HKSAR v. YIP SING YEUNG

DCCC 510/2021

[2021] HKDC 1209

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 510 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four charges today:

(1)  firstly, dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance;

(2)  secondly, driving a motor vehicle without proper control under influence of a specified illicit drug, contrary to section 39J, Road Traffic Ordinance;

(3)  driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance; and

(4)  finally, using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks)  Ordinance.

2.  The facts are admitted and can be summarised as follows.

3.  In the evening of 16 May 2020, police operated a roadblock on the Ma On Shan Road.  Very early on 17 May, the defendant approached the roadblock driving a private car; it was a hire car apparently. Police indicated the defendant to stop.  The defendant initially slowed and stopped, but then veered away and accelerated rapidly.  The defendant fled towards Ma On Shan roundabout at high speed.  Police boarded their own vehicle and gave chase. 

4.  At the Hang Hong Street roundabout, the police found that the car the defendant was driving collided with a crash barrier at the roundabout and had been severely damaged.  The defendant together with the passenger of the vehicle was stopped as they fled from the scene.

5.  It was found that the defendant’s driving licence had expired on 23 November 2015, so defendant was an unlicensed driver at the time.  As the car was a hire car, the defendant was apparently an unapproved driver and not insured for the driving of that vehicle.  Consequently, that forms the basis of the 4^th charge.

6.  At the scene, the defendant failed the drug influence recognition observation test, later sent to a hospital for medical treatment.  With his consent, a blood sample was taken and the Government Chemist’s report showed the presence of methamphetamine detected in the blood.

7.  The car was examined.  No defects were found. 

8.  As far as the dangerous drug is concerned, the particulars are that the defendant failed to stop the car at the checking area, accelerated suddenly and disregarded the safety of other road users, and failed to control the car properly, thereby falling well below the standard expected of a competent, careful driver, or driving in such a way which would be obvious to a competent, careful driver that driving in that way would be dangerous.

9.  Defendant admits he was under the influence of methamphetamine at the time of driving.  He neither had a valid driving licence and the car was driven without third party insurance.

10.  Defendant’s antecedents show that he is now 44 years old.  He has a number of criminal records dating back to 1991 when he was originally placed on probation. 

11.  He has a number of driving offences in the past: a previous conviction of dangerous driving in 2012 when he was sentenced to 2 years’ imprisonment, disqualified for three years, and ordered to complete a driving improvement course; at the same time, also committed the offence of driving whilst disqualified and using a motor vehicle on a road against third party risks. 

12.  Defendant also has previous convictions for possession of dangerous drugs and also trafficking in dangerous drugs.  The defendant was released from prison on 4 September 2020 in relation to the previous cases.

13.  I am told in mitigation that the defendant had received schooling at F2 level.  He plans to marry his fiancée and they have a son aged 6.  Defendant had made contributions to his family out of his work.  I am told he is deeply remorseful.  He had consumed ‘Ice’ before the date of the offence, and he had in the past a valid driver licence.  He had applied for renewal of the driving licence before these offences.

14.  As far as the offence is concerned, it is said on his behalf that the traffic at the time was light; it was very early in the morning of 17 May.  There were no prolonged acts of dangerous driving and there were no injuries although there was damage to the vehicle.  The defendant’s decision to drive away was a momentary impulse to avoid the legal consequence as he did not have a driving licence with him.  There is no evidence of disobedience of any traffic signals.  Although the facts describe the defendant driving away at high speed, there is no evidence of what that speed was.

15.  I was referred to mitigation letters on behalf of the defendant and also details of charitable giving that the defendant has been involved in.

16.  The approach to sentence can be found in a number of cases.  The 1^st charge I am dealing with on this indictment is one of dangerous driving.  There is no actual tariff for the offence of dangerous driving.  However, because of the presence of a specified illicit drug in the defendant’s blood, the maximum sentence for the offence is increased by 50 per cent. In this case, it would be up to 4½ years’ imprisonment as opposed to 3 years’ imprisonment.

17.  As I have indicated, there is no tariff for the offence.  The appropriate sentence depends on the facts and circumstances of the accused of each case.  The most prominent factor for sentencing usually is to take into account the culpability of the driving misconduct, even though any harm caused is also important.  The general sentencing principle is one of deterrence, with the secondary purpose of educating the public as to the potential dangers to others involved in driving a motor vehicle and the social responsibility that rests on the shoulders of all drivers to drive safely and with due regard to others.

18.  As far as the 2^nd charge is concerned, that is a serious offence:  driving a motor vehicle without proper control under the influence of a specified illicit drug.  The maximum sentence for this offence is 3 years’ imprisonment and the fine is $25,000.  The disqualification also in respect of the 2^nd charge is a disqualification of not less than 5 years’ imprisonment. 

19.  I bear in mind these factors when determining the sentence to be imposed. 

20.  As far as the 1^st charge is concerned, the offence of dangerous driving, the defendant is a repeat offender; he has a poor driving record; the offence was committed in aggravating circumstances, in that there was an attempt to avoid the legal consequences of what he had done by escaping from the police; thirdly, at the time, the defendant was driving whilst under the influence of a drug.  These are all substantial aggravating factors and are serious in themselves. 

21.  Nevertheless, I also must taken into account that there is no injury to person, the defendant’s driving was for a fairly short distance and there is no evidence of any other disruption to other traffic, and the defendant’s direct driving could not be called “prolonged” in any circumstances. 

22.  Taking into account the presence of the drug and also the presence of a previous conviction for a similar offence, I am going to take a starting point of 30 months’ imprisonment on the 1^st charge, reduced to 20 months’ imprisonment for the defendant’s plea of guilty.  There will be a 5-year disqualification from driving as well.

23.  On the 2^nd charge, I will take a starting point of 27 months’ imprisonment, reduced to 18 months’ imprisonment having regard to the defendant’s plea of guilty.  There will be another 5-year disqualification from driving.

24.  On the 3^rd charge, there will be a fine of $1,500.

25.  And, on the 4^th charge, a sentence of 8 months’ imprisonment and a disqualification from driving for 3 years.

26.  These disqualifications from driving are made at the same time and so they will operate concurrently.  So it is a total of 5 years’ disqualification. 

27.  The defendant also has to take and complete a driving improvement course within 3 months of the expiry of the order for disqualification.

28.  I am going to order as regards totality that all sentences be served concurrently to a total of 20 months’ imprisonment.