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DCCC932/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 932 OF 2009
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| Before: |
HH Judge Tallentire |
| Date: |
14 October 2009 at 10.24 am |
| Present: |
Mr Alvin Chui, PP of the Department of Justice, for HKSAR
Ms Bina Dayaran Sujanani, instructed by Messrs Tai, Tang & Chong, assigned by the Director of Legal Aid, for the Defendant |
| Offence: |
(1) Dangerous driving (危險駕駛)
(2) Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit (在呼氣中的酒精濃度超過訂明限制的情況下駕駛汽車)
(3) Driving without a valid driving licence (駕駛時無有效駕駛執照)
(4) Driving a motor vehicle without third party insurance (沒有第三者保險而駕駛汽車)
(5) Driving without a valid vehicle licence (駕駛無有效獲發牌照的車輛)
(6) Failing to notify transfer of ownership of motor vehicle (沒有就汽車的過戶作出通知) |
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Reasons for Sentence
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1. Defendant, you have pleaded guilty to one offence of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap.374, one offence of driving with excess alcohol, contrary to section 39A(1) of that same ordinance, one offence of driving without a licence, contrary to sections 42(1) and (4) of that same ordinance, one offence of driving without insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272, one offence of driving without a valid vehicle licence, contrary to sections 52(1)(a) and (10)(a) of the Road Traffic Ordinance, Cap.374, and one offence of failing to notify transfer of ownership of vehicle, contrary to regulations 17(2)(b) and 60(1) of the Road Traffic Regulations and Licensing of Vehicles Regulations made under the Road Traffic Ordinance. You admitted the Brief Facts and I convicted you.
2. The facts were as follows. Around 2.07 am on 9 February of last PC1847, who was PW1, whilst on motorcycle patrol at the junction of Castle Peak Road and Tsing Hoi Circuit, saw you driving a private car MB 3601 between the lanes. He went forward to stop you, turning on the beacon light and using the PA system to tell you to stop. However, you did not obey and accelerated. You overtook several vehicles at high speed, that is around 100 kilometres per hour, and ran through five traffic lights with PW1 chasing you. Finally, you crashed into a taxi JT 6138 at the junction of Castle Peak Road and Tseng Choi Street. You were intercepted and arrested.
3. Both vehicles suffered extensive damage and your vehicle knocked down two ballard lights and one traffic sign. Three passengers in the taxi and the taxi driver were injured.
4. You were arrested at 2.18 am and the screening breath test showed 88 micrograms of alcohol in 100 millilitres of breath. You were taken back to the police station. You were subjected to an evidential breath test at 3 am which showed 70 micrograms of alcohol in 100 millilitres of breath, the limit is 22.
5. Your learner’s driving licence had expired on 7 November 2001. The vehicle licence had expired on 18 September 2008. Enquiries revealed that you had purchased the vehicle from a Mr Lee in June 2008 but failed to notify the transfer to the Transport Department.
6. Interviewing under caution, you made full admissions including that you tried to escape because you had no driving licence and had drunk beer. You also admitted speeding at the traffic lights and that you knew there was no insurance for the vehicle or vehicle licence.
7. You admitted to two previous convictions involving four offences. The second conviction was similar to the present case involving as it did drunk driving, no driving licence and no insurance. However, I do note that that was some six years ago.
8. Defendant, as you will recall, you were remanded in custody for reports. Those reports included a probation officer’s background report, community service organizer’s report and a psychologist report. You will also recall that I made it clear that on the last occasion that whilst I was asking for a community service report, this was at the request of your counsel and that community service was not a serious consideration in this case given the serious nature of the events.
9. Those reports are now before me, I have considered them. As I understand it, you admit the factual nature of those reports, if not, the opinion nature of the psychologist report. I do acknowledge that the probation officer’s background report and the community service organizer’s report are generally favourable. However, the psychologist’s report speaks of a shallowness in terms of your remorse and this contrasts with the probation officer’s report.
10. On your behalf, Ms Sujanani entered an impassioned plea in mitigation. You are 35 years of age, single, having been divorced. Your last employment was as an air-conditioning engineer. Ms Sujanani confirmed that you would have the car to repair and to sell. This vehicle was not intended to be used by you. On the day in question you had been drinking in various bars and returned to a bar to retrieve your mobile phone which had certain numbers which you required. The offence of dangerous driving was as a result of panic that you had no licence, no insurance and you had been drinking.
11. I understand that you do have an interest in car racing but that is restricted to the mainland where you were fully and properly licensed for that sport. It is entirely clear to me, and it is not part of the prosecution case, that car racing played no part whatever in the present circumstances.
12. Ms Sujanani urges me to recognize this as a one-off situation. She stressed your plea of guilty and emphasized your remorse. On your behalf, she asks me to accept the recommendation for community service coupled with psychological treatment. In the alternative, she urged me to take a lesser starting point than the maximum and to impose any sentences concurrent. She produced before me the case of HKSAR v Jim Chong Shing Cr App No. 186 of 2003. However, with respect, the facts of that case bear absolutely no resemblance to the present case.
13. I turn now to the sentence. In sentencing you, I took into account the facts and the nature of the charges, the mitigation advanced and the contents of the reports. I note the disagreement as to the genuineness in your remorse between that of the probation officer and the psychologist. This remains unresolved but I shall give you the benefit of the doubt.
14. This is a particularly serious catalogue of offences. It involves a man who had in drink been over three times the legal level, driving an uninsured vehicle, having no driving licence, that vehicle being untested, deliberately driving in an extremely dangerous manner to avoid arrest, that driving involved speeds at about 100 kilometres per hour, I assume that the speed limit at that point was 70 because the facts are silent on that point, the speed you overtook several vehicles and you ran through five red lights.
15. The incident ended with you colliding with a taxi, causing severe damage and injuries. It is clear beyond a shadow of the doubt that this driving manner was deliberate. It is also clear to me that it is purely fortuitous that no one was either killed or badly injured. It is fortunate indeed that the injuries to the taxi driver and three of the passengers were slight.
16. You have a previous conviction involving excess alcohol, a previous conviction involving non-insurance and a previous conviction involving no driving licence. I do, however, note that these were six years ago.
17. Given all the circumstances, especially the poor standard of your deliberate dangerous driving, placing other road users at risk when there was no insurance to compensate the death, injured or damaged and your state of having drunk three times of the legal limit, in my opinion, community service is not even remotely an option. In your favour, I do note that the injuries were slight, that you are entirely co-operative with the police after arrest, both in the giving of the breath samples and also the admissions you made, that you are remorseful now and you have pleaded guilty at the first available opportunity.
18. My approach in this case is to address the overall criminality involved of the whole incident and therefore to impose concurrent sentences where appropriate.
19. Charge 1 being dangerous driving, I took as a starting point 27 months’ imprisonment, reduced to 18 months for your plea of guilty. Additionally, even though you hold no licence, you will be disqualified from holding or obtaining a driving licence for a period of 3 years. This means that if you drive any motor vehicle on a road or at a place which the public has access including car parks during the next 3 years, you will commit the offence of driving whilst disqualified which is an extremely serious matter.
20. Charge 2 which is driving with excess alcohol, I took as a starting point 12 months’ imprisonment, reduced to 8 months for your plea of guilty. This will be served concurrently to the period on the 1st charge. You will be disqualified from holding or obtaining a driving licence for a period of 18 months, again concurrently to the period imposed on the 1st charge.
21. Charge 3 is driving without a valid driving licence, I took as a starting point 3 months’ imprisonment, reduced to 2 months and that will be served concurrently with your present sentence.
22. On Charge 4, I took as a starting point 6 months’ imprisonment, reduced to 4 months for your plea of guilty and that will be served concurrently. Additionally, you will be disqualified from holding or obtaining a driving licence for a period of 2 years, again, that will be served concurrently as indeed it has to be under the ordinance.
23. Charge 5 is driving without a valid vehicle licence, I took as a starting point 6 weeks’ imprisonment, reduced to 4 weeks for your plea of guilty, again, to be served concurrently.
24. On Charge 6 which is failing to notify transfer of ownership, whilst not trivializing that offence in any way whatsoever but given the period of imprisonment that you will serve and the fact that you will need to come out of prison and face the world at some stage, I impose an absolute discharge on that offence.
25. To summarize, the total effect of the sentence I impose is that you are to serve a total of 18 months’ imprisonment and be disqualified from holding or obtaining a driving licence for a period of 3 years from today. I find there are special reasons not to impose a driving improvement course in view of the fact that you are not entitled to drive in any event and could not drive before you have taken a proper driving test.
26. The question of compensation will be left to a civil court. There are different questions of quantum involved in this matter. I note that there is no driving licence in this case.
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Tallentire
District Judge |
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