HKSAR v. HUNG CHUN KIT

DCCC 1048/2021

[2022] HKDC 1048

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1048 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant (D)  pleaded guilty before me to a total of 5 Charges as follows:

Charge 1 : Dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374

Charge 2 : Driving a motor vehicle with any concentration of specified illicit drugs, contrary to section 39K(1)  of the Road Traffic Ordinance, Cap 374

Charge 3 : Driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374

Charge 4 : Using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272

Charge 5 : Driving an unlicensed vehicle, contrary to section 52(1)  and (10)(1)(a)  of the Road Traffic Ordinance, Cap 374

2.  All Charges arose from an incident occurred on 8 April 2021 in or around Shatin District when D was driving a private car bearing registration number TK2931 on the road.  D admitted to the Summary of Facts presented by the prosecution and was convicted of all Charges.  He now stands to be sentenced.

Facts of case

3.  According to the Summary of Facts as admitted by D, at around 9:53 am on 8 April 2021, 2 police officers, Sgt54475 (“PW1”)  and SPC33172 (“PW2”)  were onboard a Police Vehicle at Tai Po Road-Shatin Section (Kowloon Bound)  near chainage 9.8A near Ma Liu Shui.  They spotted a private car bearing registration number TK2931 (“V1”)  passing by their Police Vehicle.  The Automatic Number-Plate Recognition System (ANPRS)  installed in the Police Vehicle detected that the licence of V1 has expired.  There is no dispute that D was the driver of V1.

4.  The officers immediately gave chase to V1 and switched on the beacon light and siren.  They also repeatedly demanded V1 to stop using the loudhailer.  However, V1 disregarded all such warnings and accelerated towards Shatin at high speed (I was informed that the officers estimated the speed of V1 to be around 90kph when the speed limit at that stretch of the road was 80 kph).  What followed was a dangerous chase of V1 by the Police Vehicle which could resemble a stun scene in a movie, details of which are as follows:

4.1  When V1 reached Yuen Wo Road, it went against a red traffic light. At the junction of Fo Tan Road and Tai Chung Kiu Road, it went through another red light and turned right against a road marking for “left-turn only”.

4.2  At Tai Chung Kiu Road near Belair Garden, V1 went through another set of red traffic light (I was informed that the officers estimated the speed of V1 at the time to be about 130 kph when the speed limit was 50 kph).

4.3  When reaching Che Kung Miu Road near Chun Shek Estate, V1 suddenly slowed down and reversed for about 20 meters, almost ramping into other vehicles in the area. It then suddenly accelerated and surpassed the Police Vehicle again. When reaching the junction with Sha Tin Tau Road, V1 went through yet another set of red traffic light and turned left, disobeying a road marking denoting “driving ahead” only. This was captured by the open-source footage.

4.4  At the round-about at Sha Tin Tau Road, V1 made a U-turn and moved toward Che Kung Miu again. At near the junction of Tai Chung Kiu Road and Sha Kok Street V1 was blocked by other vehicles stopping at the red traffic light. V1 stopped on the 2^nd lane with the Police Vehicle stopped on the 3^rd lane.

4.5  PW2 alighted from the Police Vehicle and tried to open the driver’s door of V1 but in vain as it was locked. Suddenly, V1 accelerated and rammed into a private car (“V2”)  in front, pushing it forward for about 2 meters. PW2 was nearly trapped between V1 and a goods vehicle on the right but he managed to dodge in time. V1 continued to move forward. PW2 returned to the Police Vehicle and continued the chase. This was captured by the open-source footage.

4.6  When V1 reached Sha Tin Road near Sha Tin Road Bridge, it suddenly cut 3 lanes across to the right, driving against the direction of traffic flow for about 30 meters. This was captured by the open-source footage.

4.7  When V1 reached Ngan Shing Street near Prince of Wales Hospital, it was moving on the right-most lane while the Police Vehicle was chasing on the middle lane. Suddenly V1 cut in front of the Police Vehicle, causing the latter to ram into the rear of V1, but the chase continued. This was captured by the car camera of V3 (see below).

4.8  When reaching the junction with Chap Wai Kon Street, V1 was in the middle lane and was blocked by vehicles stopping for red traffic light. V1 forcibly drove forward into a gap between 2 taxis (“V3” and “V4”)  which were in the middle and right-most lanes. As a result, V3 and V4 were damaged. However, there was a Citybus (“V5”)  and another private car (“V6”)  blocking V1, preventing it from moving forward anymore.

4.9  At this point, PW1 and PW2 alighted from their Police Vehicle. PW1 ran towards the driver’s seat of V1 while PW2 approached the front passenger seat. PW2 drew his revolver, aimed at D, and repeatedly warned D “Don’t move or I will fire”. Despite such warning, V1 reversed, rammed into the front of V3 and V4, passing through the gap between the 2 taxis again, and collided with the front of the Police Vehicle and another private car (“V7”). PW1 was almost knocked down by V1 but he managed to dodge in time. PW1 and PW2 then dashed towards the front of V1, repeating their warnings in doing so. V1 then accelerated forward again and almost knocked down PW2. It drove into the gap between V3 and V4 again and rammed into the back of V5 and V6. PW1 also drew his revolver at this stage. Being unable to push its way pass V5 and V6, V1 reversed again and rammed into the front of V3 and V4 yet again. This was captured by the car camera of vehicles in the vicinity.

4.10  PW1, who was standing about 1 meter to the right of the driver’s seat of V1, then aimed his revolver at the upper body of D and warned him to stop, or he would open fire. Yet D tried to accelerate again and turned the steering wheel towards PW1. This was captured by the car camera of V3. In order to protect himself, PW2 and other road users from life-threatening danger, PW1 fired 1 round at D through the window glass pane. The bullet hit the right shoulder of D. D then raised his hands and said he would stop. PW1 immediately took D out of V1 and arranged medical treatment for him. PW2 arrested and handcuffed D but no caution was administered in view of his injury. PW1 then noticed that a female passenger and a 2-year-old girl were inside V1.

5.  D was sent to PWH for medical attention.  On 10 April when his condition stabilized, he was cautioned for various related offences but he remained silent under caution.  In a video-recorded interview under caution taken on 13 April, D admitted under caution, inter alia, that he worked as a construction worker.  He resided with his girlfriend, their 2-year-old daughter and a 5-year-old son of his girlfriend.  His driving licence had expired about 3 to 4 years ago.

6.  Blood sample of D was taken at 6:45 pm on 8 April, about 8 hours after the incident, and sent to Government Laboratory for examination.  The blood test revealed, inter alia, that Methamphetamine (concentration 0.22 ug/mL)  and traces of Morphine (could be a metabolite derived from heroin)  were found in D’s blood. 

7.  Subsequent enquiries by the police revealed that D’s driving licence had expired since 25 November 2014, and the vehicle licence of V1 expired on 26 February 2021 while its 3^rd party insurance policy expired on 19 January 2021.

8.  According to the medical reports of PW1, PW2 and the innocent parties involved in this case, the injuries received by each of them were not serious and are as follows:

PW1: Right wrist and hand injury, treated and discharged

PW2: Right wrist sprain, treated and discharged

Passenger of V2: Neck sprain, treated and discharged

Driver of V3: Left shoulder and neck pain, 3 days’ sick leave

Driver of V4: Neck sprain, 7 days’ sick leave

Defendant’s Background

9.  According to the Background Report, D is 47 years old, born in Hong Kong on 1 September 1975.  He was 45 at the time of the incident in April 2021.  He married in 2003 but divorced in 2013 with 6 children in the wedlock, from 24 to 10 years old, all not living with D.  He co-habited with Madam WONG in 2019.  They have a daughter who was 2 years old at the time of the offences.  Both Madam Wong and the daughter were in the vehicle during the incident giving rise to the present case.  Madam WONG had deserted D with their daughter after D was remanded for the present case.

10.  D did not have a good start to his life.  He quitted school without completing Form 1 education.  His parents divorced over 30 years ago.  He and his younger brother followed his mother.  Later, his mother left to work in Pakistan, leaving him and his brother to reside and study at a boarding school.  His father lives in the mainland.  D had his first criminal conviction in 1991.  Since then, he has accumulated 26 convictions on 12 occasions, and has been in and out of prison over the years.  Among the convictions there were 2, in September 2016, relating to driving without a valid licence and without 3^rd party insurance.  He was last discharged from prison in December 2018.

11.  Prior to the present offences he claimed to be a construction site worker earning about HK$10,000 per month.  He was on CSSA from December 2020 but his file was closed in June 2021 after the present remand.

Mitigation

12.  In mitigation, Mr So representing D submitted that on the day in question D needed to take the 5-year-old son of Madam Wong to school as the child was not feeling well and was late.  The whole family, including Madam Wong and their 2-year-old daughter went together.  During the return journey the daughter was choking when eating a cake for breakfast.  He was extremely concerned for the safety of his daughter and thus ignored the warnings by the chasing police officers in an attempt to take the daughter to hospital as quickly as possible.  Mr So attributed the behaviour of D during the whole episode to “momentous wrong decision”.  There was no devilish purpose behind D’s course of conduct.

13.  Mr So submitted that D was not a drug addict and had definitely not taken any drug that morning.  D was sober when he was driving.  The illicit drugs found in his blood was probably a result of a meeting with his friends a few days prior to the incident when he was offered something on a trial run basis.  D also told the Probation Officer that he had taken some pain killer prescribed by medical practitioner to treat his back pain and had a shared use of hookah with his friends who had taken “ice”.

14.  Mr So also submitted that according to the medical report on D prepared by the PWH dated 20 April 2022, the bullet shattered the right scapula bone and finally find a resting place in the right inferior aspect of the 4^th thoracic vertebral body.  There were also prolapse of the invertebral disc at the L4/L5 vertebra at the lumbar segment of the spine so much so that the spinal canal there was much narrowed.  The metallic nature of the bullet made it impossible to do a more detailed examination by MRI.  The injury was due to the impact energy of the bullet and the damage to the spinal cord blood supply.  Since the incident D has no muscle power over his right lower limb.  He has to rely on wheelchair for movement.  Pain and temperature sensation were much reduced over the right lower limb and right side of body from below the nipple level.  These neurological deficits are permanent. 

15.  A number of letters written by D himself were submitted in support of his mitigation.  The contents basically reflected what Mr So had submitted on his behalf.  Also, he acknowledged that Madam Wong had deserted him and asked the Court to be as lenient as possible to him so that he would be released as early as possible to adjust to the new way of life he is to face as a result of the permanent injuries he had suffered.

16.  On the issue of injuries sustained in the course of a criminal conduct, Mr So submitted that generally speaking it may not be a mitigation factor but in the context of the present case, the injuries sustained by D was so serious that it should be considered as an exceptional circumstance when compared with the criminal conducts of D, and some discount should be accorded to D in sentencing, citing HKSAR v Yip Kai Foon[1] in support.

17.  Mr So cited a number of District Court Cases as examples and asked the Court to consider a starting point of 3 years for Charge 1, 18 months for Charge 2, 3 months for Charge 3, 6 months for Charge 4 and a fine for Charge 5.  He also urged the Court to give a full 1/3 discount to D for his guilty plea.  He submitted on the totality principle an overall starting point of 3 years and 6 months would be appropriate in the present case.

18.  On the issue of disqualification from driving, Mr So submitted that given the physical condition of D as it is, the issue is an academic one as D is unlikely to be able to drive again in the remainder of his life.  He submitted a disqualification order for 1 year each for Charges 1 & 2 would suffice.

19.  After initial mitigation by Mr So, I adjourned the case for a Background Report and invited further submissions by the parties on various issues arising from the case.  At the resumed hearing, D, through his Counsel, applied to withdraw part of the facts he had admitted in paragraph 4.10 mentioned above.  His stance was that he had raised his hands already when PW1 open-fired at him. 

20.  Mr So submitted that D did not understand English and had to rely on the interpretation provided to understand the facts read out, which was rather lengthy.  During the adjournment he suddenly realized what was read out in Court was not in accordance with his version of events, at least not on this part of the incident.  The facts D is seeking to withdraw does not affect the convictions nor relevant in assessing the sentence. If needed be, he invited the Court to conduct a “Newton Hearing” to decide on the issue.

21.  Mr Wong for the prosecution objected to the application.  He pointed out that the “Summary of Facts” read out in Court was included in the Transfer Bundle when the case was transferred to the District Court.  D’s legal team were assigned to represent D as early as 23 December 2021.  D indicated his intention to plead guilty to the Charges on 16 February 2022 and the case was originally set down for plea and sentence on 20 April 2022, only to be adjourned to 15 August 2022 on the application by the defence for the preparation of medical reports on D.  At no stage up to the present application did D raise any issue on the contents of this document.  There is no or no sufficient legal basis for D to put forward this application.  A “Newton Hearing” is unnecessary and unwarranted.

22.  I have confirmed with Mr So that the contents of the “Summary of Facts” had been explained to D by his legal team prior to the pleas being taken before me on 15 August 2022.  There is no allegation by D of failure by his legal team in the process.

23.  Having considered the matter, I refused the application by D nor did I consider a “Newton Hearing” being necessary.  I will proceed to consider sentence in the light of the facts as originally admitted by D.

24.  On the day scheduled for sentence, Mr So informed the Court that D had indicated that he had lost his confidence on his legal team.  Mr So applied for leave to be discharged, this also included his instructing solicitor.  The application was granted and the case was further adjourned for a team of new lawyers to be assigned by the DLA.  D is now represented by Mr Lee, who confirmed that there is no other outstanding matters to be dealt with prior to sentence.

Sentence

25.  In considering the facts of the case, I have the benefit of viewing the footages from the car cameras and an open-source footage.  They were played in open court.  I have indicated to the parties that I will not take into account the commentaries accompanying the open-source footage. 

26.  I was informed that the shot which brought the episode to an end was fired at about 10:00 am.  The chase began when D was spotted at about 9:53 am.  Therefore, the dangerous driving by D through the streets of Shatin lasted about 7 minutes.

27.  Mr So submitted that the speed estimations of V1 by the police officers should not be taken into consideration as there was no objective parameter to gauge the accuracy of such estimation.  While I agree they were just estimations, they could shed light on the high speed V1 was travelling which must have been above the speed limit, particularly relating to the episode described in paragraph 4.2 above.

28.  This is a very bad case of dangerous driving. What D had done during the incident had caused injuries to at least 2 police officer and 3 other innocent road-users.  It was a miracle that none of the injuries suffered by them were serious.  Apart from D’s own vehicle, a total of 7 other vehicles had been damaged, some severely so.  It was again a miracle that only 7 other vehicles were affected.

29.  The facts of this case are very much similar to those in SJ v Ko Wai Kit[2]. In that case, D drove his van through the streets of Kowloon, pursued by a motorcycle police officer.  He committed one traffic offence after another, including jumping red lights, colliding with other motor vehicles, driving against the flow of oncoming traffic, injuring civilians and continually failing to obey police commands to stop.  He drove through a gap of a road block set up by the police, and caused an officer to fear that he was to be run down, so much so that he drew his revolver and fired at the van.  Unlike the present case, it did not hit the appellant.  The CA described that case to be a “shocking case of dangerous driving, which was the worst of its type”, and considered a starting point of 3 years’ imprisonment, which was, and still is, the maximum term of imprisonment, ought to have been taken.  The CA in that case commented “So dangerous and wicked was the driving in this case, so threatening to public safety and to the safety of police officers, who are there to protect other drivers from such conduct, that the maximum permitted is a constraint which might be thought to be contrary to the public interest.”[3]

30.  Up to today, there is still no change to the maximum sentence under section 37 of Cap 374.  However, in 2010 sections 37(2D)  and (2E)  were enacted to allow the maximum sentence and period of disqualification for this offence to be increased by 50% if committed in circumstances of aggravation, which included that at the time of committing the offence, any concentration of a specified illicit drug is present in the person’s blood or urine.

31.  In the blood sample taken from D over 8 hours after the incident, it was found that there was a concentration of 0.22ug/mL of Methamphetamine and traces of Morphine (which could be a metabolite derived from heroin)  which were specified illicit drugs as defined in Schedule 1A of Cap.374 present in his blood.  Therefore, the maximum sentence applicable to Charge 1 in the present case is increased by 50%, to 4 1/2 years’ imprisonment.

32.  D claimed that he drove in the manner he did as he was trying to take his 2-year-old daughter to hospital.  His daughter was choking as a result of taking in a cake.  Mr So described D driving manner as a “momentous wrong decision” without any “devilish purpose” behind his conduct.  I do not accept this claim by D.  His driving licence had expired since 2014.  He was convicted of Charges identical to Charges 3 and 4 in the present case in September 2016 and was sentenced to 6 weeks’ imprisonment with disqualification from driving for 2 years.  He had not renewed his driving licence up to the date of the present offences.  He could have been in no doubt that he was committing offences warranting imprisonment when he was being pursued by the police.  I was informed that some items found in the boot of V1 were suspected to be connected with a burglary case but the matter is sub judice.  As such, I do not take this matter into consideration.  Incidentally D was also convicted of Burglary in September 2016 together with the 2 traffic-related Offences mentioned above.  In any event, if what D claimed in relation to his daughter was true, I would have expected him to stop immediately and sought assistance from the police officers in the Police Vehicle behind when being trapped in traffic for the first time at Tai Chung Kiu Road mentioned in paragraph 4.4 above, instead of making dangerous manoeuvers as described in that paragraph.

33.  D also claimed that he had not taken any illicit drug prior to driving that morning, he was sober during the incident even though illicit drugs were found in his blood sample.  I equally reject this claim.  The blood sample was taken from D over 8 hours after the incident. There were still some concentrations of methamphetamine and heroin derivatives found in his blood.  At the time he had his girlfriend and their infant daughter in V1.  No person with proper control of his faculties would have risked the lives of his beloved ones and drove in such dangerous manner as he did.  In any event I note that section 37(2D)  did not require proof of D having driven under the influence of the illicit drugs.  The presence of such drugs in his blood would be sufficient to trigger the application of this sub-section.

34.  The facts of this case were very close to, if not on par with, those in Ko Wai Kit.  Maybe the duration of the dangerous driving in the present case was shorter.  Taking all relevant factors into consideration, I consider a starting point of 4 years’ imprisonment appropriate for Charge 1.  This is reduced by 1/3 for D’s timely guilty plea to 32 months.

35.  For Charge 2, there is again no requirement to prove that D was in fact affected by the specified illicit drugs present in his blood.  The maximum sentence is the same as section 37(1).  I adopt a starting point of 18 months for this Charge, reduce it by 1/3 to 12 months for the timely guilty plea.  Since this factor has already been taken into account when the sentence in Charge 1 was enhanced, I order the sentence of Charge 2 be run concurrently with those imposed on Charge 1.

36.  For Charge 3, this is D’s second conviction of the same offence.  The maximum sentence is 6 months.  As mentioned above, D must have been fully aware that he was committing this offence when he started to drive that morning.  I consider a starting point of 3 months appropriate for this Charge.  This is reduced by 1/3 to 2 months for his timely guilty plea.

37.  I was informed by the prosecution that D purchased V1 in February 2021.  The vehicle licence expired on 26 of the same Month whereas the 3^rd party insurance expired on 19 January 2021.  However, by the time when the present case occurred, V1 was still registered under the name of the previous owner.  For Charge 4, again this is his 2^nd conviction for the same offence.  The maximum sentence is 12 months.  I adopt 9 months as the starting point, reduce it by 1/3 to 6 months for the timely guilty plea.  For Charge 5, the maximum sentence is 3 months.  I adopt 3 weeks as the starting point, reduce it by 1/3 to 2 weeks for the timely guilty plea.  Charges 3 to 5 were committed together, I order sentences for these 3 offences to run concurrently.

38.  According to the mitigation put forward by D, he drove V1 to take his girlfriend’s 5-year-old son to school.  They resided in Sha Kok Estate in Shatin and was first spotted by the police when he was driving near Ma Liu Shui towards Shatin.  The boy was no longer in the vehicle.  There is no information available to me as to where the school of the boy was.  However, D must have been driving for some time before he was spotted by the police.  Therefore, Charges 3 to 5 were committed separate and distinct from Charge 1, and the sentences should in principle be consecutive to those imposed on Charge 1. 

39.  For the injuries sustained by D, the CFA in Yip Kai Foon approved the principles laid down by the CA in R v Chak Shui Chung[4] that in the majority of cases the injured person has brought his misfortune upon himself and it is the criminal act which attracts the punishment, a punishment not lessened by virtue of damage to the perpetrator of that act while in the course of it.  However, in exceptional cases where the injuries were very serious, even when suffered in the course of the criminal activity, they can be taken into account to reduce the sentence.  In deciding whether the sentence should be reduced for this reason, all the circumstances of the case would have to be considered[5]. 

40.  Applying these principles to the present case, I agree that the injuries sustained by D as a result of the gunshot wound were serious and permanent.  In all probabilities he would be wheelchair-bound for the rest of his life.  The offences he had committed were serious, but not as serious as those committed by the appellant in Yip Kai Foon.  Having considered all relevant circumstances in the present case, I am prepared to reduce the sentence on D by 2 months.  This is achieved by reducing the sentence of Charge 1 by 2 months to 30 months.

41.  In relation to the period of disqualification for driving, as Mr So submitted, it may well be academic as it is unlikely that D would be able to drive in the remainder of his life.  Be that as it may, it is my duty to impose periods of disqualifications for Charges 1, 2 and 4.  For each of these Charges, D is disqualified from driving or obtaining a driving licence for all classes of vehicle for a period of 3 years, which will start to run after he had served his sentence.  All disqualification periods are to run concurrently.  He must also attend and complete a driving improvement course at his own cost before he can apply for a driving licence.

Conclusion

42.  For the reasons set out above, D is sentenced as follows:

Charge 1 : 30 months

Charge 2 : 12 months, concurrent to Charge 1

Charge 3 : 2 months, concurrent to Charge 4

Charge 4 : 6 months, consecutive to Charge 1

Charge 5 : 2 weeks, concurrent to Charge 4

Total sentence: 36 months

For Charges 1, 2 and 4, D is disqualified from driving or obtaining a driving licence for all classes of vehicle for 3 years, all to run concurrently and will start to run after the sentence has been served out. Driving improvement course must be completed at D’s own cost before a new licence could be issued.