HKSAR v. CHEUNG HING WAH AND OTHERS

DCCC 120/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 120 OF 2010

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Reasons for Sentence

1.  I convicted all the defendants after trial on charges of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374.

2.   In addition, I convicted D5 of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212.

3.  The charges of dangerous driving relate to incidents that occurred in the early morning of Monday, 13^th July 2009 on a section of the west-bound carriageway of the Kwun Tong Bypass (‘the Bypass’) between lamppost AB3524 and lamppost AB3525.

4.  The section of the bypass where the accidents occurred has three traffic lanes. A slip road from Wai Fat Road joins the 1^st lane of the west-bound carriageway of the bypass just before the site where the accidents occurred.

5.  The charge of assaulting a police officer in the due execution of his duty arises from an incident which occurred near to the junction of Wai Fat Road (ground level) underneath the Bypass.   D5 was one of the drivers of a vehicle which drove dangerously on the Kwun Tong Bypass. He was later stopped by a police officer on Wai Fat Road shortly after the accident. He struggled with the arresting officer and assaulted him by stiking him with his elbow in a backward movement to effect his escape from the officer. The officer said the blow was painful but fortunately he  suffered no injury

6.  I was satisfied that the defendants were driving dangerously whilst being engaged in illegal road racing.  A group of cars had been observed by police officers illegally road racing along Po Lam Road in the Tseung Kwan O and Sau Mau Ping area.  An officer saw the group of cars traveling in excess of 100 kmph in a 50 kmph area on Po Lam Road. At Sau Mau Ping the group of cars was still traveling at high speeds and very close together. They were seen to drive through two sets of traffic lights. This group of  cars then  travelled  along the Kwun Tong Bypass at a speed far above the prescribed speed limit of 70km per hour.  Police officers on duty on the bypass had been alerted to the road racing activities and stopped civilian vehicles on the bypass. The racing vehicles drove  into the area where the civilian vehicles were stopped and that there were a series of collisions. Four civilian cars and an LGV were damaged.

7.  A sketch plan, P106,  was produced which showed where on the bypass the civilian vehicles stopped before the accident.

8.  The following civilian vehicles were involved:-

· Taxi NU643, in the 1^st lane (‘V7’), driven by Mr POON Siu-foon (‘PW12’)

· Taxi KB1519, 2^nd vehicle in the 3^rd lane (‘V8’)

· Silver Nissan Sunny MJ9304, 3^rd vehicle in the 3^rd lane (‘V9’), driven by Mr POON Chun-fai (‘PW14’)

· Taxi CD1628, 1^st vehicle in the 3^rd lane (‘V10’), driven by Mr KWOK Ming-sing (‘PW15’)

· Blue lights goods vehicle GX5236, 2^nd lane (‘V11’), driven by Mr SIN Kwok-chuen (‘PW17’)

9.  A sketch plan, Ex P107, was produced to show where those vehicles and the cars driven by D1-D3 finished up after the accident.  A number of the racing cars managed to drive past the civilian vehicles via a passage created after a collision  between  D3’s vehicle and a taxi (V7) which had been parked in the slow lane of the bypass. A number of   racing cars reversed at the scene, made u-turns and escaped against the flow of traffic down the nearby Wai Fat Road slip road.

10.  A white Honda motorcar bearing the registration NG449 (‘V1’), driven by D1 collided into the left side of V11 and the right side of V10. Those vehicles had been stopped next to each other in the second and third lanes respectively. V1 was embedded into the rear of V11.

11.  A black Honda motor car, bearing the registration MU6661 (‘V3’), driven by D3, crashed into the rear of V7 in the 1^st lane. V7 was pushed forward and onto the Wai Fat slip road with the left front part mounting the concrete barrier on the left side of the road.

12.  A  white Honda bearing the registration DD1909 (‘V2’), driven by D2, was at the scene of the accident after the accident. The front of  the vehicle had been badly damaged. This vehicle had been seen with the group of racing cars proceeding along Po Lam Road North at speeds in excess of 100 kmph. The speed limit on that road is 50 kmph.

13.  D1, D2 and D3 were arrested at the scene by PW5 SPC 48241 (‘PW5’), PW6 SPC 50298 (‘PW6’) and PW7 SPC 22254 (‘PW7’) respectively for furious driving. Under caution, D1,D2 and D3 remained silent.

14.  A yellow/black Honda bearing the registration EF421 (‘V4’),  driven by D4, made a U-turn on the bypass and travelled down the Wai Fat Road slip road against the flow of traffic in a badly damaged condition. The vehicle was later found abandoned on the nearside of Wai Yip Street outside Laguna City with the front nearside tyre missing. D4 was arrested nearby with the keys to that vehicle in his pocket. The car belonged to his father and D4’s  fingerprints were found inside the car.

15.  Just before the crashes on the bypass, a police officer, PW2, stopped his motorcycle on Wai Fat Road at its junction with Wai Yip Street, opposite the end of the Wai Fat Road slip road to the bypass. He observed  a badly damaged yellow Honda motorcar, MT 314, V5,  driven by D5, driving the wrong way  down the slip road and continue past the officer along Wai Fat Road against the flow of traffic. V5 stopped further along Wai Fat Road. PW2 approached the vehicle and attempted to detain D5 who escaped after a struggle. The officer was assaulted by D5 who elbowed the officer in the chest. A female passenger in V5 appeared to have sustained in juries.  She was holding her head in her hands and was lying with part of her body out of the car. She was taken by ambulance to hospital but discharged herself  before police officers were able  to speak with her.

16.  PW2 had earlier observed this vehicle  with a group of other racing cars being driven along Po Lam Road at speeds of over 100kmph. Some of the vehicles were only half a car length apart and they drove through two sets of traffic lights against the red light.

17.  Two months later, on 8 September 2009, D5 was arrested. An identification parade was held on the 22 September and PW2 identified D5 as the driver of V5 at the material time. V5 is owned by D5’s brother and the fingerprints of D5 were found inside the vehicle.

18.  Photographs of the badly damaged vehicles were produced as Ex P100 and P101.

Records

19.  D1 had four previous convictions none similar. D2 had five previous convictions, none similar. D3 had four theft related convictions in 2003. D5 was convicted of four offences on the same occasion, none similar although  mostly vehicle related. All the defendants has fixed penalty and other matters recorded on their traffic records.

20.  D4 had a clear criminal record. There were a number  of fixed penalty and other matters recorded on his driving record.

Mitigation

21.  D1 married in December 2009 and lives with his parents. He is aged 27 and was educated to Form 1 standard. He works as a driver.

22.  It was urged upon me that the period of driving was relatively short and no serious injuries were caused.

23.  D2 is 37 and educated to Form 3 level. He works in the material recycling business and earns HKD10,000 per month.

24.  Counsel pointed out that the roads driven along were quiet, it was late at night, the road conditions were good. The accident occurred on a three lane carriageway. D2 hit another car and not a car stationary in the road block. He made no attempt to escape from the scene.  It was also urged upon me that the police actions in setting up the road block put persons in harm’s way.

25.  D3 is 26 and was educated to form 3 standard. He sells second hand vehicles earning HKD15,000 per month  and lives with his parents and 2 elder brothers. He supports his 28 year old brother suffers from mental illness. His father does not work and the only other income earner is his mother who earns HKD6000 per month. He has supported the family for a long time and the loss of his contribution to the family finances will cause severe financial hardship for the family.

26.  He made no attempt to escape. A letter from his mother confirms the contribution and support shown by him to the family.

27.  D4 had a clear record although there were a number of fixed penalty points recorded. He is 29 and educated for From 5 standard. He was working as a salesman for a firm called Richburg Corporation since 1998. He gave in his notice when arrested for the present offence as he felt it was inappropriate to continue. At the time he left he had worked up to a senior position as the person in charge of  five departments working with 20 colleagues. A letter from the Chairman of Richburg was placed before the court. He spoke very highly of D4’s personality and integrity. A petition signed by 29 of his former colleagues was submitted to court.

28.  D5 is 28 and educated to Form 5 standard. He is a poultry worker earning HKD20,000 per month from which he contributes HKD8,000 per month to his mother. He is single and lives with his family. He has four elder brothers.

29.  Letters of support were handed to the court from his brother and two community leaders.

30.  I was told that since this incident the defendant has voluntarily undertaken and completed  a driving improvement course.

31.  It was submitted that the danger was exacerbated by the positioning of the partially formed road block just 70 metres from the bend outside Laguna City.

32.  I have been referred to a number of cases. The maximum penalty for dangerous driving is 3 years imprisonment. It was urged upon me that this was not of  worst case of its type which I accept.

33.  I was satisfied that on the night in question, all the defendants had engaged in illegal road racing on public roads. A group of vehicles, in excees of 10  was seen by a police officer in Tseung Kwan O driving along a 50kmph speed limit dual carriageway at more than twice the permitted speed. The group continued towards Sau Mau Ping. The cars were observed there still travelling at excessive speeds and went through two sets of traffic lights against the red lights. Some of the cars were only half a car-length apart. The group then continued to the Kwun Tong Bypass where there were a series of collisions involving private motor cars. D1- D3 remained at the scene. D4 and D5  reversed and made U-turns and drove their badly damaged motor vehicles the wrong was down a slip road and stopped nearby. D4 abandoned his vehicle and was arrested nearby. D5 was stopped by a police officer and ran off. He assaulted the police officer, made good his escape and was arrested two months later.

34.  I noted that the driving occurred at around 0200 hours, the roads used were relatively quiet and road  and driving conditions were good. I accepted that the police use of civilian drivers in the formation of a road block was entirely inappropriate. The actions of the officers put themselves and the drivers of the civilian motor vehicles at serious risk of injury. Just before the collisions, a motorcyclist had stopped in the slow lane behind a taxi. The collisions occurred very close to his location and it was most fortunate that none of the racing cars, many of which were out of control, came into contact with him. Had they done so, given the speeds at which the vehicles were being driven and the wreckage that was created at the scene, the defendants might well have faced a more serious charge.

35.  Driving in the manner the defendants chose to drive creates very serious risks for other road users and it is extremely difficult for police officers to deal with the situation effectively and safely. The defendants were not involved in a momentary act of dangerous driving. They had deliberately chosen to embark upon a sustained course of  driving in a manner which fell far below what would be expected of a competent careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

36.  In considering the appropriate starting point I have taken into account the wholly inappropriate manner in which the police officers chose to block the bypass. For D1 to D3 I take the view that a sentence of 12 months adequately reflects the criminality involved. They will also be disqualified for a period of three years from holding or obtaining a driving licence for all classes of  vehicles.

37.  The criminal actions of  D4 and D5 were exacerbated by their decision to reverse, execute U-turns and drive  their badly damaged vehicles against the traffic flow to make their escape. I take a starting point of 15 months imprisonment for their offences and I also disqualify them for three years.

38.  D5 was additionally convicted of assaulting a police officer in the execution of his duty. The assault consisted of one blow by the defendant with his elbow to the chest of the police officer and it allowed him to escape the scene. The officer said the blow hurt a little bit and the medical diagnosis was tenderness. There was no mark on the officer’s chest.  Assaults on police officers are serious and courts should pass sentences which deter offenders and which reflect the need to protect police officers in carrying out their duties. Given the relatively minor nature of the assault I propose to impose a sentence of one month imprisonment on D5 and order that it should run consecutive to the sentence imposed for the offence of dangerous driving. The total sentence of imprisonment for D5 will be 16 months.