HKSAR v. FU CHUN KIT

DCCC 1127/2024

[2025] HKDC 1189

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1127 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant was convicted upon his own plea on dangerous driving, drink and drug driving, contrary to sections 37(1), 39A(1) and 39K(1) of the Road Traffic Ordinance, Cap.374 (Charge 1 to 3).  

Facts

2.  On 30^th December 2023, at around 0533 hours Police Constable 25872 observed a private car registration number XE3047 (the Vehicle) being driven by the defendant erratically in the vicinity of Thompson Road and Johnston Road in Wanchai:

• taking a sharp turn in contravention of a traffic sign marked “Give way” when he cut into Johnston Road from Thompson Road,

• crossing a double white line, then driving westbound against the traffic on Johnston Road, and then

• taking a sharp right turn into Mallory Street in contravention of the “No Entry” sign on that street.

3.  The defendant stopped the Vehicle at Mallory Street, got out from the driver seat and got back into the Vehicle via the rear offside passenger door.  Police went up to for investigation, from the defendant’s demeanour, he was suspected to have been drink driving.  Additional support was called, the defendant fled, two officers chased and subdued him.  He was then escorted back to the Vehicle.

4.  A breath test conducted at the scene on the defendant, the result was positive.

5.  The subsequent breath and blood tests conducted found the defendant to have 35 micrograms of alcohol in 100 milliliters of breath, exceeding the prescribed limit of 22 micrograms and that he had 0.02 micrograms of 3,40methylenedioxymethamphetamine per millilitre of blood in his system, a specified illicit drug.

6.  The defendant drove the Vehicle on a road dangerously with 3 passengers on board while the proportion of alcohol in his breath exceeding the prescribed limit and reached tier 2 of drink driving and with a concentration of a specified illicit drug in his blood.

Mitigation

7.  The defendant aged 31, married with two children (aged 5 and 7).  He was on bail until he was convicted and sentenced to 30 months’ imprisonment in DCCC 667/2022.  He lived with his family prior his remand.

8.  The defendant has 8 previous conviction records with 17 counts, mostly related to triad society, violence and dangerous drugs.  He was last convicted on 18 July 2024 for trafficking in dangerous drugs and a numbers of triad society related offences committed in 2017/2018, of which he was sentenced to a total of 30 months imprisonment (DCCC 667/2022).  He committed the present case while on court bail.

9.  The defendant first obtained his driver driving licence on 28 March 2017, since then he had 3 fixed penalty, 5 traffic convictions (including two careless driving and one dangerous driving) and completed two driving improvement courses.  His last conviction of dangerous driving was on 3 March 2023, of which he was disqualified for 6 months and to attend a driving improvement course of which he completed on 13 September 2023. 

10.  The defence pray for an overall starting point of no more than 18 months’ imprisonment for the traffic offences and allow further discount for the fact that he is serving a term of 30 months for another case.

Sentence

11.  Any person who commits dangerous driving is liable on conviction upon indictment to imprisonment for 3 years; and unless there are special reasons:

• be disqualified in the case of a first conviction, for a period of not less than 6 months and in the case of a second or subsequent conviction, for a period of not less than 2 years, and

• to attend and complete a driving improvement course under section 72A(1A).

And by section(2D), if the offence is committed in circumstances of aggravation, the maximum fine and term of imprisonment and the minimum disqualification periods, are each increased by 50%, in the present case (drug driving), the maximum term of imprisonment would be 4.5 years and the minimum disqualification period be 3 years.

12.  Any person who commits drink driving is liable on conviction upon indictment to imprisonment for 3 years, and unless there are special reasons:

• In case of tier 2 drink driving, be disqualified in the case of a first conviction, for a period of not less than 12 months and in the case of a second or subsequent conviction, for a period of not less than 3 years, and

• to attend and complete a driving improvement course under section 72A(1A) .

13.  Any person who commits drug driving is liable on conviction upon indictment to imprisonment for 3 years, and unless there are special reasons:

• be disqualified in the case of a first conviction, for a period of not less than 2 years and in the case of a second or subsequent conviction, for a period of not less than 5years, and

• to attend and complete a driving improvement course under section 72A(1A) .

14.  Where the court has ordered the person to attend and complete a driving improvement course under section 72A(1A), the person is to be disqualified for the period ordered or until the person has attended and completed the course at his or her own cost, whichever is later.

15.  In Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771, a case of causing grievous bodily harm by dangerous driving, the sentencing principle however applicable in dangerous driving.  The Court of Appeal stated that the dominant factor to be considered in sentencing is the defendant’s culpability, which involves two related assessments, the objective dangerousness of the defendant’s driving and the moral culpability of the defendant.  Bearing this in mind, in assessing the culpability of the defendant, the court should consider the potential harm imposed to the passengers on board of the Vehicle. 

16.  The Court of Appeal in Chu Wing Yin Christine also listed out a number of aggravating factors relevant to the consideration of culpability, some of which is applicable to the present case: the extent of intoxication or of substance abuse; whether there was erratic driving; and the length of the journey during which others were exposed to risk.

17.  The Court of Appeal in Secretary for Justice v Chan Hon Hoi CAAR 8/2010, said, at page 814, that:-

“23. Vehicles, in the hands of irresponsible drivers, can be lethal weapons as demonstrated by the catastrophic consequences of serious traffic accidents.

24. Driving is a very complex skill determined by changes in physical, emotional and mental conditions all of which can be impaired by the use of drugs. Drugs also impair motor coordination skills and judgment, rendering a driver incapable of driving responsibly and safely. Driving under the influence of drugs is a clear danger on the roads and must be deterred in order to protect the public at large.

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27. Drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence.”

18.  The defence refers to The Secretary for Justice and Ko Wai Kit, Paul CAAR 12/2002, in that case, at about 5:30pm the respondent under influence of “ICE” drove a van erratically in Kowloon.   He “suddenly made an unlawful ‘U-turn’, crossing double solid white lines in Jordan Valley Road, Ngau Tau Kok, Kowloon. … disobeyed the Police command to stop, and drove off.  In the course of a crazed journey from Jordan Valley Road to Prince Edward Road East, Prince Edward Road West, Waterloo Road, Chatham Road, Austin Road and Canton Road, he committed one traffic offence after another, jumped red lights, collided with motor vehicles, and with motorcycles, injuring a police officer and two civilians, failed to obey police commands to stop.”  The Court of Appeal considered this was a very worst case, in adopting the maximum term of 3 years imprisonment as the starting point, made a comment of possible inadequacy in the maximum term.

19.  Ko Wai Kit, Paul is a case before 2010, the then maximum sentence for dangerous driving was 3 years in all circumstances.  However, since the introduction of section 2D, when the offence is committed in circumstances of aggravation (i.e. tier 3 drink driving and drug driving), the maximum fine and term of imprisonment, the minimum disqualification periods, are each increased by 50%.

20.  The respondent in Ko Wai Kit, Paul had a clear criminal and traffic record. The defendant before me has a poor traffic record; he only had his driving licence back less than 3 months before he committed the present case.

21.  The defendant drove the Vehicle on a road dangerously with 3 passengers on board while the proportion of alcohol in his breath exceeding the prescribed limit and reached tier 2 of drink driving and with a concentration of a specified illicit drug (MDMA) in his blood. He was driving erratically on the road in early hours, though within a short distance, in contravention of three traffic signs and against the traffic.  But I agree the present case is not as serious as  Ko Wai Kit, Paul.

22.  The defendant had an arrangement to pick up D2 at Mallory Street.  He has been to Mallory Street about half hour before the interception, the Vehicle was then parked at the exact location, it should be obvious to him that there was a “No Entry sign”.  This is not a case of momentary lapse of attention or error in judgement; he has driven with selfish disregard for the safety of other road users or of his passengers.

23.  Having consider all the relevant circumstances, I am of the view that the appropriate starting point for dangerous driving is one of 18 months imprisonment, and the appropriate starting point for drink driving and drug driving to be 6 months and 12 months respectively.   The defendant entitled to 1/3 discount for his plea, I do not consider there to be any further mitigating factor.  Since I have taken into account his drink and drug driving in considering the culpability of dangerous driving, the term of the traffic offences are to run concurrently.  

24.  The defence urges me to consider the “totality principle” and to allow certain discount for the fact that he is serving a term of 30 months’ imprisonment.  The defence refers to HKSAR v Lee Ming Yin CACC 332/2010, in that case, the Court of Appeal reiterated that “when dealing with an offender who has been sentenced to imprisonment by another court for another offence, must have regard to the totality of all the terms of imprisonment to which the offender will become subject”.

25.  DCCC 667/2022 was committed in 2017/2018.  The traffic offences in the present case were committed while D was on court bail for DCCC 667/2022, this is an aggravating factor but I have not taken this into account in assessing the starting point for the traffic offences.  Further, the two cases are of different nature.  I have the totality principle in mind but I consider the sentence of the present case should run consecutive to that of DCCC 667/2022.

26.  The defence has no submission on disqualification.  Dangerous driving is a relevant scheduled offence contemplated by section 69A of the Ordinance.  And this is the defendant’s second conviction of a relevant scheduled offence.  Pursuant to section 69A, where a court:

• convicts a person of a relevant scheduled offence, and

• the conviction is the person’s second or subsequent conviction of a relevant scheduled offence, and

• the court sentences the person to undergo a term of imprisonment and

• be disqualified for a fixed period,

the court must direct the disqualification period is not to start to run until the person finishes serving the term of imprisonment, unless there are special reasons not to make such a direction.

27.  The defendant had his first conviction on dangerous driving in March 2023, he was disqualified for 6 months and completed a driving improvement course in the last 3 months of his disqualification period.  Yet he committed the present traffic offences after he had his driving licence back less than 3 months. There is simply no reason not to impose disqualification orders and direct the order to start to run until the defendant finishes serving his term of imprisonment as stipulated by the provisions.

28.  The defendant is to be disqualified for 3 years, 12 months and 2 years for dangerous driving, drink driving and drug driving respectively.  And the disqualification period is not to start to run until he finishes serving his term of imprisonment in DCCC 667/2022 and the present case.

29.  The defendant is to attend and complete a driving improvement course on his own costs.  However, I consider one course should be enough to serve the purpose.  That being the case, I would not repeat the same for the drink and drug driving charges. 

Order

The term of imprisonment to run concurrently with each other, making a total of 12 months, but consecutive to that of DCCC 667/2022.

The defendant is to attend and complete the driving improvement course within the last 3 months of the disqualification period.

The disqualification period of each charge is not to start to run until the defendant finishes serving the term of imprisonment, he is disqualified for the period ordered or until he has attended and completed the course at his own cost, whichever is later.

The defendant is disqualified from holding or obtaining a driving licence during the disqualification period.

Lastly, the defendant is warned driving while disqualified is a serious offence and liable for imprisonment. He should not return to the driver seat before he obtains a valid driving licence.