HKSAR v. CHUI KAI FUNG

DCCC 406/2022

[2023] HKDC 794

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 406 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges and full details of the offences are set out in the facts admitted by the defendant:-

1^st Charge - Dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374;

2^nd Charge - Using a vehicle not in good and serviceable condition, contrary to regulations 5(1)(b)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A;

3^rd Charge - Using a vehicle not in good and serviceable condition, contrary to regulations 5(1)(b)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A;

4^th Charge - Using a vehicle with body work or fittings other than soundly and properly constructed of suitable materials, contrary to regulations 5(1)(a)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A; and

5^th Charge - Using a motor vehicle with excessive exhaust emission, contrary to regulations 31A(2)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A.

The gist of the facts are as follows

2.  At 1 am on 2 January 2021, police received reports that many private cars were travelling at high speed in the Cross-Harbour Tunnel towards Hong Kong Island.

3.  Around 10 minutes later, police officers noticed 15 private cars driving at 60-70 km/h with loud engine noises, moving northwards along Ocean Park Road and then eastwards along Wong Chuk Hang Road in Wong Chuk Hang.  Police officers intercepted these cars from the front and from the back.  These 15 cars were stopped on the 1^st and 2^nd right lanes of Wong Chuk Hang Road, near the junction with Nam Fung Road.

4.  Half a minute later, the front car driven by the defendant (registration no VZ7017)  (“V1”)  suddenly moved from the second right lane and entered into the 3^rd right lane of Wong Chuk Hang Road at 50 km/h.  It drove head-on towards a police officer, who was in the 3^rd right lane.  Officer signalled V1 to stop but was ignored by V1 causing officer to dash to his right to avoid collision.

5.  Police officers also pulled out their guns and verbally warned V1 to stop.  However, V1 did not stop and drove by PC7893’s left side.  The nearest distance between PC7893 and V1 was around 1 meter.  V1 then drove through a red vehicular traffic light, entering Nam Fung Road and escaping uphill at 80 km/h in a 50 km/h speed zone.  An alert was issued by police over the beat radio.

6.  At 1:16 am that day, police officers saw V1 driving downhill near 1 Stubbs Road, Wan Chai, around 5 km from where V1 had escaped.  V1 turned off its headlights as it approached the police.  PC16351 intercepted V1.  V1 was driven by defendant and its registered owner was seated on V1’s front passenger seat.

7.  Dashcam footage of another vehicle (“V2”)  revealed V1’s journey prior to the police interception.  Between 0:17 am and 0:29 am on 2 January 2021, V1 and V2 drove downhill from Tai Mo Shan to Elements, Kowloon (covered 17.354 km in 12 minutes).

8.  While driving downhill, their speeds ranged at around 86.48-106.8 km/h (when the speed limit was 50 km/h)  and both of them crossed the double continuous line multiple times by driving in a zigzag pattern (V1 crossed the double continuous lines 4 times).

9.  After V1-2 left Tai Mo Shan, V1 went ahead and V2 lost trace of V1.  V2 caught up with V1 about a minute before they both arrived in Elements carpark.

10.  Between 0:52 am and 1:07 am that day, V1-2 and the other vehicles drove from Elements to Ocean Park Road.  Between 1:17 am and 1:18 am that day, V1-2 and the other vehicles drove from Ocean Park Road to where they were intercepted by the police.

11.  The defendant had driven V1 dangerously by speeding at at least 36 km/h above the speed limit at times downhill from Tai Mo Shan zigzagging and crossing double continuous white lines.

12.  Also, during the defendant’s escape from the police, the defendant had driven V1 forward at high speed in the direction of PC7893, ignoring police officers’ verbal and gun warning to stop.  The collision was avoided by PC7893 dashing aside.  Immediately afterwards, the defendant drove through a red light.

13.  Motor vehicle examiner examined V1 and found the following defects:-

(a)  Oil leakage and dripping to the exhaust system (Charge 2);

(b)  Both side front lower control arm ball joints had no locking devices, namely that the split pins were missing (Charge 3);

(c)  Steering wheel was altered without department’s approval (Charge 4); and

(d)  Excessive exhaust emission, which did not comply with the regulation’s requirement (Charge 5).

14.  The defendant was driving dangerously as the manner of his driving fell far below what would be expected of a competent and careful driver, and a careful driver would know that driving in that manner would be dangerous bearing in mind all the circumstances existing at the time.

Criminal record and background of the defendant

15.  Mr Davies informed the court that the defendant is now aged 34 and he is married with two young daughters.  He is employed as a delivery worker earning around HK$30,000 per month and he is the sole breadwinner for the family.

16.  The defendant has held a driving license since 2007 and had 2 times been disqualified.  He had attended driving improvement course on five occasions, namely 4/11/2013, 14/4/2017, 27/12/2017, 14/12/2019, and 23/08/2021.

17.  He had 41 fixed penalty records, 3 of them related to crossing continuous double white line, 1 of them related to speeding more than 45 km/h, 2 of them more than 30 km/h, 4 of them more than 15 km/h, 14 of them by 15 km/h or less and one careless driving conviction in 2015.

18.  The defendant also had 3 criminal records with no similar offence.

Mitigation

19.  Counsel for the defendant, Mr Davies submitted that the defendant is remorseful and had cooperated after arrest.  Mr Davies also attached letters from the defendant’s wife, mother, neighbour and those who work with the defendant, all of them speak highly of him.

20.  It is submitted that though the guilty plea itself has not been entered at the earliest opportunity, it has been submitted to the court a few days before the trial.  Mr Davies submitted that the defendant is entitled to one-fourth discount.

21.  For the 1^st charge, Mr Davies referred me to the following cases, namely:-

- R v Cooksley & Ors [2003] RTR 32

- Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660

- HKSAR v Sham Pui Chak [2016] 1 HKLRD 214

22.  Mr Davies stated that Prosecution’s basis for Charge 1 is two-fold, namely:-

(1)  The defendant had driven a private car dangerously on 2 January 2021 between 12:17 am to 12:29 am from Tai Mo Shan to Elements Kowloon. While driving downhill, the defendant’s speed was calculated to be at least 86.48 km/h where the speed limit was 50 km/hr. The defendant crossed double continuous lines 4 times while driving in a zigzag pattern.

(2)  The defendant was intercepted by police on Wong Chuk Hang Road at around 1:10 am on the same day. The defendant had stopped on the right 2^nd lane. The defendant suddenly drove into the 3^rd right lane at 50 km/h, head-on towards PC7893. PC7893 dashed to his right to avoid colliding with the defendant. SGT 52905 and PC7893 pulled out their guns and verbally warned the defendant to stop. The defendant drove by PC7893’s left side and the nearest distance between him and the vehicle was 1 meter. The defendant then drove through a red traffic light and continued on Nam Fung Road (uphill)  at 80 km/h.

23.  Mr Davies submitted that in R v Cooksley & Ors [2003] RTR 32 at para 15, the court laid down a list of aggravating factors that can be considered to determine the degree of culpability, and these general principles and guidelines were adopted in Hong Kong.  Ma CJHC (as he then was), referred to R v Cooksley in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660:-

“While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: at p.47B (para.14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to consider the overall picture in order to arrive at an appropriate sentence...”

24.  Mr Davies accepted that the defendant will not be given credit for a clear record.  He further submitted that all of the previous convictions of the defendant were not similar, and two were committed 15 years ago or more.  There are no previous convictions for the offence of dangerous driving.

25.  Mr Davies pointed out that the defendant first obtained his driving licence in 2007.  While admittedly he has had numerous fixed penalties for speeding, mostly by 15 km/h or less, he was only convicted of careless driving once, back in September 2015.  

26.  From the car-camera footage tendered by the Prosecution, Mr Davies was of the view that the defendant’s driving manner was not the most serious type of dangerous driving, and he asked the court to consider the following factors in relation to the defendant’s conduct:-

(1)  While there were instances where his speed was calculated to be at least 86.4 km/h while driving downhill, there is no evidence of prolonged speeding.

(2)  The four instances of the defendant’s car crossing double white lines occurred at bends along the road, which does not appear to be deliberate breaches of road markings.

(3)  The defendant never drove against the flow of traffic.

(4)  There was no overtaking of other vehicles under dangerous circumstances and there is no suggestion of road racing.

(5)  There was no evidence that the defendant’s driving had caused other drivers to brake and/or change course to avoid a collision.

(6)  No pedestrians were put at risk.

(7)  At no point in time did the defendant lose control of the car.

(8)  The defendant was not under the influence of drugs or alcohol.

(9)  There was no damage to property or person, in particular, no injury was caused to PC7893.

27.  Mr Davies submitted that after being stopped by the police on Wong Chuk Hang Road, the defendant panicked and made the foolish decision in a split second to flee.  It is submitted that it was not a premeditated attempt to flout the law, as no further attempt was made by the defendant to evade the police when he was stopped on Stubbs Road shortly thereafter.

28.  It is submitted that although PC7893 did need to dash to his right to avoid collision, the closest the defendant’s car came to PC7893 was one meter away.  Mr Davies opined that it is unlikely that an accident would have occurred even if PC7893 had not moved away.

29.  Mr Davies pointed out that there is no tariff for Dangerous Driving because each case must be decided on the particular facts of that case, and that this case falls into the least serious category and the lack of the usual aggravating features aside from speeding.

30.  By way of comparison, in HKSAR v Sham Pui Chak [2016] 1 HKLRD 214, the Court of Appeal indicated an overall starting point of 15 months for a defendant who had been convicted after trial of two counts of dangerous driving and one count of careless driving, which was further reduced to 12 months because of his good record.  The facts in that case are far more serious.  The defendant was involved in a prolonged chase by the police at high speed which ended in the defendant colliding with a police motorcycle causing injures to two police officers.  The starting point in the present case should therefore be considerably lower.

31.  Mr Davies asked the court to consider adopting a lower starting point together with the imposition of an appropriate disqualification period and the remaining charges can all be dealt with by way of fines.

Sentencing considerations

32.  In sentencing the defendant, I have carefully considered the facts admitted by the defendant, the background report, all that has been put forward in mitigation by Mr Davies on behalf of the defendant, as well as the contents of the letter seeking leniency and cases that Mr Davies had referred me to.

33.  Before sentence, I had also watched the relevant footages of the dashcam of V2.

Guilty plea discount

34.  The defendant has changed his plea after this case had been listed for trial, therefore he will not be eligible for a one-third discount according to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

35.  However, I will exercise my discretion and find a 25% discount applicable to the defendant’s plea as sufficient notice was given to the prosecution prior to the first day of trial.

36.  For the 1^st charge, there is no tariff.  However in R v Cooksley and Others [2004] 1 Cr App R (S)  1, a case of dangerous driving causing death, the English Court of Appeal identified a non-exhaustive list of factors relevant to sentence (at p 3 H7)  as follows:-

“Highly culpable standard of driving at time of offence

(a)  the consumption of drugs (including legal medication known to cause drowsiness)  or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’

(b)  greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’

(c)  disregard of warnings from passengers

(d)  a prolonged, persistent and deliberate course of very bad driving

(e)  aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)

(f)  driving while the driver’s attention is avoidably distracted, eg by reading or by use of a mobile phone (especially if hand-held)

(g)  driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills

(h)  driving when knowingly deprived of adequate sleep or rest

(i)  driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns

Driving habitually below acceptable standard

(j)  other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle

(k)  previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving

(My emphasis underlined d and k)”

37.  The court stated as a reminder as follows:-

“It was important to appreciate that the significance of the factors could differ. There could be a case with three or more aggravating factors, which were not as serious as a case providing a bad example of one factor.”

38.  The above observations are adopted by the Court of Appeal in Hong Kong in Secretary for Justice v Poon Wing Kay & Anor [2007] 1 HKC 289.  

39.  In addition to the above, I also regard failing to comply with the police instruction to stop as other aggravating factors which are present from the facts before me.  Nevertheless, an adjustment to the sentence will be made as the guideline set out in the case of Cooksley is for dangerous driving causing death.

40.  The statutory maximum sentence for dangerous driving is 3 years.  The only saving grace in the 1^st charge is the absence of any death, major injury or substantial damage to property.

41.  This case was committed around midnight and in the early morning of Saturday when the defendant was driving downhill and also at the time when the defendant failed to comply with the police instruction.

42.  The prosecution agreed that there is insufficient evidence to show that this is a case involving car racing.  I agree that my focus and approach should be confined to the driving manner of the defendant only.

43.  My view is that the defendant’s way of driving was a very bad and irresponsible type of dangerous driving, and his persistently irresponsible driving manner is of sufficient gravity for me to adopt a starting point of 12 months’ imprisonment in relation to the 1^st charge.

44.  I do not find this is a case appropriate for suspended sentence or community service order as suggested by the defendant.

45.  The only mitigating factor is his plea of guilty.  After giving him 25% discount, the sentence is reduced to 9 months’ imprisonment for the 1^st charge.

46.  As to the 2^nd charge to 5^th charge, the maximum penalty for a regulation 121(1)  offence is on conviction to a fine at level 3 and to imprisonment for 6 months.

47.  I shall order a fine of HK$600 for each charge and the total fine for the 2^nd charge to 5^th charge will be HK$2,400 to be deducted from the bail money of the defendant with his consent.

Disqualification Order

48.  For the 1^st charge, there is mandatory disqualification of no less than 6 months in the case of a first conviction unless the court for special reasons orders that the person to be disqualified for a shorter period or that the person not be disqualified.  The Ordinance also provides that the court shall also order the person attend and complete a driving improvement course.

49.  I can see no special reasons not to disqualify the defendant.  I now order him to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 6 months for the 1^st charge.

50.  I also make an order under section 72A(1A)  of the Road Traffic Ordinance, Cap 374, there being no special reasons against the making of an order, that he must at his own expense attend and complete a driving improvement course within the last three months of the expiration of the period of his disqualification.

51.  The defendant is also 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 that the disqualification period may already have ended.