HKSAR v. CHENG HIU TUNG

DCCC 770/2023

[2024] HKDC 417

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 770 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Summary of Facts to:

(a)  a charge of dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374 (Charge 1);

(b)  a charge of failing to stop after accident whereby damage was caused to other vehicles,contrary to section 56(1)(b)  and (5)  of the Road Traffic Ordinance, Cap 374 (Charge 2);

(c)  3 charges of failing to stop after accident whereby damage was caused to another vehicle, contrary to section 56(1)(b)  and (5)  of the Road Traffic Ordinance, Cap 374 (Charges 3, 4 and 5); and

(d)  a charge of stopping a motor vehicle on the carriageway of an expressway, contrary to regulation 9(1)  and 26(1)  of the Road Traffic (Expressway)  Regulations, Cap 374Q (Charge 6).

Facts

2.  On 8 March 2023 at about 0843 hours, the defendant, then driving a private vehicle RF9188 (“V5”)  along Tsuen Wan Road (Kowloon bound), stopped V5 on the first-left lane for 10 minutes until about 0853 hours.  At about 0853 hours, he drove V5 very slowly at about 5-10 km/h towards the junction of Tsuen Wan Road and Hing Fong Road.  At the junction, V5 stopped for about 15 seconds, with about 10 vehicles behind, before moving forward very slowly again.  (Charge 6)

3.  At the material times, SGT 5966 (“PW4”)  was driving a police saloon (“V4”)  with 2 passengers including PW6 on board.  At about 0856 hours, PW4 saw V5 moving past his position at Tsuen Wan Road.   V4 tailed V5 and PW6 instructed the defendant to pull over via the loudspeaker but was ignored.  Suddenly, V5 accelerated and cut into the first-left lane as it entered Tsing Kwai Highway.

4.  The defendant drove V5 at an extremely high speed on Tsing Kwai Highway, reaching 136-176 km/h.

5.  At about 0857 hours, V5 entered West Kowloon Highway and went along the left-side hard shoulder.  The defendant ignored PW6’s repeated instructions to pull over.

6.  At about 0858 hours, V5 left the hard shoulder and was moving between other vehicles on the lane.  V5’s near-side collided with the off-side of a light goods vehicle (“V1”), then as V5 continued moving forward, V5’s near-side mirror collided with the off-side mirror of a private vehicle (“V2”). Afterwards, V5 continuously moved forward, cut through double white lines from the second-left lane into the first-left lane, and then once again into the left-side hard shoulder.  (Charge 2)

7.  At about 0901 hours, V5 entered Nga Cheung Road and drove through the entrance of W Hotel.  As it re-entered Nga Cheung Road, it drove past a red traffic light.  It then entered Jordan Road and eventually entered Lin Cheung Road.

8.  At about 0903 hours, V5 drove past a red traffic light on Lin Cheung Road.

9.  At about 0904 hours, V5 entered Eagle’s Nest Tunnel from Tsing Sha Highway.  Inside the tunnel, V5 maintained a high speed and cut across double white lines multiple times.

10.  At about 0907 hours, V5 had exited the tunnel and had entered Che Kung Miu Road.  PW3, another police officer in police saloon (“V3”), heard the siren and saw V4 chasing after V5 from behind.  He then drove V3 into the roundabout at the end of the road.

11.  At about 0908 hours, V5 entered the roundabout on the first-left lane. V3 slowed down and cut into the first-left lane, attempting to intercept V5. However, V5 cut through the second-left lane into the third-left lane to evade V3.  In the process, V5’s near-side front collided into V3’s off-side rear. Afterwards, V5 entered the bus lane of Hung Mui Kuk Road.  V5 then entered Lion Rock Tunnel Road and eventually entered Sha Tin Road.  (Charge 3)

12.  At about 0911 hours, V5 entered Tai Po Road.  At about 0913 hours, V5 entered Tolo Highway, accelerating and cutting through lanes multiple times. At about 0918 hours, V5 entered Fanling Highway.

13.  At about 0927 hours, V5 entered San Tin Highway and was overtaken by V4.  However, V5 entered the left-side hard shoulder and was moving very close to the metal railings.  V5 then suddenly accelerated and moving through the gap between the metal railings and V4.  In the process, V5’s off-side collided with V4’s near-side.  The collision forcefully threw PW6 against V4’s near-side door. (Charge 4)

14.  Seeing V5 speeding away, V3 accelerated to tail V5.  However, V5 suddenly cut into third-left lane and in the process, V5’s off-side collided with V3’s near-side front.  (Charge 5)

15.  After the collision, V5 continued speeding away and entered Yuen Long Highway at about 0930 hours.  At about 0932 hours, V5 entered Hung Tin Road. At about 0934 hours, V5 entered Tin Ying Road.

16.  Eventually, on Tin Ying Road, V5 pulled to a halt near the junction of Tin Wah Road.  Police officers pulled the defendant out of V5 and subdued him. He was arrested for dangerous driving and failing to stop after an accident.

17.  Due to the collision between V4 and V5 above, PW6 was hospitalised and was found to suffer from left shoulder injury.

18.  At the material time, the defendant drove V5 dangerously, committing Charge 1.

Criminal Record

19.  The defendant has 2 previous records involving convictions of 2 charges, none similar.  He also has 7 previous traffic convictions, again none similar.

Mitigation

20.  The defendant is now aged 51.  He is educated up to Form 5, married with a son aged 25.  He moved to live with his elderly parents last year in order to look after them.  The defendant presently is a security guard earning $18,000 a month.  He is also the breadwinner of the family.  It is said that he closed his restaurant in March 2023 as the business of the restaurant deteriorated during COVID times, and he has lost all his savings.  .

21.  Defence counsel handed to this court a medical report by Dr Leung Shuk Yan Joey dated 15 January 2024.  It was said in this report that in around 2006, the defendant started to suffer from untreated mood disorder.  He further suffered from a manic relapse since June 2022 with labile emotions, elevated self-esteem, expansive ideas temper outbursts, reduced sleep, raised energy level, talkativeness, reckless decisions, which were triggered by relationship problems at work and further complicated by lawsuits.  It was said that these coincided with the series of traffic tickets that the defendant received in the year 2021 to 2023.

22.  It was said that only until March 2023 the defendant’s mental condition improved when he was treated in the private sector.  It was said that the defendant now realises the troubling nature of his acts and the consequences and is deeply remorseful.  This, compared to his state of mind on 26 July 2022 when it was said that he has poor insight and did not think himself having any mental problem, is progress.

23.  Defence counsel also tendered to court mitigation letters from the defendant, his parents and his friends.  It is said that the defendant now realises the effect of his acts upon his elderly parents.  He vows not to drive for the rest of his life and to continue to receive medical treatment.

24.  His parents said that the defendant is a filial son and all these problems arose because of his mental illness.  They asked this court for leniency.  The defendant’s friends at Shek Yam Christian Assembly said that whilst the defendant himself is not a Christian, he has at times attended church and is accompanied by a network of support, which is committed to support his recovery and his attempts to steer away from legal trouble.

25.  Defence counsel said that the defendant has no previous similar convictions, save for one in careless driving in 2013, and that in his more than 20 years driving experience, he do have a good record. 

26.  For Charge 1, defence counsel referred this court to cases of Secretary for Justice v Ko Wai Kit, Paul [2001] 3 HKLRD 751, HKSAR v Tang Chen Ming [2003] 1 HKC 515, HKSAR v Chung Ho Yin, CACC 75/2020, HKSAR v Ng Chi Wai, DCCC 156/2010 and Secretary for Justice v Wade, Ian Francis, CAAR 1/2015.

27.  Defence counsel said although the dangerous driving in the present case was clearly bad, this was not the worst of its kind.  In the present case, there is absence of death, no consumption of dangerous drugs/ alcohol, no serious injuries to pedestrian or police officers, nor substantial damage to property or private and police vehicles.

28.  He submitted that there is no tariff for Charges 2 to 5 and he relied on the case of 香港特別行政區 訴 丘約瑟, DCCC 836/2018, where the sentencing judge adopted a sentencing starting point of 3 weeks’ imprisonment for failing to stop after accident.

29.  For Charge 6, defence counsel asked this court to consider a fine as appropriate sentencing option. 

30.  It was said that although there was personal injury to PW6 and property damage to 4 vehicles, they were not serious.  He also submitted that the defendant has suffered from mental health issues, and he has decided not to drive again therefore the chance of reoffending is nil.

31.  Defence counsel urged this court to consider all extenuating factors that could lead to these offences and to be lenient on the defendant.  He also said that because the defendant has pleaded guilty, he is entitled to sentencing discount.  He also urged this court to consider the totality principle as the defendant committed all these offences on the same day and they were part and parcel of the same transaction.

Discussion

32.  Before sentencing, this court has considered all submissions in mitigation, cited authorities, mitigation letters and psychiatric reports.

Charge 1

33.  On conviction upon indictment, the maximum sentence for this offence is a fine of $25,000 and 3 years’ imprisonment.

34.  In the case of R v Cooksley and Others [2003] 3 All ER 40, the English Court of Appeal identified a non-exhaustive list of factors relevant to the sentence for dangerous driving causing death cases.  These factors, in the view of this court, is also relevant for the purpose of sentencing in cases involving just dangerous driving.  The observations in Cooksley adopted by the Court of Appeal in Hong Kong in Secretary for Justice v Poon Wing Kay and Another [2007] 1 HKLRD 660.

35.  As agreed by the defendant in the Summary of Facts, during this escape which lasted not less than 51 minutes, covering a large area in the New Territories, there were numerous occasions when the defendant drove across double white lines, including in the tunnel, occasions when he failed to stop at red traffic light, occasions when he drove on road shoulders, and going between cars when the room in between was obviously insufficient.  There were also instances of excessive speeding.  When the road limit at the place was only 80 km/h, he drove at 176 km/h.

36.  During the dangerous driving spree of the defendant, the defendant’s vehicle collided with a light goods vehicle, a private car and 2 police vehicles, causing damage to these vehicles.  One passenger, being a police officer in one of the police vehicle involved in the collision, suffered left shoulder injuries as a result and was treated in hospital, receiving 4 days sick leave.

37.  During this 51 minutes or so, the dangerous driving of the defendant posed prolonged serious risk to all other road users in the area at the time. Luckily for all, actual injury to person and damage to properties in this case was relatively not serious and not potentially as what they could be.

38.  Considering the circumstances of the case, the relevant authorities in the area and the factors for consideration in the Cooksley case, this court considers that the only appropriate sentencing option is one of immediate custodial sentence.  The appropriate sentencing starting point for Charge 1 is 24 months’ imprisonment.

39.  The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount, bringing the sentence for Charge 1 to 16 months’ imprisonment.

40.  According to the medical report from Dr Leung, the defendant was reported to be suffering from untreated mood disorder since 2016, with manic episodes in 2016 and 2018, followed by low mood in 2019 to 2022.  It was said that his mental condition improved after receiving private psychiatric treatment in March 2023.  Dr Leung said it is possible that the defendant’s judgment was impaired under the influence of his mental illness at the time when he committed the offences.

41.  It was noted by this court that the defendant did not learn his lesson after the incident on 8 March 2023 as he committed the offence of failing to give information on demand on 3 May 2023 and was fined and disqualified as a result.

42.  For the purpose of sentencing and for the benefit of the defendant, this court is willing to afford the defendant further sentencing discount of 3 months by reason of the possibility that he might be affected by the mental disorder to some extent at the time of offence as said by Dr Leung.  The defendant is therefore sentenced to 13 months’ imprisonment for Charge 1.

Charges 2 to 5

43.  A person convicted of this charge is liable to 12 months’ imprisonment and a fine of $10,000.

44.  For Charge 2, the defendant’s car collided with two other vehicles. Damage to these cars are not serious.  This court considers appropriate sentencing starting point is 12 weeks’ imprisonment. 

45.  The defendant has pleaded guilty and is entitled to full one-third sentencing discount.  He is therefore sentenced to 8 weeks’ imprisonment. Sentence is further discounted by 1 week to 7 weeks’ imprisonment by reason of the possibility that he might be under the influence of his mental problem at the time.

46.  For each of Charges 3, 4 and 5, the defendant collided with a police vehicle.  Damage to these vehicles were not serious and a police officer suffered left shoulder injury as a result in Charge 4.  The police vehicle involved in Charge 3 and 5 was the same vehicle. 

47.  The sentencing starting point for Charge 3 and 5 is 9 weeks’ imprisonment.  The defendant is entitled to full one-third sentencing discount by reason of his guilty plea.  Similarly, the same is discounted by 1 week to 5 weeks’ imprisonment by reason of his mental problem.

48.  As for Charge 4, the sentencing starting point is 12 weeks’ imprisonment. The defendant is entitled to full one-third sentencing discount by reason of his guilty plea.  His sentencing is further discounted by 1 week by reason of his mental problem to 7 weeks’ imprisonment.

Charge 6

49.  On conviction of this charge, a person is liable to 3 months’ imprisonment and a fine of $5,000. 

50.  This is the first conviction for the defendant.  The defendant is fined $2,000 for this charge.

Totality Principle

51.  These offences were all committed by the defendant in the same incident, lasting for over 51 minutes.  The commission of Charges 2 to 5 were considered by this court when sentencing the defendant on Charge 1.  The defendant should not be penalised twice for commission of the same acts.

52.  Having regard to the overall culpability of the defendant in this case, the court considers that a total sentence of 13 months’ imprisonment after plea is just and proportionate.  Accordingly, sentences for Charges 1 to 5 shall run totally concurrent to each other.

53.  The defendant is therefore sentenced to a total of 13 months’ imprisonment and a fine of $2,000 in this case.

Disqualification

54.  On the first conviction of Charge 1, the court shall order the defendant be disqualified for a period of not less than 6 months unless the court for special reasons orders otherwise. 

55.  There is no special reason in this case and considering the circumstances of the case, the court now orders the defendant be disqualified from holding or obtaining a driving license for all classes of vehicles for 2 years.

56.  The defendant is further ordered to attend and complete a driving improvement course under section 72A(1A)  of the Road Traffic Ordinance at his own costs within the last 3 months of the disqualification period.