HKSAR v. LAM SHUN CHOI

DCCC 612/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 612 OF 2012

____________

____________

REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Chapter 374 (charge 1); one charge of using a document with intent to deceive, contrary to section 111(1)(a) of the Road Traffic Ordinance (charge 2); one charge of driving without a valid licence, contrary to section 42 of the Road Traffic Ordinance (charge 3); one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Chapter 272 (charge 4); one charge of using a motor vehicle on a road without displaying a valid vehicle licence, contrary to Regulations 25(1) and 60(3) of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Chapter 374E (charge 5); one charge of possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance, Chapter 134 (charge 6); one charge of attempted to drive without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance and section 159G of the Crimes Ordinance, Chapter 200 (charge 7); and one charge of attempted to drive without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance and section 159G of the Crimes Ordinance (charge 8).

23rd November 2011

2.  Briefly around 2035 hours on the 23rd November 2011 SPC 48735, whilst on motorbike patrol on Cameron Road, Tsim Sha Tsui, saw a white Honda, with registration mark EC 607, veering left and right.

3.  On reaching outside the Hong Kong Polytechnic University         SPC 48735 drove up alongside the Honda and asked the driver to stop nearby.  The defendant, who was the driver of the Honda, agreed and turned into Hong Chong Road.  SPC 48735 followed behind the Honda with the blue warning light switched on.  The defendant however did not stop therefore SPC 48735, through his loudspeaker, twice repeated his instructions to the Honda to stop. 

4.  The defendant then proceeded along Chatham Road North and       Ma Tau Wai Road running through three sets of red lights, at a speed of about 80 kmh, in what I am told was a 50kmh speed limit, except for the section between Hong Chong Road and Chatham Road North, where the speed limit was 70kmh.  When reaching the junction with Tin Kwong Road, the defendant unable to drive forward because of cars waiting at the red light, drove on to the pedestrian pavement near No. 442-448 Ma Tau Wai Road.  The defendant travelled around 10 meters on the pavement during the course of which he hit a pedestrian. 

5.  The defendant then drove back onto Ma Tau Wai Road when he collided with the rear of a taxi. The defendant alighted from the Honda and was eventually intercepted at Tin Kwong Road near Hop Yat Road. 

6.  Under caution the defendant admitted he did not have a driving licence.  The defendant has in fact never held a driving licence and was therefore not covered by insurance.  A check of the vehicle revealed that the registration mark should in fact be PS 4569, the licence for which had expired on the 17th August 2011.

7.  Under caution the defendant explained that the car belonged to his friend, who had asked him to sell the car whilst he was in jail.  In a subsequent interview the defendant explained when SPC 48735 stopped him for enquiries he became frightened and tried to flee.

8.  On a search of the Honda the police found in the drivers arm rest a plastic bag containing 0.23 grammes of cocaine.  Under caution the defendant admitted the cocaine was for his own consumption. 

7th March 2012

9.  On the 7th March this year, the defendant having been given bail pending investigation of the incident on the 23rd November last year, was seen by the police to walk up to the same Honda car, this time displaying the correct registration mark PS 4569 but displaying a different vehicle licence.  When the police officers revealed their identity the defendant immediately got into the Honda and started the ignition to drive away.  The police approached and arrested the defendant.

10.  In passing sentence I have taken into account everything said on behalf of the defendant by Mr Chan, including that his wife after giving birth to twin sons in July last year has suffered from post-natal depression and that the twins are very often sick and will therefore suffer hardship whilst the defendant is imprisoned.  I note from the antecedents the defendant also has a young daughter from another relationship.

Dangerous driving (charge 1)

11.  In R v Boswell [1984] 3 All ER 35 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.  These factors were revised in R v Cooksley [2003] RTR 32.  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 [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.

12.  This principle was repeated in Secretary for Justice v Lau Sin-ting CAAR 3/2010 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 (see paragraph 36 of the judgment).

Aggravating features

13.  The aggravating features in this case are the driving was a prolonged, persistent and deliberate course of verybad driving, involving driving through three red lights, at a speed which at times was well in excess of the speed limit, in an attempt to escape from the police; mounting a pavement where a pedestrian was hit and injured; and colliding with a taxi, the driver of which was also injured.  Also to be taken into account is the defendant having never held a driving licence was not covered by insurance and in an attempt to avoid detection the defendant switched the number plates. 

14.  Whilst cocaine was found in the car there is no evidence the defendant had consumed cocaine or any drug prior to or during driving.   I therefore do not take this fact into account in sentence on the charge of dangerous driving. 

15.  In Secretary for Justice v Ko Wai-kit [2001] 3 HKLRD 751 the driver in that case having been seen making an unlawful ‘U-turn’, embarked on a crazed journey, in an attempt to evade apprehension, committing one traffic offence after another, jumping red lights, colliding with motor vehicles and motor cycles, injuring a police officer and two civilians, failing to obey police commands to stop and violently resisting arrest when finally intercepted.  

16.  The appellant pleaded guilty to dangerous driving and was sentenced to 12 months imprisonment.  The Court of Appeal, describing the case as a shocking case of dangerous driving, said the maximum term of 3 years imprisonment ought to have been taken and increased the sentence for dangerous driving to 2 years imprisonment. The court also increased the period of disqualification from 2 years to 5 years.

17.  Ko Wai-kit was referred to in the later case of HKSAR v Tang Chen-ming [2003] 1 HKC 515, a case cited by Mr Chan.  In that case the defendant drove into the back of a taxi.  In an attempt to leave the scene the defendant reversed his car at high speed, mounted the pavement, then re-entered the road until coming to a halt, in the course of which four people were injured, one seriously, and no less than four taxis, a police van and a shop were damaged.  The Court of Appeal in upholding a sentence of 2½ years imprisonment said that, if anything, Ko Wai-kit was an even more serious example of dangerous driving.  Mr Chen submits the present case is not as serious as in Tang Chen-ming.

18.  There are similarities between both Ko Wai-kit and Tang Chen-ming with the present case, however, I accept the facts in Ko Wai-kit are more serious.  The facts in Tang Chen-ming are also arguably more serious, in particular four people were injured, one seriously.  Fortunately, as confirmed by the letter from the Department of Justice, the injuries to the pedestrian and the taxi driver appear not to be serious and a full recovery has been made by both of them.  However the defendant in that case was an experienced driver whereas the defendant in the present case had no driving experience, having never held a driving licence. 

19.  I am satisfied for dangerous driving the proper starting point after trial is one of2 years and 3 months imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 6 months imprisonment.

20.  I would add that in considering sentence I have taken into account that the defendant has offered to compensate both the pedestrian and the taxi driver for the injuries and loss sustained by them.  I do not think this court can properly assess the damages to be awarded, in particular the court not having full medical reports or details of any loss of earnings there may be.  Further realistically the defendant being sentenced to a substantial term of imprisonment is not, in any event, for a long time going to be in a position to pay compensation.

Using a document with intent to deceive/driving without a valid driving licence/using a vehicle without third party insurance and without displaying a valid vehicle licence (charges 2-5).

21.  The defendant says he switched the number plates to avoid his friend and his girlfriend, who was the registered owner, getting into trouble, the licence of the vehicle having expired. Using different number plates to avoid detection is a serious breach, aggravated by the fact the defendant had no driving licence and therefore no insurance.

22.  I am satisfied the proper starting points after trial are 12 months imprisonment for using a document with intent to deceive; 1½ months imprisonment for driving without a valid driving licence; 6 months for using a vehicle without third party insuranceand 1½ months without displaying a valid vehicle licence.

23.  Giving full credit for the pleas of guilty the defendant is convicted and sentenced to 8 months, 1 month, 4 months and 1 month respectively.  Arguably the offences are separate from the dangerous driving as these offences are committed prior to the dangerous driving taking place.  However considering the fact I have taken these matters into account in assessing the culpability of the defendant on the dangerous driving charge and considering the totality of the sentence to be imposed on all charges, I order the sentence on these four charges to be served concurrent to each other and concurrent to charge 1.

Possession of cocaine (charge 6)

24.  Mr Chan is instructed by the defendant to ask for a fine.  This request is wholly unrealistic.  In HKSAR v MOK Cho-tik [2001] 1 HKC 261 at 267 the Court of Appeal said:

“We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

25.  But for the dangerous driving charge the possession of drugs charge would have been dealt with in the magistracy.  Taking into account the small quantity of cocaine I am satisfied a starting point of 9 months imprisonment is appropriate.  The defendant being a persistent offender having six prior convictions relating to drugs, four for possession, the last in December 2009 when he was sentenced to 4 months imprisonment,        I increase the starting point to one of 12 months imprisonment.

26.  Giving the defendant full credit for his plea of guilty I reduce the sentence to 8 months imprisonment.  This offence is entirely separate and distinct from the driving offences.  I am satisfied a wholly consecutive sentence is appropriate. The defendant is convicted and sentenced to        8 months imprisonment consecutive to charges 1-5. 

Attempting to drive without a valid driving licence and without third party insurance (charges 7 & 8)

27.  These two offences were committed whilst the defendant was on police bail for the offences committed on the 23rd November 2011.  The commission of offences on bail is an aggravating feature of sentence.  Further the commission of these offences show the defendant to have a total disregard of the law by attempting to drive again when he had no licence and no insurance. 

28.  I am satisfied the proper starting point after trial for attempting to drive without a valid driving licence is 3 months imprisonment; and for attempting to use a vehicle without third party insurance9 months imprisonment.

29.  Giving full credit for the pleas of guilty the defendant is convicted and sentenced to 2 months and 6 months respectively. The two offences arising out of the same facts I order the sentences to be served concurrently.  They are however entirely separate and distinct from the six offences committed on the 23rd November 2011.  Again I am satisfied a wholly consecutive sentence is appropriate and order the sentence to be served consecutively to the sentence on charges 1-6.

30.  The total sentence to be served by the defendant is therefore 2 years and 8 months imprisonment, which I am satisfied properly reflects the defendant’s criminal culpability on the eight charges.

Disqualification

31.  On charge 1, dangerous driving, the defendant is also disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.  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 do so.  The defendant having never obtained a driving licence there is no driving to improve.  In order to drive in the future the defendant will need to first pass a driving test.  In these circumstances I make no order to attend and complete a driving improvement course.

32.  On the two insurance charges the defendant is also disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months on charge 4 and 18 months on charge 8.  The disqualification periods all run from today, the date of conviction.  The defendant is therefore disqualified from holding or obtaining a driving licence for a period of 3 years.

SCHEDULE

IMPRISONMENT

CHARGE 1 – 1 YEAR AND 6 MONTHS IMPRISONMENT;

CHARGE 2 – 8 MONTHS IMPRISONMENT;

CHARGE 3 – 1 MONTH IMPRISONMENT;

CHARGE 4 – 4 MONTHS IMPRISONMENT;

CHARGE 5 – 1 MONTH IMPRISONMENT;

SENTENCE ON CHARGES 2-5 SERVED CONCURRENTLY AND CONCURRENT TO CHARGE 1.

CHARGE 6 – 8 MONTHS IMPRISONMENT CONSECUTIVE TO CHARGES 1- 5;

CHARGE 7 – 2 MONTHS IMPRISONMENT;

CHARGE 8 – 6 MONTHS IMPRISONMENT;

SENTENCE ON CHARGES 7 & 8 SERVED CONCURRENTLY BUT CONSECUTIVE TO CHARGES 1-6.

TOTAL SENTENCE 2 YEARS AND 8 MONTHS.

DISQUALIFICATION

CHARGE 1 - DISQUALIFIED FROM HOLDING OR OBTAINING A DRIVING LICENCE FOR

ALL CLASSES OF VEHICLES FOR A PERIOD OF 3 YEARS;

CHARGE 4 - DISQUALIFIED FROM HOLDING OR OBTAINING A DRIVING LICENCE FOR

ALL CLASSES OF VEHICLES FOR A PERIOD OF 12 MONTHS;

CHARGE 8 - DISQUALIFIED FROM HOLDING OR OBTAINING A DRIVING LICENCE FOR

ALL CLASSES OF VEHICLES FOR A PERIOD OF 18 MONTHS;

ALL DISQUALIFICATION TO RUN FROM TODAY, THE DATE OF CONVICTION

TOTAL DISQUALIFICATION IS 3 YEARS.