A A
B DCCC389/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 389 OF 2012
E E
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F HKSAR F
v
G G
IP Cheong-hing, Michael
H ---------------------- H
I Before: Deputy District Judge A. Kwok I
J Date: 28 June 2012 J
Present: Mr Sharman Lam, SPP of the Department of Justice, for
K K
HKSAR
L Mr Keith Fung, instructed by Cheung & Liu for the L
Defendant
M M
Offence: (1) Dangerous driving (危險駕駛)
N N
(2)-(3) Assaulting a police officer in the due execution of his
O duty (襲擊在正當執行職務的警務人員) O
(4) Resisting a police officer acting in the execution of his
P P
duty (抗拒執行職責的警務人員)
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(5) Possession of a dangerous drug (管有危險藥物)
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Reasons for Sentence
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B B
The Charge
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D
1. The defendant appeared before me on 14 June 2012 and D
pleaded guilty to a total of 5 charges: one charge of “dangerous driving”,
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contrary to section 37(1) of the Road Traffic Ordinance, Cap 374(Charge
F 1); two charges of “assaulting a police officer in the due execution of his F
duty, contrary to section 36(b) of the Offences against the Person
G G
Ordinance, Cap 212 (Charge 2 & 3); one charge of “resisting a police
H officer acting in the due execution of his duty” contrary to section 63 of the H
Police Force Ordinance, Cap 232 (Charge 4) and finally, one charge of
I I
“possession of a dangerous drug”, contrary to section 8(1)(a) and (2) of the
J Dangerous Drugs Ordinance (Charge 5). J
K K
The Facts
L L
2. I would simply adopt the entirety of the summary of facts
M M
which was admitted by the defendant before he was duly convicted of all
N the charges:- N
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“1. On 11-3-2012, police officers including senior inspector
David Neil Bennett (“PW1”); Police Constable 5185 LAU
P Chun-ning, Johnny (“PW2”); Acting Sergeant 49950 MA P
Wai-lun (“PW3”) and Police Constable 60 (“PW4”) were
Q
patrolling in an unmarked police vehicle (“the Police Vehicle”)
Q
in the Yuen Long area. PW4 was the driver. It was raining. The
road surface was wet.
R R
2. At around 5:59 a.m., when they reached the road
junction of Kung Um Road and Kiu Hing Road, they saw a
S S
private car bearing registration mark MZ 6897 (“V”) driven by
the Defendant failed to stop at the red signal of a set of
T temporary traffic lights at the said road junction. The Police T
Vehicle followed V by keeping a distance of about 20 metres.
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V V
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B 3. Along Kung Um Road, V cut across the continuous B
double white line road markings to overtake a private car LP
C 6966. V gave no traffic signal before the overtaking. The C
overtaking caused LP 6966 to brake suddenly to avoid collision.
D 4. Later, along Kung Um Road, V cut across the D
continuous double white line road markings to overtake a public
E
light bus LX 2049. The overtaking caused LX 2049 to brake
E
suddenly to avoid collision.
F 5. V was travelling at a speed of approximately 100 km/hr F
where the speed limit was 50 km/hr. Upon reaching Kung Um
Road near lamppost BD 2150, V travelled through another set of
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red traffic lights.
H 6. The Police Vehicle kept on following V. Upon reaching H
Ha Ko Po Tsuen on Tam Tin Road, PW4 activated the siren, and
used the public announcement system to indicate their police
I identity and to direct the driver of V to slow down and to stop. V I
slowed down to about 15 km/hr. The Police Vehicle and V
J travelled parallel to each other. PW1 saw the Defendant’s face. J
There was no one else on board of V. Suddenly, V accelerated.
The Police Vehicle gave chase.
K K
7. V entered Kam Tin Bypass and travelled in the middle of
the carriageway, straddling both lanes. As the chase continued,
L L
V entered Castle Peak Road in the wrong direction and travelled
against traffic flow for approximately 0.3 km, forcing a public
M light bus to brake and swerve out of the way to avoid a head-on M
collision.
N 8. V then cut back into the correct section of the N
carriageway and entered San Tam Road, towards Fairview Park.
O V’s speed was approximately 110 km/hr where the speed limit O
was 50 km/hr. During the chase, PW1 saw the Defendant threw
items out of V’s window in 3 different occasions. Those items
P could not be recovered. P
Q
9. Upon reaching Fairview Park Roundabout, V exited
Q
back onto the southbound section of San Tin Highway, cutting
across the path of a private car intending to enter the southbound
R slip road, forcing the private car to brake hard and swerve to R
avoid a collision. V then travelled along the San Tin Highway,
at a speed of approximately 140 km/hr where the speed limit
S S
was 100 km/hr.
T 10. V continued into Yuen Long Road and Pok Oi T
Interchange, taking the Shap Pat Heung exit heading towards
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V V
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Tai Kei Leng Road. V then entered Tai Shu Ha Road East and
B then Tai Shu Ha Road West. On reaching a section of the road B
near lamppost FA 9088, V travelled through the red signal of a
C set of temporary traffic lights. V continued along Tai Shu Ha C
Road West and on reaching lamppost BD 2445, V travelled
through the red signal of another set of temporary traffic lights.
D D
11. Whilst travelling along Tai Tong Road, V cut across
E
the continuous double white line road markings to overtake a
E
private car and a minibus. V finally entered an unnamed road
leading into Shui Tsiu San Tsuen. V overtook a taxi by making
F a sharp cut in front of it. The taxi braked hard. They almost F
collided with each other.
G G
12. V finally travelled into an open ground and crashed
into the metal railings in the area. The Defendant jumped out of
H V and ran away towards Shui Tsiu San Tsuen. V somehow kept H
travelling forward even after the Defendant had jumped out of it.
V finally stopped after colliding with other metal railings in the
I area. No one was found inside V. I
J 13. Upon seeing the Defendant jumped out of V, PW2 J
and PW3 immediately alighted from the Police Vehicle and
chased the Defendant into the village. Near Ground Floor,
K No.63A, Shui Tsiu San Tsuen, Shap Pat Heung, Yuen Long, K
New Territories, in Hong Kong, PW2 managed to grab the
Defendant’s shoulder, declared his police identity, and told the
L L
Defendant not to run. In return, the Defendant elbowed PW2 in
the chest and caused PW2 to fall towards the wall. At this
M juncture, the Defendant picked up a soft drink glass bottle and M
threw it at PW3 who was chasing him. The bottle hit PW3’s
chest. The bottle broke into pieces.
N N
14. The chase continued. At the end, the Defendant lost
O his balance whilst running, and was subdued by PW2 and PW3 O
near Ground Floor, No.115A, Shui Tsiu San Tsuen, Shap Pat
Heung, Yuen Long, New Territories, in Hong Kong. PW2
P pressed the Defendant onto the ground, but he resisted PW2 by P
struggling vigorously and yelling. He ignored all the repeated
Q
verbal warnings.
Q
15. Upon body search, the police found from the
R Defendant’s trousers pockets a mobile phone and a piece of R
paper containing traces of a powder containing ketamine. The
Defendant denied possession of the latter. Later, reinforcement
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arrived. PC7021 declared arrest on the Defendant. Under
caution, the Defendant said he had only drunk a little bit of
T alcohol. T
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16. Breath test showed that there were 18 micrograms
B of alcohol in 100 ml of the Defendant’s breath sample. It was B
within the prescribed statutory limit.
C C
17. The Defendant refused to sign on the record of
interview which was a post-record of what he said under
D caution. D
E
18. PW2 was treated in a hospital. PW2 sustained
E
tenderness and redness on his chest wall. He was discharged
from the hospital after treatment. Sick leave for 2 days was
F granted. F
19. PW3 was treated in a hospital. PW3 sustained
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tenderness on his left chest wall, his left elbow, and his left knee.
He also sustained abrasion on his left face. He was discharged
H from the hospital after treatment. Sick leave for 1 day was H
granted.
I 20. The total distance of the “car chase” was measured I
to be around 18.7 kilometres.”
J J
K Mitigation K
L L
3. The defendant is now aged 25. He is single and was born in
M Hong Kong. Before he was incarcerated, he was cohabitated with his M
girlfriend aged 23 and they have a 5 year old son. The cohabitant is a
N N
housewife and the family has been living in a village house in Yuen Long
O for the last four years. According to the Drug Addiction Treatment Centre O
(“DATC”) Report which I have called for the defendant, he dropped out of
P P
school without completing Form 2. Thereafter, he did not receive any
Q further education or vocational training. After leaving school, he started Q
working as a delivery worker. Thereafter, he had also worked as a salon
R R
assistant and a labourer in a re-cycling company for earning his living.
S Prior to his present jail custody, he worked as a pet groomer with a S
monthly income of around $10,000.
T T
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B B
4. The defendant had a total of 7 previous criminal convictions,
C
including “theft”, “robbery”, and also similar records of “possession of C
D
dangerous drugs”, “assaulting a police officer” and “dangerous driving”. D
He first transgressed the law in 2001, committing the offence of “theft” for
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which he was placed on probation for 12 months. The Probation Order was
F later extended to 18 months and also 21 months because of the subsequent F
offences of “robbery” in 2002 and also the breach of the Probation Order in
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2003. He was later sentenced to the Detention Centre instead in 2004 at the
H age of 17 for another charge of “possession of dangerous drugs”. As for his H
last conviction, he was sentenced to 16 months’ imprisonment and
I I
disqualified of driving for 18 months very recently on 5 June 2012 for the
J offence of “dangerous driving” (DCCC 66/2012 refers), together with the J
activated 6 weeks’ suspended sentence for another case of “possession of
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dangerous drugs” (TMCC 1975/2011 refers), making a total of 16 months
L and 6 weeks’ imprisonment. As for traffic records, the defendant first L
obtained his driving license in 2008. Apart from the last conviction of
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“dangerous driving”, he has no other traffic conviction but over the years,
N he was fined in numerous occasions for fixed penalty payments for minor N
traffic offences such as speeding and failing to comply with traffic signs.
O O
P 5. In mitigation, Mr Fung acting for the defendant submitted that P
the defendant did not have an appalling driving record and he was very
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remorseful and pleaded guilty at the first opportunity. The defendant has
R also written a letter to the court expressing his regrets and how much he R
was caring for his girlfriend and their son. The defendant begged the court
S S
to treat him leniently so that he could be discharged sooner to take care of
T the family. Mr Fung properly reminded the court that the defendant was T
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only sentenced a few weeks ago in the District Court and urged me to take
B B
into account his current sentence and apply the principle of totality in
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considering the total sentences for these two cases.
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Sentencing Considerations
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Charge 1
F F
6. In SJ v Wong Wai Hung CAAR 7/2010 (unreported), the
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Court of Appeal noted that,
H H
“21. In recent years, the courts have repeatedly emphasized
I the importance of having in mind a deterrent effect when I
sentencing in cases involving dangerous driving.
J 22. … Culpability is the determining factor.” J
K K
7. In SJ v Liu Kwok Chun CACC 3/2009, the Court of Appeal
L recognized that: L
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“the defendant’s culpability should be the basis of the
sentencing exercise and on this basis, an appropriate sentence is
N to be determined”. N
O 8. In para 37 of the same case, it was held that:- O
P P
“In assessing the degree of culpability there are two extreme
situations. The first is where the event occurred because of a
Q momentary error of judgment. The other is the most serious one Q
in that there is a selfish disregard by the driver for the safety of
R other road users or of his passengers or with a degree of R
recklessness.”
S S
T T
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A A
The defendant’s Culpability in Charge 1
B B
C C
9. The list of what the court considered to be aggravating factors
D
in the English case of R v Cooksley [2004] 1 Cr App R (S) 1,11 included a D
number of matters such as the consumption of drugs or alcohol, excessive
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speed, racing, competitive driving, showing off, a disregard of warnings
F from fellow passengers, a prolonged persistent and deliberate course of F
very bad driving or aggressive driving, for example: persistent
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inappropriate attempts to overtake or cutting in after overtaking, using a
H mobile phone, driving when suffering from a known medical condition; H
other offences committed at the same time, for example: driving without
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holding a driving licence, driving whilst disqualified, driving without
J insurance, and driving while a learner without supervision. J
K K
10. In this case, it is clear that the manner of driving exhibited by
L the defendant falls into the more serious category of “ a selfish disregard L
by the driver for the safety of other road users with a degree of
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recklessness.” Many of the aggravating features as stated in Cooksley were
N also present in our case such as a prolonged persistent (18.7 km pursuit) N
and deliberated course of very bad driving (failing to obey traffic signs and
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stop before red signals) or aggressive driving (speeding at 140 km/hr,
P overtaking by cutting across the continuous double white line and even P
travelling against traffic flow for 0.3 km) and a total disregard of warnings
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from the police officers indicating the defendant to pull over and stop his
R vehicle. R
S S
11. This is a case where the defendant had obviously appreciate
T the risk of his action which might cause danger to the police officers giving T
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chase and the other road users, but consciously and irresponsibly went on
B B
to take it. The defendant had blatantly disregarded the safety and well
C C
being of the police officers and the other road users and had endangered
D
their lives. D
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12. All the prevailing circumstances of the case showed that the
F manner of the defendant’s driving was obviously dangerous. It is only F
fortunate that no other vehicle was damaged and road users were injured as
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a result.
H H
13. Furthermore, the defendant committed the offences in the
I I
present case while he was on bail for another “dangerous driving” case of
J DCCC 66/2012 which was committed by him only some 4 months before J
the present offence, showing a total contempt for the legal system that is
K K
most worrying.
L L
The Sentence
M M
N 14. The maximum sentence for dangerous driving is a fine of N
$25,000 and imprisonment for 3 years. There is also a minimum
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disqualification period of 2 years, this being a 2 nd conviction for dangerous
P driving and a mandatory requirement for an order for the defendant to P
attend and complete a driving improvement course.
Q Q
R 15. There are no sentencing guidelines but in sentencing I have R
considered the following authorities:-
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The Secretary for Justice v Ko Wai Kit, Paul, CAAR 12/2001
B B
C C
16. The respondent, aged 22, was sentenced after trial to 12
D
months’ imprisonment for one charge of dangerous driving and 1 weeks’ D
imprisonment for resisting Police officers. The Secretary for Justice
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applied to review the sentence. The respondent’s driving was described by
F the Court as a shocking case of dangerous driving that clearly falls within F
that band that can be called the worst of its type. The Court described the
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course of the driving as follows:
H H
“6. A closer account reveals that after the respondent drove off
I from Jordan Valley Road, he steered his van the wrong way I
against traffic on a one way road, and failed then to stop at red
traffic signals. He was pursued. At the junction of On Wah
J Street and Chun Wah Road, the van struck a petrol tanker. But J
the respondent drove on. He struck two more private cars on
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Princess Edward Road East while passing through a gap
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between them. Not surprisingly, both vehicles were damaged.
L 7. A Police Emergency Unit vehicle, car no. 52, tried to block L
the traffic on Price Edward Road East, but it, too, was hit by the
van, and was as a result rammed into the concrete barrier of a
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flyover. The driver of car no. 52, a police officer, was injured
and the vehicle damaged. Alerted to the fact that the
N respondent's van was approaching Prince Edward Road West, N
another police officer stopped the traffic near the junction of
Prince Edward Road West and La Salle Road. The respondent
O managed to evade the block by driving through a gap but not O
before causing the officer to fear that he was to be run down by
P the respondent, so much so that he drew his revolver and fired at P
the van.
Q 8. On the respondent went, driving as dangerously as before. Q
The van turned left from Prince Edward Road to Waterloo Road,
heading towards Princess Margaret Road. When it reached
R R
Chatham Road near Austin Road, he drove the van across the
hard shoulder to the opposite lane and then travelled against the
S flow of oncoming traffic. He then turned right into Austin Road, S
heading towards Canton Road. When the van reached
Kimberley Road in Tsimshatsui, it collided with a taxi and three
T private vehicles, causing injuries to one driver and to a T
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passenger. The van then reversed and damaged a lorry and three
B police motorcycles. The journey was finally at its end.” B
C C
17. One of the grounds of mitigation put forward was that the
D respondent drove as he did because he was driving under the influence of D
‘ice’. The Court of Appeal considered that it was not a mitigating factor but
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an aggravating one.
F F
18. The Court considered that the manner of the respondent’s
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driving called for a 3 year starting point. They allowed the Application for
H Review and set aside the sentences imposed by the judge, substituting for H
the dangerous driving charge a sentence of two years' imprisonment and a
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sentence for the resisting police officer charge of 12 months' imprisonment
J to run consecutively, resulting in a total of three years' imprisonment. The J
Court also substituted the original period of disqualification of 2 years with
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one of 5 years, on the ground that the respondent ‘has demonstrably shown
L himself to be a menace to pedestrians, and to the driving public and their L
passengers.’
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N 19. The Court of Appeal further opined that in cases such as that N
one, the maximum sentence was inadequate to reflect the severity of the
O O
crime and wondered whether the legislature had in mind cases such as
P theirs. P
Q Q
HKSAR v Jim Chong Shing, CACC 186/2003
R R
S
20. The Police conducted an anti-illegal road racing operation at S
Tuen Mun Road, New Territories. A roadblock was set up at Tuen Mun
T T
Road near the Tuen Mun town centre.
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21. The appellant was one of 5 private vehicles that approached
B B
the road black at high speed shortly after 3am. Upon seeing the road block,
C C
all 5 cars made U-turns and travelled against the traffic at high speed.
D
Meanwhile, 2 Police vans had been driven in place to block off the road D
that the cars came from. The appellant’s vehicle was the first to arrive at
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the Police vans. It did not stop and collided with the vans, but managed to
F pass through. F
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22. The appellant continued to drive his car against on-coming
H traffic. A Police officer on motorcycle gave chase. There was one point H
when both the appellant and the police had stopped their respective
I I
vehicles and were side by side on the road. The Police officer ordered the
J driver to turn off the car’s engine. On hearing this, the appellant suddenly J
revered his vehicle into another road. The Police officer continued to chase
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after the car but failed to catch up and eventually lost sight of it. The chase
L lasted for more than 10 minutes. The appellant was later identified by the L
Police officer in an identification parade.
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N 23. The learned trial judge adopted a 2½ years’ imprisonment N
starting point in relation to the dangerous driving charge. The Court of
O O
Appeal said:
P P
“27. There is no doubt that this was an appalling case of
Q dangerous driving. In sentencing the Applicant, the Judge Q
considered all the relevant circumstances, including the
disobeying of the police's commands to stop, the driving at a
R R
high speed against the flow of on-coming traffic, the speeding at
up to 80 kmh in excess of the speed limit for a period of 10
S minutes and the overtaking a vehicle by crossing double white S
lines.
28. The Judge was aware of the Applicant's previous
T convictions. There are many, and in particular, they contain 2 T
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charges of dangerous driving in 1979, 1 charge of dangerous
B driving in 1981, 1 charge of reckless driving in 1988, motor B
racing and reckless driving in 1994, speeding and dangerous
C driving in 2003. C
29. The Judge did not equate this case with Secretary for Justice
v Ko Wai-kit [2001] 3 HKLRD 751 in which, for a similar series
D of offences, a starting point of 3 years' imprisonment was taken. D
The Applicant in that case had committed his offences at a busy
E
time of day - 5.30 p.m. and had damaged a number of other
E
vehicles and caused injuries to a number of people. In this case
the offences were committed at night when the roads were not
F busy and the damage was limited to 2 police vehicles. However, F
the potential for damage on a scale approaching that in Ko Wai
Kit was there and the Applicant demonstrated exactly the same
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disregard for the safety of other road users and the sanctity of
other peoples' property as the offender in Ko Wai Kit did. The
H Judge adequately reflected the factual difference between the H
two cases by taking a lower starting point of 2 1/2 years'
imprisonment for the dangerous driving offence.”
I I
J
The imprisonment term J
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24. By comparison, the manner of driving in present case is
L nearly as bad as the above two cases except that no vehicle was damaged L
and no person was injured. Moreover, the defendant did not have an
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appalling driving record such as the applicant Jim Chong Shing. I therefore
N consider that a lower starting point of 2 years’ imprisonment is appropriate N
but because it was committed whilst on bail which was just granted by the
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District Court on 6 February 2012, the starting point has to be increased by
P 6 months to reflect the serious contempt for the court by the defendant. The P
sentence is reduced by 1/3 on account of his plea which is about the only
Q Q
mitigating factor. The sentence on Charge 1 is therefore 20 months’
R imprisonment. R
S S
T T
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Disqualification
B B
C C
25. In DCCC 66/2012, the defendant was already disqualified
D
from driving for 18 months, to be commenced at the conclusion of the D
imprisonment sentence which is a total of 16 months and 6 weeks. It
E E
should be noted however that s 69A of the Road Traffic Ordinance only
F applies if it is the defendant’s second or subsequent conviction of a F
relevant scheduled offence (s 69A (1)(b) refers). Prior to the conviction on
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5 June 2012, it appears that the defendant was not convicted of any the
H same or different relevant scheduled offence. The effect is if the start of the H
disqualification is to commence normally on the date of his conviction,
I I
most, if not all, of the period of disqualification would merge into the term
J of his imprisonment, as not only such disqualification period was too short J
but would not have any actual effect. The Court of Appeal has already
K K
considered that such kind of a disqualification order would be considered
L as wrong in principle in SJ v Hung Ling Kwok CAAR 9/2007. L
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26. Having taken into consideration of the whole circumstances
N of the case and the sentencing principle, this court disqualifies the N
defendant from holding or obtaining a driving license for all classes of
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vehicles for a period of 40 months.
P P
27. Since the new law requiring that the period of disqualification
Q Q
should commence upon the term of imprisonment has been served had
R already came into effect on 17 December 2010 before the present case, and R
this being already the second dangerous driving conviction within the last
S S
5 years, the disqualification order that I just imposed is to take effect upon
T the defendant’s serving of the term of imprisonment. T
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A A
B B
Driving Improvement Course
C C
D
28. Once a person is convicted of the relevant offences which D
include dangerous driving, it is mandatory to order the person to attend
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driving improvement course unless the court for special reasons decides
F not to make such an order. I can find no special reason for not ordering the F
defendant to attend a driving improvement course and he is to attend and
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complete such a course at his own expense within the last 3 months before
H the expiry of the disqualification order. Failing to comply with such an H
order is an offence and the maximum sentence is one of 2 months
I I
imprisonment (Section 72A of Road Traffic Ordinance).
J J
Charge 2 & 3
K K
L 29. The maximum imprisonment term for “ assaulting a police L
officer in the due execution of his duty” contrary to s 36(b) of the Offences
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against the Person Ordinance, Cap 212 is 2 years’ imprisonment.
N N
30. The assault by the defendant on two police officers is the
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whole series of action he had taken as he jumped out from the vehicle after
P colliding with some metal railings. Charge 2 took the form of elbowing the P
chest wall of PW2 whilst Charge 3 involved the more serious of throwing a
Q Q
glass soft drink bottle onto the chest of PW3 who was chasing him. It
R should also be noted that this was not the first time the defendant R
committed this type of offence. I find that given the manner of the assault,
S S
a term of imprisonment is appropriate in order to protect the well being of
T our police officers during their execution of duties. I will adopt a starting T
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A A
point of 9 months’ imprisonment for Charge 2 and 12 months’
B B
imprisonment for Charge 3, reducing it to 6 months and 8 months
C
respectively on each charge as a result of the defendant’s plea of guilty. C
D D
Charge 4
E E
F 31. As this is only a “resisting a police officer” offence which is F
relatively minor than the two assaulting police charges and the offence
G G
took the form of struggling vigorously and yelling to PW2 who was trying
H to subdue the defendant and pressed him onto the ground, the proper H
starting point should be 3 months’ imprisonment which is reduced to 2
I I
months for the plea of guilty.
J J
Charge 5
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L 32. Finally, the possession of traces of powder containing L
ketamine by the defendant is a separate and distinct offence. According to
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the DATC report, the defendant first started to abuse cannabis and
N ketamine in 2001. He was sentenced to Detention Centre and was given a N
suspended sentence for his last “possession of dangerous drugs” offence.
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However, the report confirmed that he is not a drug dependant and is not
P suitable for admission to the DATC. Although the quantities involved for P
this offence is very small, in light of his previous similar records, I consider
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a starting point of at least 6 months’ imprisonment is appropriate in order
R to have a deterrent effect on him. The sentence is reduced to 4 months to R
reflect his plea.
S S
T T
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A A
Totality of Sentences
B B
C C
33. The principle of totality requires the court to adjust the
D
sentences for all the above charges. D
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34. I order that the sentences on Charge 1 and Charge 5 to be
F served wholly consecutively, ie 24 months as they are entirely separate and F
distinct offences.
G G
H 35. I order that only 4 months of Charge 2 to be served H
consecutively to the 8 months’ term of Charge 3 and the balance
I I
concurrent. The sentence on Charge 4 to be served concurrently with
J Charge 2 as it involved the same police officer. The total sentences for J
these three charges are therefore 12 months’ imprisonment.
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L 36. The 12 months term of Charges 2 - 4 will also be served L
consecutively to the 24 months’ term of Charge 1 and Charge 5, making a
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total of 36 months’ imprisonment.
N N
37. The court has sympathy for the girlfriend and the child of the
O O
defendant who are now lacking care and support due to the incarceration of
P the defendant but the Court of Appeal has repeatedly emphasized that P
family circumstances virtually played no part in mitigation especially in
Q Q
serious cases such as the present. The defendant should think twice before
R he committed the offences especially when he was still on court bail. R
S S
38. That is not the end of the matter.
T T
U U
V V
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A A
39. A sentencing judge must consider the criminality involved
B B
not only in the offences for which the accused is being sentenced, but also
C C
for which he is currently serving the sentence: see HKSAR v Dinh
D
Khac-nat [2001]HKCU 444. I am required to approach the question of D
sentence as if the two cases had been heard together: see R v Tong Hoi-fung
E E
[1988] 1HKLR 610-611
F F
40. Of the total sentences the defendant had received in the earlier
G G
case DCCC 66/2012, 6 weeks imprisonment term was imposed as a result
H of his breach of a suspended sentence. It was only proper that the sentence H
should be activated and I shall not disturb this part of the sentence. As to
I I
the remaining 16 months’ term for “dangerous driving” offence which is
J similar to our present case, I therefore order that 8 months of the 36 J
months’ term in the present case be run concurrently to his current
K K
sentence. In effect, he was only required to serve half of his term for his
L first “dangerous driving” offence. In total, it also represented a notional L
starting point of 5 ½ years’ imprisonment for these two very bad cases
M M
involving a total of six charges committed by the defendant with a span of
N 4 months whilst on bail. N
O O
P P
Q Q
(A. Kwok)
R Deputy District Judge R
S S
T T
U U
V V
DCCC389/2012 HKSAR v. IP CHEONG HING, MICHAEL - LawHero
A A
B DCCC389/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 389 OF 2012
E E
----------------------
F HKSAR F
v
G G
IP Cheong-hing, Michael
H ---------------------- H
I Before: Deputy District Judge A. Kwok I
J Date: 28 June 2012 J
Present: Mr Sharman Lam, SPP of the Department of Justice, for
K K
HKSAR
L Mr Keith Fung, instructed by Cheung & Liu for the L
Defendant
M M
Offence: (1) Dangerous driving (危險駕駛)
N N
(2)-(3) Assaulting a police officer in the due execution of his
O duty (襲擊在正當執行職務的警務人員) O
(4) Resisting a police officer acting in the execution of his
P P
duty (抗拒執行職責的警務人員)
Q Q
(5) Possession of a dangerous drug (管有危險藥物)
R R
-------------------------------
S S
Reasons for Sentence
T ------------------------------- T
U U
V V
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A A
B B
The Charge
C C
D
1. The defendant appeared before me on 14 June 2012 and D
pleaded guilty to a total of 5 charges: one charge of “dangerous driving”,
E E
contrary to section 37(1) of the Road Traffic Ordinance, Cap 374(Charge
F 1); two charges of “assaulting a police officer in the due execution of his F
duty, contrary to section 36(b) of the Offences against the Person
G G
Ordinance, Cap 212 (Charge 2 & 3); one charge of “resisting a police
H officer acting in the due execution of his duty” contrary to section 63 of the H
Police Force Ordinance, Cap 232 (Charge 4) and finally, one charge of
I I
“possession of a dangerous drug”, contrary to section 8(1)(a) and (2) of the
J Dangerous Drugs Ordinance (Charge 5). J
K K
The Facts
L L
2. I would simply adopt the entirety of the summary of facts
M M
which was admitted by the defendant before he was duly convicted of all
N the charges:- N
O O
“1. On 11-3-2012, police officers including senior inspector
David Neil Bennett (“PW1”); Police Constable 5185 LAU
P Chun-ning, Johnny (“PW2”); Acting Sergeant 49950 MA P
Wai-lun (“PW3”) and Police Constable 60 (“PW4”) were
Q
patrolling in an unmarked police vehicle (“the Police Vehicle”)
Q
in the Yuen Long area. PW4 was the driver. It was raining. The
road surface was wet.
R R
2. At around 5:59 a.m., when they reached the road
junction of Kung Um Road and Kiu Hing Road, they saw a
S S
private car bearing registration mark MZ 6897 (“V”) driven by
the Defendant failed to stop at the red signal of a set of
T temporary traffic lights at the said road junction. The Police T
Vehicle followed V by keeping a distance of about 20 metres.
U U
V V
- 3 -
A A
B 3. Along Kung Um Road, V cut across the continuous B
double white line road markings to overtake a private car LP
C 6966. V gave no traffic signal before the overtaking. The C
overtaking caused LP 6966 to brake suddenly to avoid collision.
D 4. Later, along Kung Um Road, V cut across the D
continuous double white line road markings to overtake a public
E
light bus LX 2049. The overtaking caused LX 2049 to brake
E
suddenly to avoid collision.
F 5. V was travelling at a speed of approximately 100 km/hr F
where the speed limit was 50 km/hr. Upon reaching Kung Um
Road near lamppost BD 2150, V travelled through another set of
G G
red traffic lights.
H 6. The Police Vehicle kept on following V. Upon reaching H
Ha Ko Po Tsuen on Tam Tin Road, PW4 activated the siren, and
used the public announcement system to indicate their police
I identity and to direct the driver of V to slow down and to stop. V I
slowed down to about 15 km/hr. The Police Vehicle and V
J travelled parallel to each other. PW1 saw the Defendant’s face. J
There was no one else on board of V. Suddenly, V accelerated.
The Police Vehicle gave chase.
K K
7. V entered Kam Tin Bypass and travelled in the middle of
the carriageway, straddling both lanes. As the chase continued,
L L
V entered Castle Peak Road in the wrong direction and travelled
against traffic flow for approximately 0.3 km, forcing a public
M light bus to brake and swerve out of the way to avoid a head-on M
collision.
N 8. V then cut back into the correct section of the N
carriageway and entered San Tam Road, towards Fairview Park.
O V’s speed was approximately 110 km/hr where the speed limit O
was 50 km/hr. During the chase, PW1 saw the Defendant threw
items out of V’s window in 3 different occasions. Those items
P could not be recovered. P
Q
9. Upon reaching Fairview Park Roundabout, V exited
Q
back onto the southbound section of San Tin Highway, cutting
across the path of a private car intending to enter the southbound
R slip road, forcing the private car to brake hard and swerve to R
avoid a collision. V then travelled along the San Tin Highway,
at a speed of approximately 140 km/hr where the speed limit
S S
was 100 km/hr.
T 10. V continued into Yuen Long Road and Pok Oi T
Interchange, taking the Shap Pat Heung exit heading towards
U U
V V
- 4 -
A A
Tai Kei Leng Road. V then entered Tai Shu Ha Road East and
B then Tai Shu Ha Road West. On reaching a section of the road B
near lamppost FA 9088, V travelled through the red signal of a
C set of temporary traffic lights. V continued along Tai Shu Ha C
Road West and on reaching lamppost BD 2445, V travelled
through the red signal of another set of temporary traffic lights.
D D
11. Whilst travelling along Tai Tong Road, V cut across
E
the continuous double white line road markings to overtake a
E
private car and a minibus. V finally entered an unnamed road
leading into Shui Tsiu San Tsuen. V overtook a taxi by making
F a sharp cut in front of it. The taxi braked hard. They almost F
collided with each other.
G G
12. V finally travelled into an open ground and crashed
into the metal railings in the area. The Defendant jumped out of
H V and ran away towards Shui Tsiu San Tsuen. V somehow kept H
travelling forward even after the Defendant had jumped out of it.
V finally stopped after colliding with other metal railings in the
I area. No one was found inside V. I
J 13. Upon seeing the Defendant jumped out of V, PW2 J
and PW3 immediately alighted from the Police Vehicle and
chased the Defendant into the village. Near Ground Floor,
K No.63A, Shui Tsiu San Tsuen, Shap Pat Heung, Yuen Long, K
New Territories, in Hong Kong, PW2 managed to grab the
Defendant’s shoulder, declared his police identity, and told the
L L
Defendant not to run. In return, the Defendant elbowed PW2 in
the chest and caused PW2 to fall towards the wall. At this
M juncture, the Defendant picked up a soft drink glass bottle and M
threw it at PW3 who was chasing him. The bottle hit PW3’s
chest. The bottle broke into pieces.
N N
14. The chase continued. At the end, the Defendant lost
O his balance whilst running, and was subdued by PW2 and PW3 O
near Ground Floor, No.115A, Shui Tsiu San Tsuen, Shap Pat
Heung, Yuen Long, New Territories, in Hong Kong. PW2
P pressed the Defendant onto the ground, but he resisted PW2 by P
struggling vigorously and yelling. He ignored all the repeated
Q
verbal warnings.
Q
15. Upon body search, the police found from the
R Defendant’s trousers pockets a mobile phone and a piece of R
paper containing traces of a powder containing ketamine. The
Defendant denied possession of the latter. Later, reinforcement
S S
arrived. PC7021 declared arrest on the Defendant. Under
caution, the Defendant said he had only drunk a little bit of
T alcohol. T
U U
V V
- 5 -
A A
16. Breath test showed that there were 18 micrograms
B of alcohol in 100 ml of the Defendant’s breath sample. It was B
within the prescribed statutory limit.
C C
17. The Defendant refused to sign on the record of
interview which was a post-record of what he said under
D caution. D
E
18. PW2 was treated in a hospital. PW2 sustained
E
tenderness and redness on his chest wall. He was discharged
from the hospital after treatment. Sick leave for 2 days was
F granted. F
19. PW3 was treated in a hospital. PW3 sustained
G G
tenderness on his left chest wall, his left elbow, and his left knee.
He also sustained abrasion on his left face. He was discharged
H from the hospital after treatment. Sick leave for 1 day was H
granted.
I 20. The total distance of the “car chase” was measured I
to be around 18.7 kilometres.”
J J
K Mitigation K
L L
3. The defendant is now aged 25. He is single and was born in
M Hong Kong. Before he was incarcerated, he was cohabitated with his M
girlfriend aged 23 and they have a 5 year old son. The cohabitant is a
N N
housewife and the family has been living in a village house in Yuen Long
O for the last four years. According to the Drug Addiction Treatment Centre O
(“DATC”) Report which I have called for the defendant, he dropped out of
P P
school without completing Form 2. Thereafter, he did not receive any
Q further education or vocational training. After leaving school, he started Q
working as a delivery worker. Thereafter, he had also worked as a salon
R R
assistant and a labourer in a re-cycling company for earning his living.
S Prior to his present jail custody, he worked as a pet groomer with a S
monthly income of around $10,000.
T T
U U
V V
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A A
B B
4. The defendant had a total of 7 previous criminal convictions,
C
including “theft”, “robbery”, and also similar records of “possession of C
D
dangerous drugs”, “assaulting a police officer” and “dangerous driving”. D
He first transgressed the law in 2001, committing the offence of “theft” for
E E
which he was placed on probation for 12 months. The Probation Order was
F later extended to 18 months and also 21 months because of the subsequent F
offences of “robbery” in 2002 and also the breach of the Probation Order in
G G
2003. He was later sentenced to the Detention Centre instead in 2004 at the
H age of 17 for another charge of “possession of dangerous drugs”. As for his H
last conviction, he was sentenced to 16 months’ imprisonment and
I I
disqualified of driving for 18 months very recently on 5 June 2012 for the
J offence of “dangerous driving” (DCCC 66/2012 refers), together with the J
activated 6 weeks’ suspended sentence for another case of “possession of
K K
dangerous drugs” (TMCC 1975/2011 refers), making a total of 16 months
L and 6 weeks’ imprisonment. As for traffic records, the defendant first L
obtained his driving license in 2008. Apart from the last conviction of
M M
“dangerous driving”, he has no other traffic conviction but over the years,
N he was fined in numerous occasions for fixed penalty payments for minor N
traffic offences such as speeding and failing to comply with traffic signs.
O O
P 5. In mitigation, Mr Fung acting for the defendant submitted that P
the defendant did not have an appalling driving record and he was very
Q Q
remorseful and pleaded guilty at the first opportunity. The defendant has
R also written a letter to the court expressing his regrets and how much he R
was caring for his girlfriend and their son. The defendant begged the court
S S
to treat him leniently so that he could be discharged sooner to take care of
T the family. Mr Fung properly reminded the court that the defendant was T
U U
V V
- 7 -
A A
only sentenced a few weeks ago in the District Court and urged me to take
B B
into account his current sentence and apply the principle of totality in
C C
considering the total sentences for these two cases.
D D
Sentencing Considerations
E E
Charge 1
F F
6. In SJ v Wong Wai Hung CAAR 7/2010 (unreported), the
G G
Court of Appeal noted that,
H H
“21. In recent years, the courts have repeatedly emphasized
I the importance of having in mind a deterrent effect when I
sentencing in cases involving dangerous driving.
J 22. … Culpability is the determining factor.” J
K K
7. In SJ v Liu Kwok Chun CACC 3/2009, the Court of Appeal
L recognized that: L
M M
“the defendant’s culpability should be the basis of the
sentencing exercise and on this basis, an appropriate sentence is
N to be determined”. N
O 8. In para 37 of the same case, it was held that:- O
P P
“In assessing the degree of culpability there are two extreme
situations. The first is where the event occurred because of a
Q momentary error of judgment. The other is the most serious one Q
in that there is a selfish disregard by the driver for the safety of
R other road users or of his passengers or with a degree of R
recklessness.”
S S
T T
U U
V V
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A A
The defendant’s Culpability in Charge 1
B B
C C
9. The list of what the court considered to be aggravating factors
D
in the English case of R v Cooksley [2004] 1 Cr App R (S) 1,11 included a D
number of matters such as the consumption of drugs or alcohol, excessive
E E
speed, racing, competitive driving, showing off, a disregard of warnings
F from fellow passengers, a prolonged persistent and deliberate course of F
very bad driving or aggressive driving, for example: persistent
G G
inappropriate attempts to overtake or cutting in after overtaking, using a
H mobile phone, driving when suffering from a known medical condition; H
other offences committed at the same time, for example: driving without
I I
holding a driving licence, driving whilst disqualified, driving without
J insurance, and driving while a learner without supervision. J
K K
10. In this case, it is clear that the manner of driving exhibited by
L the defendant falls into the more serious category of “ a selfish disregard L
by the driver for the safety of other road users with a degree of
M M
recklessness.” Many of the aggravating features as stated in Cooksley were
N also present in our case such as a prolonged persistent (18.7 km pursuit) N
and deliberated course of very bad driving (failing to obey traffic signs and
O O
stop before red signals) or aggressive driving (speeding at 140 km/hr,
P overtaking by cutting across the continuous double white line and even P
travelling against traffic flow for 0.3 km) and a total disregard of warnings
Q Q
from the police officers indicating the defendant to pull over and stop his
R vehicle. R
S S
11. This is a case where the defendant had obviously appreciate
T the risk of his action which might cause danger to the police officers giving T
U U
V V
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A A
chase and the other road users, but consciously and irresponsibly went on
B B
to take it. The defendant had blatantly disregarded the safety and well
C C
being of the police officers and the other road users and had endangered
D
their lives. D
E E
12. All the prevailing circumstances of the case showed that the
F manner of the defendant’s driving was obviously dangerous. It is only F
fortunate that no other vehicle was damaged and road users were injured as
G G
a result.
H H
13. Furthermore, the defendant committed the offences in the
I I
present case while he was on bail for another “dangerous driving” case of
J DCCC 66/2012 which was committed by him only some 4 months before J
the present offence, showing a total contempt for the legal system that is
K K
most worrying.
L L
The Sentence
M M
N 14. The maximum sentence for dangerous driving is a fine of N
$25,000 and imprisonment for 3 years. There is also a minimum
O O
disqualification period of 2 years, this being a 2 nd conviction for dangerous
P driving and a mandatory requirement for an order for the defendant to P
attend and complete a driving improvement course.
Q Q
R 15. There are no sentencing guidelines but in sentencing I have R
considered the following authorities:-
S S
T T
U U
V V
- 10 -
A A
The Secretary for Justice v Ko Wai Kit, Paul, CAAR 12/2001
B B
C C
16. The respondent, aged 22, was sentenced after trial to 12
D
months’ imprisonment for one charge of dangerous driving and 1 weeks’ D
imprisonment for resisting Police officers. The Secretary for Justice
E E
applied to review the sentence. The respondent’s driving was described by
F the Court as a shocking case of dangerous driving that clearly falls within F
that band that can be called the worst of its type. The Court described the
G G
course of the driving as follows:
H H
“6. A closer account reveals that after the respondent drove off
I from Jordan Valley Road, he steered his van the wrong way I
against traffic on a one way road, and failed then to stop at red
traffic signals. He was pursued. At the junction of On Wah
J Street and Chun Wah Road, the van struck a petrol tanker. But J
the respondent drove on. He struck two more private cars on
K
Princess Edward Road East while passing through a gap
K
between them. Not surprisingly, both vehicles were damaged.
L 7. A Police Emergency Unit vehicle, car no. 52, tried to block L
the traffic on Price Edward Road East, but it, too, was hit by the
van, and was as a result rammed into the concrete barrier of a
M M
flyover. The driver of car no. 52, a police officer, was injured
and the vehicle damaged. Alerted to the fact that the
N respondent's van was approaching Prince Edward Road West, N
another police officer stopped the traffic near the junction of
Prince Edward Road West and La Salle Road. The respondent
O managed to evade the block by driving through a gap but not O
before causing the officer to fear that he was to be run down by
P the respondent, so much so that he drew his revolver and fired at P
the van.
Q 8. On the respondent went, driving as dangerously as before. Q
The van turned left from Prince Edward Road to Waterloo Road,
heading towards Princess Margaret Road. When it reached
R R
Chatham Road near Austin Road, he drove the van across the
hard shoulder to the opposite lane and then travelled against the
S flow of oncoming traffic. He then turned right into Austin Road, S
heading towards Canton Road. When the van reached
Kimberley Road in Tsimshatsui, it collided with a taxi and three
T private vehicles, causing injuries to one driver and to a T
U U
V V
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A A
passenger. The van then reversed and damaged a lorry and three
B police motorcycles. The journey was finally at its end.” B
C C
17. One of the grounds of mitigation put forward was that the
D respondent drove as he did because he was driving under the influence of D
‘ice’. The Court of Appeal considered that it was not a mitigating factor but
E E
an aggravating one.
F F
18. The Court considered that the manner of the respondent’s
G G
driving called for a 3 year starting point. They allowed the Application for
H Review and set aside the sentences imposed by the judge, substituting for H
the dangerous driving charge a sentence of two years' imprisonment and a
I I
sentence for the resisting police officer charge of 12 months' imprisonment
J to run consecutively, resulting in a total of three years' imprisonment. The J
Court also substituted the original period of disqualification of 2 years with
K K
one of 5 years, on the ground that the respondent ‘has demonstrably shown
L himself to be a menace to pedestrians, and to the driving public and their L
passengers.’
M M
N 19. The Court of Appeal further opined that in cases such as that N
one, the maximum sentence was inadequate to reflect the severity of the
O O
crime and wondered whether the legislature had in mind cases such as
P theirs. P
Q Q
HKSAR v Jim Chong Shing, CACC 186/2003
R R
S
20. The Police conducted an anti-illegal road racing operation at S
Tuen Mun Road, New Territories. A roadblock was set up at Tuen Mun
T T
Road near the Tuen Mun town centre.
U U
V V
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A A
21. The appellant was one of 5 private vehicles that approached
B B
the road black at high speed shortly after 3am. Upon seeing the road block,
C C
all 5 cars made U-turns and travelled against the traffic at high speed.
D
Meanwhile, 2 Police vans had been driven in place to block off the road D
that the cars came from. The appellant’s vehicle was the first to arrive at
E E
the Police vans. It did not stop and collided with the vans, but managed to
F pass through. F
G G
22. The appellant continued to drive his car against on-coming
H traffic. A Police officer on motorcycle gave chase. There was one point H
when both the appellant and the police had stopped their respective
I I
vehicles and were side by side on the road. The Police officer ordered the
J driver to turn off the car’s engine. On hearing this, the appellant suddenly J
revered his vehicle into another road. The Police officer continued to chase
K K
after the car but failed to catch up and eventually lost sight of it. The chase
L lasted for more than 10 minutes. The appellant was later identified by the L
Police officer in an identification parade.
M M
N 23. The learned trial judge adopted a 2½ years’ imprisonment N
starting point in relation to the dangerous driving charge. The Court of
O O
Appeal said:
P P
“27. There is no doubt that this was an appalling case of
Q dangerous driving. In sentencing the Applicant, the Judge Q
considered all the relevant circumstances, including the
disobeying of the police's commands to stop, the driving at a
R R
high speed against the flow of on-coming traffic, the speeding at
up to 80 kmh in excess of the speed limit for a period of 10
S minutes and the overtaking a vehicle by crossing double white S
lines.
28. The Judge was aware of the Applicant's previous
T convictions. There are many, and in particular, they contain 2 T
U U
V V
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A A
charges of dangerous driving in 1979, 1 charge of dangerous
B driving in 1981, 1 charge of reckless driving in 1988, motor B
racing and reckless driving in 1994, speeding and dangerous
C driving in 2003. C
29. The Judge did not equate this case with Secretary for Justice
v Ko Wai-kit [2001] 3 HKLRD 751 in which, for a similar series
D of offences, a starting point of 3 years' imprisonment was taken. D
The Applicant in that case had committed his offences at a busy
E
time of day - 5.30 p.m. and had damaged a number of other
E
vehicles and caused injuries to a number of people. In this case
the offences were committed at night when the roads were not
F busy and the damage was limited to 2 police vehicles. However, F
the potential for damage on a scale approaching that in Ko Wai
Kit was there and the Applicant demonstrated exactly the same
G G
disregard for the safety of other road users and the sanctity of
other peoples' property as the offender in Ko Wai Kit did. The
H Judge adequately reflected the factual difference between the H
two cases by taking a lower starting point of 2 1/2 years'
imprisonment for the dangerous driving offence.”
I I
J
The imprisonment term J
K K
24. By comparison, the manner of driving in present case is
L nearly as bad as the above two cases except that no vehicle was damaged L
and no person was injured. Moreover, the defendant did not have an
M M
appalling driving record such as the applicant Jim Chong Shing. I therefore
N consider that a lower starting point of 2 years’ imprisonment is appropriate N
but because it was committed whilst on bail which was just granted by the
O O
District Court on 6 February 2012, the starting point has to be increased by
P 6 months to reflect the serious contempt for the court by the defendant. The P
sentence is reduced by 1/3 on account of his plea which is about the only
Q Q
mitigating factor. The sentence on Charge 1 is therefore 20 months’
R imprisonment. R
S S
T T
U U
V V
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A A
Disqualification
B B
C C
25. In DCCC 66/2012, the defendant was already disqualified
D
from driving for 18 months, to be commenced at the conclusion of the D
imprisonment sentence which is a total of 16 months and 6 weeks. It
E E
should be noted however that s 69A of the Road Traffic Ordinance only
F applies if it is the defendant’s second or subsequent conviction of a F
relevant scheduled offence (s 69A (1)(b) refers). Prior to the conviction on
G G
5 June 2012, it appears that the defendant was not convicted of any the
H same or different relevant scheduled offence. The effect is if the start of the H
disqualification is to commence normally on the date of his conviction,
I I
most, if not all, of the period of disqualification would merge into the term
J of his imprisonment, as not only such disqualification period was too short J
but would not have any actual effect. The Court of Appeal has already
K K
considered that such kind of a disqualification order would be considered
L as wrong in principle in SJ v Hung Ling Kwok CAAR 9/2007. L
M M
26. Having taken into consideration of the whole circumstances
N of the case and the sentencing principle, this court disqualifies the N
defendant from holding or obtaining a driving license for all classes of
O O
vehicles for a period of 40 months.
P P
27. Since the new law requiring that the period of disqualification
Q Q
should commence upon the term of imprisonment has been served had
R already came into effect on 17 December 2010 before the present case, and R
this being already the second dangerous driving conviction within the last
S S
5 years, the disqualification order that I just imposed is to take effect upon
T the defendant’s serving of the term of imprisonment. T
U U
V V
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A A
B B
Driving Improvement Course
C C
D
28. Once a person is convicted of the relevant offences which D
include dangerous driving, it is mandatory to order the person to attend
E E
driving improvement course unless the court for special reasons decides
F not to make such an order. I can find no special reason for not ordering the F
defendant to attend a driving improvement course and he is to attend and
G G
complete such a course at his own expense within the last 3 months before
H the expiry of the disqualification order. Failing to comply with such an H
order is an offence and the maximum sentence is one of 2 months
I I
imprisonment (Section 72A of Road Traffic Ordinance).
J J
Charge 2 & 3
K K
L 29. The maximum imprisonment term for “ assaulting a police L
officer in the due execution of his duty” contrary to s 36(b) of the Offences
M M
against the Person Ordinance, Cap 212 is 2 years’ imprisonment.
N N
30. The assault by the defendant on two police officers is the
O O
whole series of action he had taken as he jumped out from the vehicle after
P colliding with some metal railings. Charge 2 took the form of elbowing the P
chest wall of PW2 whilst Charge 3 involved the more serious of throwing a
Q Q
glass soft drink bottle onto the chest of PW3 who was chasing him. It
R should also be noted that this was not the first time the defendant R
committed this type of offence. I find that given the manner of the assault,
S S
a term of imprisonment is appropriate in order to protect the well being of
T our police officers during their execution of duties. I will adopt a starting T
U U
V V
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A A
point of 9 months’ imprisonment for Charge 2 and 12 months’
B B
imprisonment for Charge 3, reducing it to 6 months and 8 months
C
respectively on each charge as a result of the defendant’s plea of guilty. C
D D
Charge 4
E E
F 31. As this is only a “resisting a police officer” offence which is F
relatively minor than the two assaulting police charges and the offence
G G
took the form of struggling vigorously and yelling to PW2 who was trying
H to subdue the defendant and pressed him onto the ground, the proper H
starting point should be 3 months’ imprisonment which is reduced to 2
I I
months for the plea of guilty.
J J
Charge 5
K K
L 32. Finally, the possession of traces of powder containing L
ketamine by the defendant is a separate and distinct offence. According to
M M
the DATC report, the defendant first started to abuse cannabis and
N ketamine in 2001. He was sentenced to Detention Centre and was given a N
suspended sentence for his last “possession of dangerous drugs” offence.
O O
However, the report confirmed that he is not a drug dependant and is not
P suitable for admission to the DATC. Although the quantities involved for P
this offence is very small, in light of his previous similar records, I consider
Q Q
a starting point of at least 6 months’ imprisonment is appropriate in order
R to have a deterrent effect on him. The sentence is reduced to 4 months to R
reflect his plea.
S S
T T
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A A
Totality of Sentences
B B
C C
33. The principle of totality requires the court to adjust the
D
sentences for all the above charges. D
E E
34. I order that the sentences on Charge 1 and Charge 5 to be
F served wholly consecutively, ie 24 months as they are entirely separate and F
distinct offences.
G G
H 35. I order that only 4 months of Charge 2 to be served H
consecutively to the 8 months’ term of Charge 3 and the balance
I I
concurrent. The sentence on Charge 4 to be served concurrently with
J Charge 2 as it involved the same police officer. The total sentences for J
these three charges are therefore 12 months’ imprisonment.
K K
L 36. The 12 months term of Charges 2 - 4 will also be served L
consecutively to the 24 months’ term of Charge 1 and Charge 5, making a
M M
total of 36 months’ imprisonment.
N N
37. The court has sympathy for the girlfriend and the child of the
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defendant who are now lacking care and support due to the incarceration of
P the defendant but the Court of Appeal has repeatedly emphasized that P
family circumstances virtually played no part in mitigation especially in
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serious cases such as the present. The defendant should think twice before
R he committed the offences especially when he was still on court bail. R
S S
38. That is not the end of the matter.
T T
U U
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A A
39. A sentencing judge must consider the criminality involved
B B
not only in the offences for which the accused is being sentenced, but also
C C
for which he is currently serving the sentence: see HKSAR v Dinh
D
Khac-nat [2001]HKCU 444. I am required to approach the question of D
sentence as if the two cases had been heard together: see R v Tong Hoi-fung
E E
[1988] 1HKLR 610-611
F F
40. Of the total sentences the defendant had received in the earlier
G G
case DCCC 66/2012, 6 weeks imprisonment term was imposed as a result
H of his breach of a suspended sentence. It was only proper that the sentence H
should be activated and I shall not disturb this part of the sentence. As to
I I
the remaining 16 months’ term for “dangerous driving” offence which is
J similar to our present case, I therefore order that 8 months of the 36 J
months’ term in the present case be run concurrently to his current
K K
sentence. In effect, he was only required to serve half of his term for his
L first “dangerous driving” offence. In total, it also represented a notional L
starting point of 5 ½ years’ imprisonment for these two very bad cases
M M
involving a total of six charges committed by the defendant with a span of
N 4 months whilst on bail. N
O O
P P
Q Q
(A. Kwok)
R Deputy District Judge R
S S
T T
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V V