HKSAR v. NG CHI WAI

 DCCC156/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 156 OF 2010

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Reasons for Sentence

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1.  Defendant has pleaded guilty to five charges before this court. The defendant admitted to driving an unregistered, unlicensed vehicle without third party insurance on a road dangerously whilst disqualified and failing to stop after an accident where damage was caused to another vehicle. All these offences took place on 22 September 2009 shortly after 2318 hours, whilst the defendant was driving a private car in the New Territories area around Sheung Shui, Fanling and Tai Po.

2.  The 1st charge is a charge of dangerous driving contrary to Section 37 of the Road Traffic Ordinance, whereby the defendant admitted that he drove a private car on a road dangerously.

3.  The 2nd charge relates to failing to stop after an accident where damage was caused to another vehicle, contrary to Section 56(1)(b) and (5) of the Road Traffic Ordinance. For that charge he has admitted to causing damage to three vehicles, that is, a police vehicle, public light bus and a private car.

4.  The 3rd charge is a charge of driving an unregistered and unlicensed vehicle contrary to Section 52(1)(a) and (10)(a) of the Road Traffic Ordinance. The defendant admitted that he drove the vehicle, which was not registered or licensed in accordance with the Road Traffic Ordinance.

5.  The 4th charge relates to driving while disqualified, contrary to Section 44(1)(b) of the Road Traffic Ordinance. The defendant admitted that on that day he was disqualified from holding or obtaining a driving licence while he drove his private car.

6.  The 5th charge is a charge of 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. The defendant admitted that he drove the private car when there was not in force, in relation to him, a policy of insurance.

7.  I turn now to the facts of this case. Before I start I will just state that there were eight incidents that took place in various areas and I shall be referring to those as Area 1, 2, to 8. At about 2318 hours on 22 September, two police officers were patrolling on board a police vehicle with registration number AM 8937 along Fanling highway outside Choi Yuen Estate near Chung Pak Long Village, Sheung Shui, New Territories, Area 1.

8.  The officers saw the defendant driving the vehicle at a speed of approximately 110 to 120 kilometres per hour. The statutory speed limit for that area was 100 kilometres. The police officers immediately switched on the blue beacon light of the police vehicle and followed the defendant’s vehicle from behind. The police vehicle was also a marked police vehicle with blue and yellow markings with the flashing lights located across the top roof of the police vehicle. The defendant, however, disregarded the beacon light switched on by the police officers. He carried on driving at a high speed along the highway.

9.  Soon afterwards, he reached the roundabout at Kai Ling, Fanling, Area 2, on the highway. The defendant then drove his car around the roundabout continuously three times at 50 to 60 kilometres an hour. The statutory speed limit there was 50 kilometres an hour. He then pulled out of the roundabout through the exit towards Yuen Long, hastily. He drove the vehicle at high speed along the highway and upon reaching this time, the Sheung Shui roundabout, Area 3, the defendant applied his brakes abruptly once. However, fortunately no danger was caused to the vehicles behind. He then drove around the roundabout eight times continuously before he pulled out of the highway to exit towards Tai Po, hastily. The statutory speed limit for the Sheung Shui roundabout was 50 kilometres per hour.

10.  Upon exiting the roundabout towards Tai Po, the officers estimated that the defendant was travelling at about 160 to 170 kilometres per hour. When the defendant was on the highway just outside the Fanling station he slowed the car down suddenly and the police car, which was following behind on the near lane, came close to the rear side of the defendant’s vehicle. The defendant then steered his vehicle to the left sharply; that is, towards the police car which caused the police officer, who was driving the police car to immediately apply the brake to avoid a collision. Fortunately, the collision was avoided. The defendant carried on driving towards Tai Po at high speed with the police car following behind. This was Area 4 and the statutory speed limit there was 100 kilometres an hour. The police car was following closely behind the defendant’s vehicle.

11.  The defendant then left the highway and drove into Tai Po Tai Wo Road in Tai Po. And upon reaching the junction with Po Nga Road outside Po Nga Court, Area 5 at Tai Po, he encountered a traffic light. He then made a sharp U-turn and fled Tai Po by Tai Po Tai Wo Road in the direction of Fanling once again. The statutory speed limit for Area 5 was 50 kilometres an hour. The police car followed the defendant’s car from behind and soon after, the defendant re-entered the highway.

12.  The defendant then drove along the highway and took the exit for Fanling. When the defendant reached the junction of Pak Wo Road and Wah Ming Road, Area 6, he encountered a traffic jam with five vehicles stopping in front of the traffic light, which was showing a red light. The vehicles occupied all three lanes of traffic before the traffic light. The defendant therefore stopped behind these vehicles.

13.  Soon afterwards, the police vehicle reached the back of the defendant’s vehicle. There was a narrow space between a private car in the second lane and a public light bus in the third lane, which had stopped just before the traffic light. All of a sudden the defendant accelerated his car and hit the rear side of the private vehicle and the left side of the minibus once. He then reversed his car and hit the police vehicle at its front once. He then accelerated his car again and hit the rear of the private car and the public light bus for a second time and reversed and hit the police vehicle at its front, again, for a second time. Afterwards, he then accelerated his car again and hit the private car and minibus ahead of him for the third time. After the collisions, there was just enough space between the minibus and the private car for the defendant to drive his vehicle between. As a result of these collisions, all three cars were badly damaged. The statutory speed limit for Pak Wo Road was 50 kilometres an hour.

14.  The defendant then made a U-turn along Pak Wo Road in the direction of the Jockey Club Road and the police car continued to follow from behind. He drove dangerously and jumped one red light at Pak Wo Road junction with Wo Hing Road and he further jumped another red traffic light at the junction of Jockey Club Road and Lok Yip Road, Fanling. He then made a right turn into Lok Yip Road and into On Chuen Street, Area 7. The statutory speed limit there was 50 kilometres an hour.

15.  Upon reaching a lamppost On Chuen Street, the defendant applied the brake of his car abruptly and suddenly, and then accelerated repeatedly. I refer to this as bunny-hopping. The defendant should have been aware that the police vehicle was following him from behind and in view of the braking of his car, the officer had to apply the brakes of the police vehicle abruptly to avoid hitting and colliding with the defendant’s vehicle. Thereafter, the defendant lost control of his vehicle, he crashed into and hit the concrete pillars on the pavement of On Chuen Street, which caused his vehicle to come to a halt. The defendant then jumped out of his vehicle and fled on foot in the direction of Luen Wo Hui. An officer alighted from the police vehicle and chased after the defendant whilst the other officer drove the police vehicle with a view to locating the defendant in the vicinity of Luen Wo Hui. However, the officer lost sight of the defendant very soon.

16.  The drivers of the private car and the minibus were injured. The private car driver received medical treatment at North District Hospital and was discharged after treatment. The police found two mobile phones, an Octopus card and four keys on the driver’s seat of the defendant’s vehicle. Based on the registration number of this private vehicle, the police located the registered owner, who was a person by the name of Sze Ching-yee. He confirmed that he had permitted the defendant to register a private car under his name, the vehicle, however, was used exclusively by the defendant. The licence fees of the registration number for the vehicle remained unsettled before 22 September 2009. Third party insurance on the vehicle had already expired before 22 September 2009.

17.  The defendant was located at the end of 2009 and on arrest and under caution he admitted he was the driver that evening on 22 September 2009. He admitted that he drove his vehicle knowing that it did not have valid third party insurance, and was unregistered and unlicensed. He knew that the police vehicle had been following him with a warning to tell him to stop, but he chose to ignore the demand of the officers. He admitted that he had been driving without a valid driving licence and that he was subject to a disqualification order imposed by the court in October 2008 and that he was still disqualified from driving on 22 September 2009.

18.  He claimed that the mobile phones the police found on the vehicle and the Octopus card, ignition key were his.

19.  The cost of repairing the damage of the private car was in the sum of $18,000. The cost of repairing the minibus was $2,800. And the cost of repairing the police vehicle was in the sum of $62,000.

20.  Mr Lo, solicitor for the defendant, mitigated on his behalf. I have taken into account all that he had to say in mitigation. The defendant is aged 37. He has 11 previous convictions arising from seven occasions. He has two similar previous convictions of dangerous driving, one in 2002 and one in 2008. For the 2008 conviction for dangerous driving, he was given a sentence of three months’ imprisonment, suspended 18 months and disqualified from driving for 18 months. From that same occasion, there were two offences of failing to stop in case of an accident where damage was caused to a vehicle, and one of using a motor vehicle on a road against Third Party Risks to which he was disqualified from driving for 18 months to run concurrent with the dangerous driving charge.

21.  He therefore has two similar convictions to dangerous driving, two similar to failing to stop in case of an accident and one similar of using a motor vehicle with third party insurance.

22.  As for his traffic record, the defendant has seven previous for speeding over 15 kilometres an hour but under 30khm and three for speeding over 30 kilometres an hour, but not more than 45 kilometres an hour.

23.  One previous for careless driving in 2002. He was disqualified under the (Driving-Offence Points) Ordinance, 19 December 2007 for that, and for overtaking another vehicle on its near side on 22 January 2008. He has also other offences that were failing to display a trade plate and forgery of documents.

24.  In mitigation, it was put forward by Mr Lo that the defendant worked as a second-hand car dealer earning $10,000 a month. He has a younger sister, who is mentally retarded, and is boarding in an institution for mentally retarded patients. His mother suffers from ankle rheumatism and in the circumstances the defendant is the main breadwinner for his mother and his sister. He therefore had to work and earn a living to support his family. In so doing, he took the risk of driving even whilst he was disqualified.

25.  On the evening in question, he had taken his car to show to a prospective purchaser as he had advertised his car for sale for the sum of $7,000 and as the purchaser had requested him to take the car to the purchaser, he had no choice but to drive his car to the purchaser. Upon driving the vehicle to the purchaser, he was spotted by the police officers and he had seen the police officers turn on the blue light, but knowing that he was disqualified and encountering the police, he was afraid of being put behind bars and therefore, out of stupidity, he chose the course of action as described by the facts of this case.

26.  Mr Lo said the defendant accepts that he was a coward for not facing reality and chose to escape in those circumstances. The defendant is remorseful for what he has done as shown by his plea of guilty and has, through Mr Lo, extended his apologies to the injured and to the damage caused the vehicles. I have also taken into account the letters written by the defendant and his mother. I am also informed that he had planned to get married this year, on 14 February, but as a result of this incident he was not able to, however, his girlfriend remains fully supportive and has been here in court on the last few occasions and today.

27.  Mr Lo has asked me to take into the account the principle of totality and pass as lenient a sentence as possible to give the defendant a very last chance.

28.  What transpired after the defendant was seen by the police officers and the police vehicle siren was turned on was something equivalent to what one would see or expect to see in the movies. It is sometimes quite unimaginable to see that in reality. Immediately when the police officers turned on the siren, the defendant attempted to flee and escape. He paid a total disregard to the presence of the police car and it was a deliberate attempt to get away when his car was in hot pursuit by the police vehicle. The defendant thereafter drove his car dangerously, at high speed and with complete disregard to other cars on the road and the police car. He drove around two roundabouts, the first one three times, the next one eight times. He drove at extremely high speed along the highway at approximately 60 to 70 kilometres over the speed limit, which was approximately 160 to 170 kilometres an hour.

29.  Despite other cars on the road, which were obeying the traffic lights, he deliberately drove his car to collide with them and the police vehicle in order to escape. One can only describe how he drove in bumping into the cars in front and the police vehicle behind as someone who gets into bumper cars in an amusement park. In so doing, he caused injury to the driver of the private car. Thereafter, he jumped red lights and eventually lost control and hit three concrete pillars and eventually escaped.

30.  The defendant has demonstrably shown himself to be a menace to the driving public and their passengers. It was sheer luck and fortuitous that no one here was seriously injured. Whilst the defendant was driving whilst disqualified, of course he could not be insured, therefore the public were at risk. The reasons the defendant gave for driving that night are poor, inconceivable and wholly unacceptable. The defendant showed a blatant and flagrant and deliberate defiant intention to disregard his previous court order when driving whilst disqualified. His previous sentences clearly show that they have put no deterrence on the defendant. He has no control of himself.

31.  He has committed similar offences before. Previously, he had received non-custodial sentences. Very disappointingly, he failed to treasure the chances given on those occasions granted by the court and he soon relapsed into breaching the very same offences again.

32.  Defendant, you have a very bad driving record. This will be your third conviction for dangerous driving, your third conviction for failing to stop, second for driving without third party insurance and you have been disqualified previously under the Points Ordinance and for the dangerous driving offences. Worse still, you committed this offence today when under a suspended sentence order and while you had jumped bail for another offence.

33.  I have had regard to the cases submitted to me by both the prosecution and Mr Lo. Those cases are the Secretary for Justice v Ko Wai Kit, Paul CAAR12/2001 and HKSAR v Jim Chong Shing CACC186/2003 and HKSAR v Tang Chen Ming CACC227/2002. Those cases were, I can say, more serious than this. In Ko Wai Kit, the defendant was given a starting point of 3 years’ imprisonment and a 5-year driving ban, and Tang Chen Ming, 2½ years’ imprisonment and a 4-year driving ban, and Jim Chong Shing, 2½ years’ imprisonment and a 4-year driving ban.

34.  I accept that this case may not be as serious as the above cases. However, there was potential for such damage as was seen in Ko Wai Kit, though I accept this case was later at night, at a quieter time and on a highway and eventually in or close to an industrial area in Fanling.

35.  You have, though, demonstrated as in those cases a complete disregard to the safety of other road users, particularly that of persons in authority, which was the police officer you had deliberately ignored and even tried at some stages to cause a collision with.

36.  The maximum penalty for the offence of dangerous driving is 3 years’ imprisonment. It is of note that in 2001, Stock J noted then the inadequacy in the maximum term for dangerous driving. It was said there that the maximum permitted is a constraint which might be thought to be contrary to public interest. What sentence I can pass upon you in my view does not reflect the criminality involved by you.

37.  Defendant, please stand up. Defendant, in considering the sentences to be passed upon you, I have taken into account all the factors that I have mentioned and the mitigation that Mr Lo had said on your behalf. The only true mitigating factor is of course your plea of guilty.

38.  For Charge 1, the dangerous driving charge, I consider a starting point of 2 years’ imprisonment to be appropriate. This is, however, your third conviction for dangerous driving and I consider that and your bad driving record to be an aggravating factor and would increase that term by 3 months to 27 months’ imprisonment. I must, however, give you full credit for your plea of guilty and that term shall be reduced to one of 18 months’ imprisonment. For Charge 1, you shall also be disqualified from driving for a period of four years.

39.  For Charge 2, I take a starting point of 3 months’ imprisonment and reduce that term to one of 2 months’ imprisonment.

40.  For Charge 3, the same, 3 months’ imprisonment and reduce to 2 months’ imprisonment.

41.  For Charge 4, the driving whilst disqualified offence, I take a starting point of 9 months’ imprisonment and reduce that term to one of 6 months’ imprisonment. This is your first conviction for driving whilst disqualified. You shall be disqualified for this offence, for driving whilst disqualified, for 12 months.

42.  For Charge 5, you shall be sentenced to 3 months’ imprisonment, reduced to 2 months’ imprisonment. For Charge 5, this is your second conviction and you shall be disqualified for two years.

43.  In sentencing you, I must consider the principle of totality. I consider an appropriate total term to be one of 21 months’ imprisonment. I make an order that 3 months of Charge 4 is to run consecutive to that of Charge 1. All other charges are to run concurrent to each other.

44.  Turning to your disqualification. In view of your bad record, your blatant disregard to other road users and their safety, and blatant disregard to previous orders, I consider a lengthy disqualification should be imposed. The 12 months’ disqualification on Charge 4 is to run consecutive to that of Charge 1.

45.  One further matter is that when you committed this offence, you still had a suspended sentence hanging over your head and that suspended sentence shall be activated and that means you will serve a further 3 months’ imprisonment on top of this 21 months. And that is, just to be absolutely clear to you which one it is, that is the suspended sentence given to you in the case FL2551/2008 on 8 October 2008.

46.  That means you will serve a total term of 24 months’ imprisonment.