HKSAR v. AU CHIN HANG

DCCC437/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 437 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of four offences. They are dangerous driving, driving whilst disqualified, using a motor vehicle without third party insurance, and resisting a police officer.

2.  The defendant has agreed the set of facts and I found those charges proved on those facts and convicted the defendant accordingly.

3.  The amended summary of facts show the offences were committed in the early morning of 15 January 2011.

4.  Very simply, the defendant was a person already disqualified from driving.  The defendant was seen to cut in a lane and the police saw that and attempted to intercept him.  The defendant then drove - to use the old expression - furiously, in order to escape, during the course of which he obviously committed the offence of dangerous driving.  There was a long pursuit at high speed.  The defendant drove in a way that was highly dangerous.

5.  To give certain particulars of that driving, the defendant was initially intercepted in the area of Tuen Mun Road, Tsuen Wan-bound. On seeing the police, he accelerated away through red traffic lights, then drove on the wrong side of the traffic on the Tsuen Wan Road, and then was seen to weave in and out of the southbound lanes on the highway, driving at a speed in excess of 180 kilometres per hour, drove on and off the Yuen Long highway slip road, did a full circuit of the Fairview Park Roundabout, driving on the hard shoulder and overtaking other vehicles.

6.  He cut double white lines and he was driving at a speed at one time between Lok Ma Chau and Kai Leung Roundabout at an average speed of 190 kilometres per hour.  He was seen to drive round another roundabout twice and then jump red lights at speed.

7.  At a place called the junction of Jockey Club Road, Lung Sam Avenue, he again jumped red lights.  He entered San Fung Road on the wrong side, then travelled against the traffic flow, and then he continued to jump red lights.  Then he entered what was discovered as the wrong side of San Cheung Street and collided with a stationary vehicle before coming to a halt. 

8.  He then fled into the M-16 bar, escaping through the rear and he was subdued at Fu Hing Street.  In the course of being subdued, two police officers - the first and second prosecution witnesses - sustained minor injuries as a result of a struggle with the defendant.

9.  It can be seen from this description that the defendant’s driving approached the worst form of dangerous driving.  He was fortunate that neither himself nor anyone else was injured in the course of the chase and that he only actually collided with only one stationary vehicle.

10.  The defendant was disqualified from driving at the time.  Accordingly he must also have been using the motor vehicle without third-party insurance, and finally, from the facts, it is clear that he resisted the first and second prosecution witnesses, and the officers are described as sustaining minor injuries.

11.  I have been given the defendant’s criminal record and antecedent statement.  The defendant has a total of 15 recorded previous convictions.  In 2000 he was sentenced to a Drug Addiction Treatment Centre for a number of offences, including assaults, robberies and theft. Again in 2003 he was sentenced to a Drug Addiction Treatment Centre for taking conveyance and careless driving and also driving a motor vehicle without third-party risks.  He has also been sentenced to 5 years’ imprisonment for trafficking dangerous drugs in 2006, and more recently, possession of offensive weapon in 2011.

12.  Of some relevance to the sentencing today, firstly the conviction for using a motor vehicle on a road without third-party risks in 2003, and more significantly, the fact that he was disqualified on 9 December 2010 for driving at excess of the speed limit by more than 45 kilometres per hour, which, on my understanding, is a relevant scheduled offence for the purpose of section 69A of the Road Traffic Ordinance.

13.  I heard mitigation from the defendant as advanced by counsel.  He, through counsel, described he is 28 years old and he has remorse.   He is educated to Form 3.  He had come from a broken family. His mother at one time wanted him to go to Canada so that he could lead a better life.

14.  I am told that driving motor vehicles quickly is one of his pleasures in life and that is certainly reflected in his convictions for driving in excess speed.

15.  I am told that his family has been supportive of him whilst in Lai Chi Kok prison.

16.  He is aware that his driving was dangerous and is aware that a custodial sentence must be imposed for an offence of this nature. The defendant clearly today has shown remorse by his plea.

17.  I will deal with the specific offences and the starting points for sentence and the consequent disqualifications that should be imposed.

18.  On the first offence, the offence of dangerous driving, the maximum sentence that can be imposed on this offence is one of 3 years’ imprisonment.  I have to consider whether this is the most serious form of dangerous driving that is possible to come before the court.  The case of Ko Wai Kit shows what is considered by the courts to be the most serious form of dangerous driving and that case, like this case, involved a high-speed chase.  The high-speed chase in Ko Wai Kit was slightly more risky than this one, but only slightly.

19.  For that reason, I will not take the maximum possible sentence as my starting point.  I will, in fact, take a sentence of 33 months’ imprisonment as the starting point of the sentence.

20.  The defendant is entitled to a reduction of one-third by way of his plea of guilty.  That will lead, on that charge, to a sentence of 22 months’ imprisonment.

21.  There must be a disqualification from driving. Although this is the defendant’s first conviction of dangerous driving, it is still open to me to disqualify the defendant for a considerable period of time.   A case such as this obviously involves substantial disqualification.

22.  I shall order the defendant to be disqualified from driving for 4 years.  I shall also order that, under section 70(2), the defendant is to be disqualified until he has passed a test of competence.

23.  On the second offence, I will, after deduction for his plea of guilty, I will order a sentence of 1 month’s imprisonment and also a disqualification for 1 year.

24.  Under the third offence, this being the defendant’s second offence of this nature, I will impose a sentence, after deduction of plea of guilty, a 1 month’s imprisonment and a disqualification from driving for 1 year.

25.  On the fourth offence of resisting a police officer, fortunately, as I said, in this case, the injuries to the officers were minor,  but I do take in mind they were apprehending the defendant after a long and serious chase.

26.  On that offence, I take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty, and as far as the totality of sentencing is concerned, I consider that the sentences on the first, second and third offences, they should run concurrently one to another.  Those are the sentences of imprisonment.

27.  The fourth offence is consequent upon the commission of the first three offences and I will order that the sentence for the fourth offence will run consecutively to that of the first three offences.

28.  That gives an overall total sentence of imprisonment of 26 months’ imprisonment.

29.  I have ordered disqualifications on the three charges of 1, 2 and 3, of 4 years, 1 year and 1 year.  My understanding, which I will leave open to correction at this stage, is that those sentences of disqualification will run together as they have been pronounced on this occasion.

30.  However, under section 69A, as the defendant has committed a second relevant scheduled offence in relation to these offences, the disqualification is not to run until the expiration of the term of imprisonment.

31.  I will simply say that, at this stage, if anyone has any reason to correct any part of that sentence, I would ask you to do that before I put my signature to the warrant, especially in relation to the disqualifications, because I believe that as these disqualifications are all on the same occasion, they will run to a total period of 4 years of disqualification - that is my understanding - but the defendant, as I have said, is subject to that not taking effect until the expiration of his term of imprisonment and also the necessity for him to re-tested under section 70(2).