HKSAR v. Chung Kuen shing

DCCC524/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 524 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of six offences. They are dangerous driving; driving whilst disqualified; using a motor vehicle without third party insurance; possession of a dangerous drug; and two charges relate to use of a defective vehicle and using an illegal visual display unit.

2.  All the offences relate to the same incident which occurred on 20 March 2011.  The defendant has pleaded guilty and accepted all the facts and I convicted him of each of those six offences which are fully proved by the facts the defendant has accepted.

3.  The convictions arise out of what can be described as a high speed chase by police of the defendant on 20 March 2011. It occurred on a section of the Tolo Highway in the direction of Kowloon on the Kowloon-bound lane.  The defendant was driving a vehicle which had the registration plate of MV 2997 and he was initially seen by the police, who were following in their own police vehicle, who at a high speed crossed double white lines and then overtook the vehicle, a bus, from the rear off-side.  The vehicle then having overtaken the bus cut back into the outside lane again. The police officers came alongside and tried to get the defendant to stop the vehicle. 

4.  The reaction then was for the vehicle to go from the fourth lane over to the first lane and into the passing bay of the highway, overtake another bus which was in the first lane and the move back from the first lane to the third lane.  Police estimated that the defendant’s vehicle could have been travelling at up to 160 kilometres an hour at that point.

5.  The defendant then proceeded on, cutting off another vehicle at high speed, cutting across from one lane to another, causing other vehicles to swerve sharply.  The police maintained their pursuit.  The defendant was seen again to swerve to the second land.  At the time he was behind another vehicle and he was flashing his headlights and pressing his horn so that that vehicle would swerve to the right to avoid being hit.  The police were giving clear warnings to the defendant with flashing headlights and the siren sounding.

6.  The pursuit continued.  Eventually, the defendant exited on the Lion Rock Road for Tai Wai and his vehicle went out of control and hit a lamp post. 

7.  The defendant was pursued after he left his vehicle.  He was found to have sustained some injuries. 

8.  This all occurred in the early hours - 12.40 to 12.50 am.

9.  The police quickly discovered the defendant was at that time the subject of a 3 year disqualification order.  He was arrested and said he had done it because he was subject to a disqualification order and was afraid of being arrested.

10.  Inside the driver’s door a bag with the methamphetamine was found.  That is represented in the 4th charge as 1.59 grammes of methamphetamine hydrochloride.  The defendant said the “Ice”, which is what it is, was bought for self-consumption for $1,000.

11.  The defendant passed a breath test, there was a negative finding to a breath test.

12.  The vehicle itself was examined later and the defects found.  Some of the front tyre cord structure was exposed and the visual display unit had been installed in an impermissible manner.

13.  Of course the defendant’s disqualification from driving meant that he would be driving without insurance.

14.  Those briefly are the facts.  The true gravamen of the offences lies in the high speed chase that the police had to conduct which fortunately in this case there was no structural damage to any car besides the defendant’s and nobody was injured besides the defendant, and the defendant himself was not alleged to be under the influence of any drink or drugs. 

15.  However, the gravamen of these offences is that they can lead to very serious injuries.  They are highly dangerous to the pursuing police officers, highly dangerous to other road users, and it is indeed fortunate that no serious injury was caused to any other person, but it is the potential for injury that the court has to look at when determining what the proper sentence for these offences is, not just whether actual injury is caused.

16.  I turn to the defendant’s personal circumstances.  I have been given his antecedents.  He is 36 years old, he works as a vehicle repairman, which may be ill-advised given the fact he is disqualified for so many years.  He has a daughter aged 10 years and he lives with his mother.  I am told he was earning around $8,000 per month. 

17.  His criminal record has been put in front of me, a total of 43 previous convictions, so a fairly lengthy criminal record dating back to 1988.  Offences of dishonesty, such as blackmail; offences involving dangerous drugs; and of course offences involving the use of vehicles - taking vehicles without authority; using motor vehicles without insurance; driving without a licence; driving whilst disqualified; and one previous conviction in 2009 for dangerous driving for which he was sentenced to 4 months’ imprisonment.

18.  As far as his driving history is concerned, he also has a very poor record there.  In 2008 he was disqualified for 3 years for driving whilst disqualified, that taking effect from 28 August 2010.  He was further disqualified in May 2010, again for driving whilst disqualified.  He was disqualified for 3 years with effect from 28 August 2013, with an order that he resits his driving test, and then for another offence in December 2009 in Fanling he was again sentenced for driving whilst disqualified and disqualified for 3 years with effect from 28 August 2016.  By my calculations, that means the defendant is currently disqualified up until 28 August 2019.  He already has an order that he resits his driving test which was imposed on 15 May 2008, and also on 10 December 2009 he was apparently ordered to complete a driving improvement course.

19.  I am told by counsel the defendant is remorseful and has clearly shown that by his admission of these charges. 

20.  The prosecution point to certain aggravating features in relation to this case of dangerous driving.  They say excessive speed is shown, there are elements of competitive driving, and disregard of warning from the police.

21.  I turn to the sentencing in respect of these offences.

22.  On the 1st charge, that is one of dangerous driving, the current maximum sentence is still 3 years’ imprisonment.  I am aware of the case of Ko Wai Kit, which shows the kind of driving that can lead to the maximum sentence of 3 years’ imprisonment, which is driving that quantitatively was more serious but qualitatively is of the same quality in that it involves a chase with chasing police officers and clearly sentences at or near the maximum sentence of imprisonment that can be imposed are appropriate for these kind of offences.

23.  I have also taken into account the defendant has previously offended and committed a previous offence of dangerous driving in 2009.

24.  I have decided that the starting point for sentence will be less than the maximum.  I will take a starting point for sentence of 2½ years’ imprisonment, which is 30 months’ imprisonment.  I shall give a deduction of one-third of that sentence for the defendant’s plea of guilty, which leads to a sentence of 20 months’ imprisonment. 

25.  Clearly a substantial additional disqualification for driving is warranted by this offence and I will make an order that the defendant be disqualified from driving for 4 years for this offence.

26.  The next offence is the second offence, which is one of driving whilst disqualified.  Again, the defendant has a number of previous convictions for this offence.  I shall take a starting point of 9 months’ imprisonment, reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.  I shall disqualify him from driving for 3 years.

27.  On the third offence of using a motor vehicle without the third party risks, I shall also take a starting point of 9 months’ imprisonment, reduce that by 3 months to 6 months’ imprisonment, and order disqualification from driving for 3 years.

28.  On the fourth offence, the possession of 1.58 grammes of methamphetamine hydrochloride, I shall take a starting point for sentence of 12 months’ imprisonment and reduce that to 8 months’ imprisonment for the defendant’s plea of guilty.

29.  On the two remaining offences, I will take a starting point for sentence of 12 days’ imprisonment on each and reduce that down to 8 days’ imprisonment on each of the 5th and 6th charges.

30.  I have to determine the way in which those sentences will act having regard to the overall totality.

31.  I am going to order that the periods of imprisonment on the first, second, third, fifth and sixth offences to be served concurrently. 

32.  As far as the sentence on the 4th charge is concerned, I am going to order that 4 months of that be served concurrently to the 1st, 2nd, 3rd, fifth and 6th charges and 4 months to be served consecutively.  This will give a total sentence of imprisonment for all those offences of 24 months’ imprisonment. 

33.  The disqualifications on the 1st, 2nd and 3rd charges will of course run concurrently because they are imposed on the same time.  They must of effect of course also run consecutively to the existing disqualification, which means that they will take effect from 28 August 2019.

34.  I also note that under section 69A of Cap.374 there is a mandatory requirement that the sentences of the disqualifications start at the end of the defendant’s period of imprisonment, but that would in fact mean that the disqualifications would start at an earlier date and so I find there are special reasons to not make an order under section 69A, Cap.374.

35.  I find there are also special reasons not to make an order that the defendant have another driving improvement course under section 72A of Cap.374, those reasons being that the defendant is already subject to such an order and also is also subject to a retesting order as well, so the imposition of a further order under that section 72A is unnecessary.

36.  In summary, the overall sentence of imprisonment in this case is 24 months’ imprisonment; the overall disqualification is 4 years with effect from 28 August 2019.