HKSAR v. LAU HAU WING

DCCC 794/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 794 OF 2014

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Reasons for Sentence
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1. Defendant, you have pleaded guilty to two charges, the first being dangerous driving, contrary to Section 37(1) of the Road Traffic Ordinance, Cap 374, and resisting a police officer in the due execution of his duty, contrary to Section 36(b) of the Offences against the Person Ordinance, Cap 212.

2. The facts are as follows.

3. In the early hours of the morning on 5 November 2012, police officers saw the defendant whilst they were themselves driving an unidentified police vehicle.  They were targeting vehicles that were speeding. They saw the defendant in front of them.  They also saw the defendant change lanes, driving over continuous double-white lines.  He was also driving at a high speed. 

4. The police decided to follow the defendant and were some 60 metres behind him.  At this stage, the defendant was unaware that the police were following him.  Unaware, he sped at speeds detected at 135.33 and 136.10 kilometres per hour within one minute.  This is almost double the speed limit for that stretch of the road, which was 70 kilometres per hour. The police decided that enough was enough and switched on the vehicle’s siren to intercept the defendant.  The driver also, using a loudhailer, told the defendant to stop.  Instead of stopping, the defendant accelerated and fled. 

5. Paragraphs 5 and 6 coupled with the second and third sketch submitted, of the summary of facts, demonstrate how the defendant fled and drove dangerously.

6. The defendant drove between 80 to 110 kilometres per hour along Ping Ha Road to escape the police.  The speed limit on that stretch of road is 50 kilometres per hour.  In the course of the chase, the defendant cut across double-white lines onto the opposite lane against oncoming traffic to overtake vehicles that were in front of him in his lane.  After overtaking two vehicles, he cut back into his own lane.

7. He then approached a temporary roadworks and temporary traffic lights.  The traffic light was red, but the defendant drove through the red traffic light, causing oncoming traffic to have to stop abruptly to avoid a collision.  Sketch 3 shows this scenario.

8. Not long after, with the police still chasing him, the defendant stopped his vehicle and tried to run away on foot.  Two officers chased the defendant and a sergeant managed to stop the defendant. Just before the sergeant was about to handcuff the defendant, the defendant tried to run away again.  There was a struggle and the sergeant fell over. Despite that, he was able to subdue the defendant.  As a result of the struggle, the sergeant suffered abrasions on his arm.  The defendant was then arrested and told the police that he admitted everything.

9. Investigation reveal the defendant was driving on a learner’s driving licence only.

10. The defendant was given police bail, which he did not answer, and was not rearrested until some 18 months later. 

11. Prosecution was therefore time-barred from charging the defendant with any other driving offences that he should have faced, such as driving without third-party insurance and driving without a valid licence.

12. Mr Boyton, on behalf of the defendant, has explained that he fled because he was scared.  His instinct was to flee to evade arrest.

13. But from that action and his subsequent decision to jump police bail, I find the defendant has little regard for the law.

14. The defendant is not a man with a clear record: he has 10 previous convictions.  The majority were committed when he was under 20 years old.  They involve offences such as burglary, robbery, handling stolen goods, taking a conveyance without authority, and escaping from lawful custody.

15. The defendant’s best mitigation today is his plea of guilty.

16. As far as mitigation is concerned, the defendant is now 30 years old, divorced.  I have been told he left school after Form 3. He held a number of jobs for which he kept for months at a time.  At the time of the arrest, he had two jobs:  during the day, he worked for a decoration company and in the evening he sold second-hand vehicles.  It is very hard to sell vehicles when you have no driving licence and, as I have said, at the time of his arrest, he was only holding a provisional learner’s licence.

17. I have received a number of letters in mitigation, the first being from his employer, who appreciates the defendant is a hardworking employee and says he is a filial son and brother. 

18. The defendant himself has written a letter expressing his remorse, but, more importantly, expressing his disappointment in being unable to support his family financially.

19. There are letters from his wife...

COURT: Which I assume, Mr Boyton, is his girlfriend?

MR BOYTON: Yes.

20. ...as well as the defendant’s parents and younger brother.  All describe how they rely on the defendant financially.  Not only is he responsible for his father’s medical bills and medicine, his younger brother relies on him to support him where his university fees are concerned.

21. Mr Boyton has said all he can on the defendant’s behalf in mitigation.

22. What is relevant for sentencing is obviously the defendant’s driving manner, but I will also take into account that there were no collisions despite the driving manner being dangerous.  Nobody was injured or killed during the course of the chase.  This is extremely fortunate, because the defendant was driving without any third-party insurance.

23. For Charge 1, the maximum term of imprisonment is 3 years, unless aggravating factors exist.  None exist here.  The defendant’s culpability determines the sentence.

24. I have referred myself to the authority of Secretary of Justice v Poon Wing Kay [2007] 1 HKLRD 660. 

25. In particular, I quote from paragraph 10:

“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”

I also quote from paragraph 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 take into account the overall picture in order to arrive at an appropriate sentence.”

26. Where dangerous drivers are concerned, there are two extremes of the degree of culpability, the first being a momentary lapse or error of judgment and, secondly, more seriously, is where a driver has a selfish disregard for the safety of other road-users at the time.  In my view, this is the defendant in this case.

27. Defendant, please stand up.

28. I have taken into account the mitigation put forward, your plea, facts of this case, the driving manner as set out in the facts. 

29. Having taken these factors into account, I will take a starting point of 2 years’ imprisonment for Charge 1.

30. You have pleaded guilty.  You are entitled to a discount of one-third.

31. After that discount, you are, for Charge 1, sentenced to 1 year and 4 months’ imprisonment.

32. For Charge 2, resisting a police officer in the execution of his duty, on the facts, a term of imprisonment is appropriate.

33. I will take a starting point of 6 months’ imprisonment.

34. You are entitled to a discount of one-third for your plea and, after that discount is imposed, Charge 2, you are sentenced to 4 months’ imprisonment.

35. I will take into account the totality principle, where these charges are concerned, and for the 4 months’ sentence of Charge 2, I will order 2 months to be served consecutively to Charge 1 and the balance concurrently.

36. That is a total sentence for the two charges of 1 year and 6 months.

COURT: Do you understand that sentence?

DEFENDANT: Yes, I do.

37. There is a mandatory disqualification.  I will order a disqualification period of 3 years from holding or obtaining any class of vehicle licence.  That term of disqualification runs from today.

38. I do not consider a driving improvement course appropriate, because the defendant had no licence at the time of the offence.