HKSAR v. CHAN CHI KEUNG

DCCC 570/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 570 OF 2015

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REASONS FOR SENTENCE

1. Chan Chi Keung you have pleaded guilty to one charge of dangerous driving, contrary to section 37 of the Road Traffic Ordinance, Chapter 374 (charge 1); one charge of driving without a valid licence, contrary to section 42 of the Road Traffic Ordinance (charge 2); one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Chapter 272, (charge 3); one charge of using markings on a vehicle with intent to deceive, contrary to section 111 of the Road Traffic Ordinance (charge 4); and one charge of using markings and vehicle licence on a vehicle with intent to deceive, contrary to section 111 of the Road Traffic Ordinance (charge 5).

2. Full details of the offences are set out in the facts admitted by you today.  In summary at about 4:37 on the morning of the 9 April this year whilst performing mobile patrol in Tsim Sha Tsui the police spotted a private car parking at the lay-by outside No. 5 Hankow Road. 

3. The police approached the car and saw you sitting in the driver’s seat and acting suspiciously.  You lowered the car window and opened the car door as directed by Sgt 58832.  When Sgt 58832 asked you to remove the ignition key and get out of the car you suddenly started the engine and stepped on the accelerator to leave. 

4. Sgt 58832 grabbed hold of your shoulder and ran along with the car in an attempt to stop you from leaving.  You continued to accelerate causing Sgt 58832 to lose his balance and fall on the ground.  You then made good your escape.  Sgt 58832 sustained a 4cm laceration to his head and multiple abrasions to his face, hands and knees.  Part of the incident was captured on CCTV which has been played in court.

5. I am told the CCTV also shows that prior to the incident you purchased something from a shop with an octopus card.  This resulted in your identity being revealed and your subsequent arrest at home on the 28 April. 

6. In a video interview you told the police you accelerated away because you were a wanted person and felt scared.  I note in March last year you failed to attend trial in DCCC 66/2014 the case papers of which I have read and will refer to later (charge 1).

7. After your arrest you led the police to a car park in Clearwater Bay where you had parked the car.  The vehicle licence and the car displayed the registration mark LV 9687.  Police enquiries revealed that no vehicle was registered with the number LV 9687.  You told the police you used the number LV 9687 to conceal the identity of the car (charge 5).

8. In the video interview you also told the police the registration number of the car was in fact PD 6343.  You are the registered owner of PD 6343 but changed the number plates to MR 1488 to conceal the real identity of the car so that your identity as a wanted person would not be revealed.   CCTV records of the car park where you lived showed that the registration number displayed on the 9 April was in fact MR 1422 (charge 4).

9. Police enquiries also revealed that you were only the holder of a learner’s driving licence which had expired in March 2014 (charge 2) and that you had no valid third-party insurance (charge 3).

10. In passing sentence I have taken into account everything said on your behalf by Mr Ng together with your mitigation letter.  I take into account your young age and that you say you are remorseful for what you have done.

11. You cannot be given credit for a clear record having previous convictions, inter alia, for offences of dishonesty; drug offences and offences contrary to the Road Traffic Ordinance.

Dangerous driving (charge 1)

12. In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death.  These factors were revised in R v Cooksley [2003] RTR 32.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksleyas applied in the Secretary for Justice v Poon Wing Kay & another [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.

13. This principle was repeated in Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318 where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice (see paragraph 36 of the judgment).

Aggravating features

14. The aggravating features in this case include that you drove dangerously to avoid apprehension because you were at the time a wanted person having in March last year failed to attend trial in DCCC 66/2014; although you owned the car to conceal the real identity of the car so that your identity as a wanted person would not be revealed you displayed false number plates; you were driving without a valid licence the only licence you held being a learner’s licence which had expired and you had no third-party insurance.    

15. The degree of seriousness depends on the precise circumstances of the driving.  In Poon Wing Kay the court said that one major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or with a degree of recklessness.  Whilst the case is not as serious as Poon Wing Kay you showed a selfish disregard for the safety of Sgt 58832.  

16. Driving in this manner put Sgt 58832 at risk of serious injury, which risk was foreseeable.  Looking at the injuries as shown in the photographs submitted to court you are perhaps fortunate not to have been charged with the more serious offence of causing grievous bodily harm by dangerous driving.  I am told that fortunately Sgt 58832 has made a full recovery from his injuries. 

17. Mr Ng submits two cases for my consideration HKSAR v Lam Shun Choi CACC 402/2012 (where I was the sentencing judge) and HKSAR v Pang Ho Yin, Patrick CACC 283/2013.  I agree with Mr Ng that the facts in Lam Shun Choi,whilst similar are more serious in that there was a prolonged, persistent and deliberate course of bad driving.  I do not find the case of Pang Ho Yin, Patrick helpful the facts being very different, in particular that the driver there was driving under the influence of drugs.   

18. Both cases however did not concern someone who was a wanted person having failed to attend court.  Taking into account all the aggravating features together with the injuries sustained by Sgt 58832 I am satisfied the proper starting point after trial is one of 2 years imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 1 year and 4 months imprisonment.

Disqualification

19. There is mandatory disqualification for dangerous driving unless the court for special reasons decides not to make such an order.  I find no special reasons not to disqualify you.  I am satisfied taking into account the circumstances of the driving that a period of 3 years disqualification is appropriate which will mean that you will be still disqualified for a relatively short period after serving your sentence of imprisonment.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.

20. By virtue of section 72A (1A) of the Road Traffic Ordinance a court shall order a person convicted of dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Having never obtained a driving licence you must therefore first pass a test of competence to drive a motor vehicle before obtaining a probationary driving licence.  In these circumstances I am satisfied there are special reasons not to order you to attend and complete a driving improvement course.

Driving without a valid driving licence (charge 2)

21. The fact your learner’s driving licence had expired at the timemakes your driving without a licence particularly serious.  I am satisfied a starting point after trial of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months imprisonment. 

Using a vehicle without third-party insurance (charge 3)

22. Driving without insurance places all other road users at risk. This is more so considering that you have never passed a test of competence to drive a motor vehicle.  I am satisfied a starting point after trial of 6 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 4 months imprisonment. 

Disqualification

23. By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance unless the court finds special reasons there is also mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction.  Again I find no special reasons not to disqualify you.

24. Considering this is your second offence for using a vehicle without third party insurance (although you were not disqualified for the first offence the sentencing judge having seemingly overlooked this) I am satisfied a period of 18 months disqualification is appropriate.  You are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today.  Having taken into account that the dangerous driving was aggravated by the fact that you had no insurance I order the two disqualification periods to run concurrently.

Using markings on a vehicle with intent to deceive (charge 4)

25. I regard the use of false plates to avoid detection as a serious offence.  This is the third time you have been convicted of this offence.  I am satisfied a starting point of 12 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 8 months imprisonment. 

Using markings and vehicle licence on a vehicle with intent to deceive (charge 5)

26. The use of false plates and vehicle licence on this occasion was not only to conceal the real identity of the car so that your identity as a wanted person would not be revealed but also to prevent the police tracing a car displaying registration number MR 1422 so as to avoid detection for your dangerous driving on the 9 April.  I am satisfied a starting point of 12 months imprisonment is also appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 8 months imprisonment. 

Totality

27. Having taken into account driving without a valid licence; without third-party insurance and the use of false number plates as aggravating features of the dangerous driving I am satisfied the sentences for charges 1- 4 are to run concurrent.  The use of false plates and vehicle licence (charge 5) being used to prevent the police tracing a car displaying registration number MR 1422so as to avoid detection for the offences committed on the 9 April I am satisfied is a separate and distinct offence for which a consecutive sentence is appropriate.  Taking into account totality of sentence to be served I order 2 months consecutive and 6 months concurrent to charges 1-4.  This makes a total sentence to be served by you of 1 year and 6 months imprisonment which I am satisfied properly reflects your criminal culpability on the five charges.

Sentence

28.  In summary you are convicted and sentenced as follows:

CHARGE 1 – 1 YEAR AND 4 MONTHS IMPRISONMENT;

Disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years;

CHARGE 2 – 2 MONTHS IMPRISONMENT CONCURRENT TO CHARGE 1;

CHARGE 3 – 4 MONTHS IMPRISONMENT CONCURRENT TO CHARGES 1 & 2;

DISQUALIFIED FROM HOLDING OR OBTAINING A DRIVING LICENCE FOR ALL CLASSES OF VEHICLES FOR A PERIOD OF 18 MONTHS FROM TODAY CONCURRENT WITH THE DISQUALIFICATION ON CHARGE 1;

CHARGE 4 – 8 MONTHS IMPRISONMENT CONCURRENT TO CHARGES 1, 2 & 3;

CHARGE 5 – 8 MONTHS IMPRISONMENT WITH 2 MONTHS CONSECUTIVE AND 6 MONTHS CONCURRENT TO CHARGES 1, 2, 3 & 4.

DCCC 66/2014

29. You are presently serving a sentence of 28 months imprisonment imposed on the 11 June this year for offences of handling stolen goods; using a motor vehicle without third party insurance; breach of condition of learner’s driving licence; possession of dangerous drugs; possession of apparatus fit and intended for the inhalation of a dangerous drug; using markings on a vehicle with intent to deceive and failing to surrender to custody without reasonable excuse. 

30. All the offences were committed in October and November 2013 save for the failing to surrender to custody which was committed in March last year.  The offences are thereby entirely separate and distinct from the offences for which you have been sentenced today which were committed in April this year some 12-18 months later.  Whilst a court must still consider the overall total sentence to be served you cannot benefit from the fact you failed to attend your trial by reason of which you are still serving sentence for offences committed a considerable time ago. 

31. I am satisfied a wholly consecutive sentence is appropriate making a total sentence to be served by you of  3 years and 10 months imprisonment which I am satisfied properly reflects your criminal culpability in both cases.