HKSAR v. IP HO YIN

DCCC 247/2018

[2018] HKDC909

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 247 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of dangerous driving, contrary to section 37 of the Road Traffic Ordinance[1] (charge 1) and one charge of taking a conveyance without authority, contrary to section 14 of the Theft Ordinance[2] (charge 2).

2.  Full details of the offences are set out in the facts admitted by the defendant on 26 July 2018.  In summary on 3 August 2017 Mr Chan Cham Kit asked the defendant, a car repair and maintenance worker, to repair private car SC 6795 and to assist him in renewing the vehicle licence.   Mr Chan gave the defendant the car keys, licence document and residential proof.

3.  At around 0324 hours on 10 August 2017 police officers in a police vehicle saw the defendant in the driver’s seat of SC 6795, which was parked on a double yellow line on Kuk Ting Street in Yuen Long.  When the police vehicle drove alongside SC 6795 and the police asked the defendant to wind down the window for enquiry, the defendant suddenly accelerated along Kuk Ting Street, a street with a 50km/h speed limit.

4.  At the time the defendant was disqualified from driving, having been disqualified for a period of two years from 8 July 2016 to 7 July 2018 for an offence of driving without insurance[3].

5.  As the police vehicle gave chase the defendant drove at around 80km/h in a zig zag manner causing other vehicles to brake abruptly.  The defendant travelled about 1.5 km along Tai Tong Road cutting lanes and jumping four sets of red traffic lights.  Mr Chan has submitted to court a map showing the route taken by the defendant[4].

6.  At the junction of Tai Tong Road and Shap Pat Heung Road the defendant failed to comply with the red traffic signal causing four vehicles to brake abruptly to avoid a crash.    

7.  At the junction of Tai Tong Road and Tai Kei Leng Road the defendant crashed into the back of a taxi, pushing the taxi forward which then crashed into a medium goods vehicle causing the windscreen of the taxi to crack.   

8.  Mr Chan explained that the taxi was moving at the time when the defendant ran into the back of the taxi, causing the taxi to move into the layby where the medium goods vehicle was parked as shown in photographs 36, 47 & 48 submitted to court by the prosecution. 

9.  In fear that the police would catch him the defendant continued to drive until he crashed into a crash cushion on the opposite side of the road.  At this stage the police saw the defendant jumping out of the car and running away.  The police gave chase and intercepted the defendant.

10.  The taxi driver and a passenger in the taxi were injured and sent to hospital.  The taxi driver suffered from hematoma, abrasions and lacerations including abrasions over the right side of the forehead.  The passenger suffered abrasions to his right knee.  Both the taxi driver and the passenger have fully recovered from their injuries.

11.  The taxi incurred repair cost of $30,000 and a towing fee of $1,000.  Photographs 36, 37, 38 & 41 show the damage to the taxi.  The medium goods vehicle incurred repair cost of $4,000. 

12.  Photographs 57, 58, 61 & 62 show the vehicle driven by the defendant was also extensively damaged.  Mr Chan informs the court that the vehicle was a total write off. 

13.  Under caution the defendant admitted, inter alia, that without the consent of Mr Chan he drove the car to go to the ATM; when he was intercepted by the police he drove away because he was disqualified from driving; he jumped the red lights; crashed into the rear of a taxi; and in fear that the police would catch him continued to drive until he crashed into a crash cushion on the opposite side of the road.

Mitigation

14.  In passing sentence, I have taken into account everything said on behalf of the defendant by Mr Boyton, including that the defendant has a drug problem but was not at the time under the influence of drugs or alcohol. 

15.  The defendant cannot be given credit for a clear record having previous convictions, inter alia, gambling offences; drug offences and motoring offences including one offence of dangerous driving in 2013 and one offence of taking a conveyance without authority in 2016.  

Dangerous driving (charge 1)

16.  In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[5]. These factors were revised in R v Cooksley[6].  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksleyas applied in the Secretary for Justice v Poon Wing Kay & another emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender[7].

17.  This principle was repeated in Secretary for Justice v Lau Sin Ting where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[8].

Aggravating features

18.  The degree of seriousness depends on the precise circumstances of the driving.  In Poon Wing Kay the court said that one major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or with a degree of recklessness.  

19.  The aggravating features in this case are the driving was a prolonged, persistent and deliberate course of verybad driving.  The defendant, in an attempt to escape from the police because he was disqualified from driving and therefore had no insurance, drove in a zigzag manner at a speed which was in excess of the speed limit and through four sets of red lights causing other vehicles to brake abruptly to avoid a collision.

20.  Driving in this manner put all other road users at risk, including risk of serious injury, which risk was foreseeable.  The defendant collided with a taxi resulting in injury to the driver and a passenger and extensive damage to the taxi and the car he was driving and minor damage to the medium goods vehicle. 

21.  Fortunately, the injuries to the taxi driver and his passenger were not more serious, in particular considering how the taxi collided with the medium goods vehicle as shown in photographs 42, 47 & 48. 

22.  Taking into account all the aggravating features; the defendant has one previous conviction for dangerous driving; the taxi driver and passenger have fully recovered from their injuries; the defendant was not under the influence of drugs or alcohol, I am satisfied the proper starting point after trial is one of 2 years and 6 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 8 months’ imprisonment.

Voluntary work

23.  Mr Boyton asks that credit should be given to the defendant for his voluntary work in 2017 and 2018 when he cooked and delivered food to old aged homes as particularised in the three certificates submitted to court[9].

24.  Discount is generally reserved for those who have a clear record and can by their voluntary work show they are of positive good character.  Although the defendant is not a person of good character, let alone positive good character, I am of the view the court should recognise his voluntary work.  Accordingly, I reduce the sentence of the defendant by half a month to 1 year and 7 months and 15 days’ imprisonment. 

Taking conveyance without authority

25.  There are no guidelines for the offence of taking conveyance without authority.  This is a serious offence for which immediate custodial sentence may be appropriate. Each case depends on its own facts including whether the vehicle was taken for a joy-ride or for the purpose of committing serious crime.

26.  The defendant admitted that he took the car to drive to the ATM and not in the course of repair.  The defendant did not however tell Mr Chan Cham Kit that he was disqualified from driving and led Mr Chan to believe he had a licence.

27.  Taking into account the defendant has one previous similar conviction in 2016, I am satisfied the proper starting point after trial is 6 months’ imprisonment. Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment.

Totality

28.  I am satisfied the taking of the car for the defendant’s own use without the consent of the owner is separate and distinct from the dangerous driving.  Considering totality of sentence, I order 1 month of the sentence on charge 2 to be served consecutively to the sentence on charge 1 with 3 months concurrent, making a total sentence on the two charges of 1 year and 8 months and 15 days’ imprisonment, which I am satisfied properly reflects the defendant’s culpability on the two charges.

Disqualification

29.  There is mandatory disqualification for dangerous driving unless the court for special reasons decides not to make such an order.  I find no special reasons not to disqualify the defendant.  I am satisfied taking into account the circumstances of the driving that a period of 3 years’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.  

30.  By virtue of section 69A (1) and (2) of the Road Traffic Ordinance, the defendant having previously been convicted of dangerous driving in 2013, the disqualification period is not to start until the defendant has finished serving the term of imprisonment.

31.  By virtue of section 72A (1A) of the Road Traffic Ordinance a court shall order a person convicted of dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons not to order the defendant to attend and complete a driving improvement course. 

32.  The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification expires.  The defendant is warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course notwithstanding the disqualification period may already have ended[10].

Sentence

33.   The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 7 months and 15 days’ imprisonment;

Disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years to commence after the defendant finishes serving the prison term.

The driving licence is to be surrendered within five days.

The defendant is ordered to attend and complete a driving improvement course within the period of 3 months ending on the date on which the disqualification expires.

Charge 2 – 4 months’ imprisonment with 1 month consecutive and 3 months concurrent to charge 1.

The total sentence to be served by the defendant is 1 year and 8 months and 15 days’ imprisonment.