cannot be overlooked.  All the prevailing circumstances of this case show that the manner of the defendant’s driving was obviously dangerous. 

The Sentence

19. The maximum sentence for Charge 1 is a fine of HK$25,000 and imprisonment for 3 years.  There is also a mandatory requirement for disqualification and a mandatory requirement for an order for the defendant to attend and complete, at his own cost, a driving improvement course.  There are no sentencing guidelines in this case, but in sentencing, I have considered two authorities: Secretary for Justice v Ko Wai Kit Paul, CAAR 12/2001, as well as HKSAR v Jim Chong Shing, CACC l86/2003.

20. I am not going to go into details of the two cases but after considering the authorities and also the principles, I come to the conclusion that for this charge, a starting point of 2 years is appropriate.  The defendant pleaded guilty which is his only effective mitigation and he would be entitled to a one-third discount. 

21. I have of course sympathy for the parents as well as the young son of the defendant but the defendant should think twice before committing an offence.  It is indeed very foolish for him to drive a vehicle so irresponsibly in such a manner for the purpose of avoiding to be detected by the police for possession of only a packet of ketamine.  He should think of the consequences before he committed the offence and so he only has himself to blame.  For this offence, after the reduction, he will receive a sentence of 16 months’ imprisonment. 

Disqualification

22. Because the defendant was not convicted of any same or different relevant scheduled offence before so I have no power to order disqualification to take effect after the imprisonment.  In other words, the disqualification order should run from today.  Taking into account the fact that the defendant had to serve a prison sentence, if the disqualification period is too short, most, if not all, of the period of disqualification would merge into the term of his imprisonment, and therefore would render very little actual effect.  For this reason, I am going to disqualify the defendant from holding and obtaining any driving license for 3 years.

Driving Improvement Course

23. Once a person is convicted of the relevant offences which include “dangerous driving”, it is mandatory to order the person to attend a driving improvement course unless the court for special reasons decides not to make such an order.  Here I can find no special reason for not ordering the defendant to attend such a driving improvement course under the law and therefore I order that the defendant is to attend and complete such a course at his own cost within the last 3 months before the expiry of the disqualification order.  Failing to comply with such an order is an offence by itself and the maximum sentence is one of 2 months’ imprisonment.  (See section 72A of the Road Traffic Ordinance, Cap 374)

Charge 2

24. The range of sentences for possession of dangerous drugs such as ketamine is between 12 to 18 months. Since the defendant had already been sentenced to 16 months’ imprisonment in Charge 1 in the same proceedings, I do not need to call for any DATC report before sentencing the defendant to a period of imprisonment. 

25. I took into account the defendant has no previous drug-related record and this is his first offence in relation to drugs, I therefore use the lower starting point, namely 12 months.  The defendant pleaded guilty and he would also be entitled to a one-third discount and so the sentence is 8 months’ imprisonment.

Charge 3

26. The maximum sentence of this charge is 6 months’ imprisonment and also HK$10,000 fine. 

27. I bear in mind what the mitigation had revealed that the defendant did not deliberately set up this display unit himself but it was a part of the equipments which were already been fixed when he bought this second-hand vehicle, I would only require him to pay a HK$1,000 fine to dispose of the matter. Because of this small sum I would require him to pay this sum within 14 days from today.  In default, he would have to serve a 7 days’ imprisonment. 

Totality

28. There are two imprisonment terms in respect of Charge 1 and Charge 2 with 16 months and 8 months respectively.  They are in respect of offences of two different natures.  In principle they can be ordered to be served wholly consecutively but because of the totality principle, in the end, I would make an order that 2 months of the sentence of Charge 2 be allowed to run concurrent with Charge 1.  As a result the defendant will serve a total of 22 months’ instead of 24 months’ imprisonment.

Compensation

29. During the course of the chasing when the defendant was trying to make good his escape, he caused damages to two government vehicles used by the police (V2 & V3) as well as a KMB bus (V4).  It is only right that the defendant should be responsible for their repair costs and I was told that the defendant did not dispute the quantum of the damages which has been sought by the prosecution. 

30. I therefore make a compensation order, firstly of HK$91,308 to the Hong Kong SAR Government for the repair costs of V2 and V3, the two police vehicles, and lastly, HK$550 to the Kowloon Motor Bus Company Ltd in respect of the damaged bus V4.  The total compensation order is therefore in the sum of HK$91,858. 

31. Instead of allowing the defendant to make this compensation by way of monthly instalments as requested, I decided simply to give him more time to pay the money in one lump sum.  I order the defendant to pay the compensation on or before 30 September 2015.  I think in so doing, I have already given sufficient time for the defendant to prepare for this payment and if he still fails to make the compensation within time, in default, he will need to serve an additional 6 months’ imprisonment.  This compensation order was made in relation to Charge 1.