HKSAR v. CHU YEUNG CHING, IVAN (ALSO KNOWN AS CHU CHING )AND ANOTHER

DCCC 1164/2018

[2019] HKDC 985

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1164 OF 2018

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REASONS FOR SENTENCE

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1.  The 1^st defendant pleaded guilty to 5 charges, namely, (1) Criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap 200 jointly charged with the 2^nd defendant; (2) Resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212; (3) Dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374; (4) Using a motor vehicle on a road without displaying a valid vehicle licence, contrary to regulations 25(1)(a) and 60(3) of the Road Traffic (Registration and Licensing of Vehicle) Regulations, Cap 374E and (5) Forgery of documents, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374.

2.  The 2^nd defendant pleaded guilty to a single charge of Criminal damage jointly with the 1^st defendant.

BRIEF FACTS

3.  On 31 July 2018 at around 2110 hours, Chau Chi Cheong was unloading goods from his medium goods vehicle bearing registration number TD4102 under the escort of police officers, including PW1, DSGT 48296 at Tsing Hoi Circuit outside Chi Lok Fa Yuen, No 18 Tsing Hoi Circuit, Tuen Mun, New Territories, Hong Kong.

4.  About 2115 hours, PW1 saw a gold Toyota private vehicle with chassis number JTNBE40K003013201 (“the Vehicle”) stopping at the front offside of the medium goods vehicle TD4102.

5.  The 1^st defendant alighted the Vehicle from the driver’s seat and threw a brick at TD4102 and broke its windshield.  (1^st charge )

6.  PW1 revealed his police identity and shouted at the 1^st defendant to stop.  The 1^st defendant ignored PW1 and got on the Vehicle and was about to drive off with the 2^nd defendant sitting at the front passenger seat. 

7.  PW1 gave chase and tried to stop the 1^st defendant leaving by extending his right hand into the Vehicle through the driver’s window.  The 1^st defendant continued to drive on causing PW1 to fall and hit against the concrete block on the side of the road.  (2^nd charge )

8.  PW1 ran in pursuit of the Vehicle along the offside lane.  The Vehicle was blocked by a stationary bus on the nearside lane and another vehicle driving in front of it on the offside lane.  The 1^st defendant therefore swerved the Vehicle towards the pedestrian pavement, drove through the rear of the stationary bus and onto the pedestrian pavement, which a Mr Kwok was walking along it.

9.  PW1 continued to run in pursuit and was about to close in on the Vehicle when the 1^st defendant reversed along the pedestrian pavement.  At this moment, the Vehicle sped towards PW1 and was about to run down PW1, when PW1 pointed his pistol at the Vehicle and shouted “Police! Stop, or I will fire!”. 

10.  However, the 1^st defendant ignored the warning and continued speeding towards PW1.  PW1 then aimed at the driver’s seat and fired.  The 1^st defendant was undeterred.  PW1 fired a second time.  Instantaneously, PW1 dodged the approaching Vehicle.  The Vehicle drove past PW1 by a very short distance and he fell on the ground.

11.  PW1 sustained abrasive wounds of about 2 cm in his left knee and both elbows.  He also had mild swellings in his left palm.  (3^rd charge)

12.  At about 2154 hours on the same day, the Vehicle was found abandoned near the junction of Tong Yan San Tsuen Interchange and Shan Ha Road in Yuen Long with the engine still switched on.  Its front passenger’s window was shattered.  A bullet hole was found on the nearside side mirror and fragments, consistent with bullet jackets were found inside the side mirror.  A piece of fragment consistent with bullet jacket was also found inside the Vehicle on the floor of the driver’s seat. 

13.  Upon investigation, no valid vehicle licence was on display in the Vehicle and its registration mark VJ8309 was found hidden behind the registration mark EP7782 on display.  (4^th and 5^th charges)

14.  A brick, similar to the two bricks seized at the scene which the 1^st defendant threw a brick at medium goods vehicle TD4102, was found on the carpet of the front passenger’s seat where the 2^nd defendant was seated.

15.  The 1^st defendant later sought treatment for his wounds at Pok Oi Hospital at 2200 hours on the same day.  He was subsequently transferred to Tuen Mun Hospital. 

16.  The 1^st defendant was found to have a deformed bullet at the end of the bone tunnel inside an open wound over his right anteromedial distal thigh.

17.  The 2^nd defendant was arrested at Royal View Hotel in Ting Kau at about 1150 hours on 3 August 2018.  He was examined by forensic medical officer on the same and was found to have sustained:-

(i) Multiple small scabbed wounds surrounded by reddening margins, each measuring up to about 3 mm across, covering an area of 15 cm x 8 cm scattered over the lower front of his right thigh and right knee; and

(ii) Several small scabbed wounds surrounded by reddening margins, each measuring up to about 3 mm across, covering an area of 8 cm x 5 cm and scattered over his left knee.

18.  The forensic medical officer opined that the finding of multiple small scabbed wounds was consistent with healing cuts produced by shattered glass fragments impacted on the involved area, inflicted about 2 days before examination.

DEFENDANTS’ BACKGROUND & MITIGATION

1^st defendant

19.  The 1^st defendant has a previous criminal record, namely 10 convictions on 5 occasions, with two similar convictions, one of ‘careless driving’ in 2011 and a more recent ‘dangerous driving’ conviction in August 2018.  He has also a number of traffic records.

20.  The 1^st defendant is now 25 years of age and lived with his parents and younger sister.

21.  Ms Ko, counsel for the 1^st defendant submitted three letters in supplement to her written mitigation.  They are (i) 1^st defendant’s written letter expressing his remorse and asking the court’s leniency; (ii) Ms Ng Wai See of Hong Kong Christian Service which painted a picture of the 1^st defendant being a conscientious young man, keen in learning various trades and enhancing his working skills; and (iii) Mr Leung Kwok Ki of The Hong Kong Christian Kun Sun Association Ltd who visited the 1^st defendant whilst in custody at Lai Chi Kok Reception Centre.  Mr Leung said that the 1^st defendant has learnt a hard lesson and would not recommit any criminal act.

22.  Counsel for the 1^st defendant further submitted that her client had already suffered an immense punishment from his foolish actions, namely the gunshot wound to his leg which required an operation.  However, I consider that any suffering from the gunshot wound was a result of his own doing and he had only himself to blame.

23.  The only mitigating factor is his guilty plea at his first opportunity which he is entitled to a full one third discount in his sentence.

2^nd defendant

24.  The 2^nd defendant has a previous criminal record, namely 5 previous convictions on 4 occasions.  He has a similar conviction of “criminal damage” in 2012. 

25.  The 2^nd defendant is now 25 years of age and lived with his father and younger brother.

26.  Mr Tam, counsel for the 2^nd defendant submitted that his client’s role in the 1^st charge was one of a “lookout”.  Mr Tam submitted that the 2^nd defendant’s role was a minor one.

27.  The 1^st and 2^nd defendants acted jointly in committing the offence in the 1^st charge.  Each had its own important role to play, without which, the crime would not be executed smoothly. In my view, they are of the same culpability in this crime.

SENTENCE

1^st charge (both defendants)

28.  The criminal damage was one of throwing a brick at a medium goods vehicle bearing registration number TD4102 in the evening of 31 July 2018.  The 1^st defendant was the perpetrator of the crime and the 2^nd defendant acted as the lookout.  However, at the time of the offence, there were others present at the scene and by throwing stone at the vehicle, the defendants were in plain disregard to the likelihood that someone might got hurt as a result of their act.  I therefore adopted a starting point of 6 months’ imprisonment against both defendants and giving them a 1/3 discount, I sentenced them to 4 months’ imprisonment for the 1^st charge.

2^nd charge (1^st defendant only)

29.  The 1^st defendant ignored PW1’s warning to stop his vehicle and continued to drive on even when PW1 extended his hand into the driver’s window to stop him from driving.  This is a very dangerous act of resisting a police officer in his execution of duties.  The 1^st defendant was lucky that PW1 did not suffer more serious injuries in the course.  The act is one of the worst of its kind and I therefore adopted a starting point of 9 months’ imprisonment against the 1^st defendant and giving him a 1/3 discount, I sentenced him to 6 months’ imprisonment for the 2^nd charge.

3^rd charge (1^st defendant only)

30.  Needless to say, the 1^st defendant’s manner of driving in the evening of 31 July 2018 whilst in pursuit by PW1 was atrocious.  He blatantly neglected the safety of pedestrian users and swerved his vehicle onto the pedestrian pavement.  A Mr Kwok was then walking on the pedestrian pavement and it was lucky that no harm was done to him.  The 1^st Defendant continued his ferocious driving manner as he tried to escape from PW1’s pursuit.  His vehicle sped towards PW1 despite his warning to stop or he would fire at him.  The 1^st defendant continued to ignore PW1’s warning and as a result, two gun shots were fired to stop him.  The 1^st defendant’s dangerous driving in that evening is one of the worst of its kind.  I therefore adopted a starting point of 24 months’ imprisonment and giving him a 1/3 discount, I sentenced him to 16 months’ imprisonment for the 3^rd charge.

4^th – 5^th charges (1^st defendant only)

31.  As for the charges in relation to displaying a false registration mark EP7782 and failing to exhibit a valid vehicle licence, the purpose of which should have been to avoid detection of the vehicle.  I adopted a starting point of 6 weeks’ imprisonment and giving him 1/3 discount, I sentenced him to 4 weeks’ imprisonment for the 4^th charge.  For the 5^th charge, I adopted a starting point of 9 months’ imprisonment and giving him 1/3 discount, I sentenced him to 6 months’ imprisonment.

TOTALITY PRINCIPLE

32.  Since all these offences arose from the same incident, I have to take into account the totality principle in sentencing the 1^st defendant.

33.  I ordered that 2 months’ imprisonment for the 2^nd charge to run concurrently to the 1^st charge.

34.  I ordered that the 16 months’ imprisonment for the 3^rd charge to run consecutively to the 1^st and 2^nd charges.

35.  I ordered that the 4 weeks’ imprisonment for the 4^th charge to run consecutively to the 1^st to 3^rd charges.

36.  I ordered that 6 months’ imprisonment for the 5^th charge to run concurrently to the 4^th charge.

37.  The 1^st defendant is therefore sentenced to a total of 30 months’ imprisonment in relation to the 1^st to 5^th charges.

38.  Since this is the 1^st defendant’s second conviction of “dangerous driving”, the previous conviction being on 3 August 2018, according to section 37(2A)(b) and 69A(2) of the Road Traffic Ordinance, Cap 374, I ordered a 4 year disqualification in respect of all classes of vehicle for the 3^rd charge, such disqualification period is to start after the 1^st defendant finishes his term of imprisonment.  The 1^st defendant shall attend and complete, at his own costs, the Driving Improvement Course within the last 3 months of the disqualification period. 

39.  The prosecution applied for a compensation order against the 1^st and 2^nd defendants for the damage caused to the owner of the medium goods vehicle TD4102, the application of which was not contested by the defendants.

40.  I therefore ordered that the 1^st defendant shall pay his half share of compensation in the sum of HK$1,250.00 to Mr Liu Shing Lap, the owner of TD4102 no later than 14 days after his release from imprisonment.

41.  I ordered that the 2^nd defendant shall pay his half share of compensation in the sum of HK$1,250.00 to Mr Liu Shing Lap, the owner of TD4102.  The sum shall be deducted from his bail money.