DCCC937/2023 HKSAR v. CHANG CHUN LOK, MARCUS - LawHero
DCCC937/2023
HKSAR v. CHANG CHUN LOK, MARCUS
區域法院（刑事）Deputy District Judge K K Leung7/5/2024[2024] HKDC 821
DCCC937/2023
A A
B B
DCCC 937/2023
C [2024] HKDC 821 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 937 OF 2023
F F
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G G
HKSAR
H v H
CHANG Chun-lok, Marcus
I I
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J J
Before: Deputy District Judge K K Leung
K K
Date: 8 May 2024
L Present: Ms Annabelle Chan, Senior Public Prosecutor (Ag), for L
HKSAR
M M
Mr Peter Pannu, instructed by Messrs Chow Wong &
N N
Lawyers, assigned by the Director of Legal Aid, for the
O
defendant O
Offence: [1] Taking conveyance without authority（未獲授權而取用
P P
運輸工具）
Q [2] Dangerous driving（危險駕駛） Q
R [3] Driving an unlicensed vehicle（駕駛未領牌車輛） R
[4] Driving without a valid driving licence（駕駛時無有效駕
S S
駛執照）
T T
U U
V V
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A A
B B
[5] Using a motor vehicle without third party insurance（沒
C 有第三者保險而使用汽車） C
[6] Resisting police officers in the due execution of their
D D
duties（抗拒在正當執行職務的警務人員）
E E
[7] - [8] Possession of a dangerous drug（管有危險藥物）
F F
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G G
REASONS FOR SENTENCE
H ----------------------------------------- H
I I
1. The defendant (‘D’) pleaded guilty to the following 8 charges:
J J
Charge 1: Taking conveyance without authority, contrary
K K
to section 14(1) of the Theft Ordinance, Cap.
L 210; L
M M
Charge 2: Dangerous driving, contrary to section 37(1) of
N N
the Road Traffic Ordinance, Cap 374;
O O
Charge 3: Driving an unlicensed vehicle, contrary to
P P
section 52(1)(a) and (10)(a) of the Road Traffic
Q Ordinance, Cap 374; Q
R R
Charge 4: Driving without a valid driving licence, contrary
S to section 42(1) and (4) of the Road Traffic S
Ordinance, Cap 374;
T T
U U
V V
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A A
B B
Charge 5: Using a motor vehicle without third party
C insurance, contrary to section 4(1) and (2)(a) of C
the Motor Vehicles Insurance (Third Party
D D
Risks) Ordinance, Cap 272;
E E
Charge 6: Resisting police officers in the due execution of
F F
their duties, contrary to section 36(b) of the
G Offences against the Person Ordinance, Cap 212; G
H H
Charges 7-8:Possession of a dangerous drug, contrary to
I section 8(1)(a) and (2) of the Dangerous Drugs I
Ordinance, Cap 134.
J J
K ADMITTED FACTS K
L L
Charges 1, 3, 4 and 5
M M
2. On 2 May 2023, D sold a private car bearing registration mark
N N
WW 4425 (the ‘Car’) to his friend, PW1. PW1 became the registered
O owner of the Car since then. After PW1 purchased the Car, he did not have O
enough money to purchase a third party insurance for the Car. Thus, PW1
P P
kept the Car at Po Lam Estate Carpark with the car key hidden on the right
Q front tire. Q
R R
3. At all material times:-
S S
(a) PW1 had never given D permission to use the Car;
T T
U U
V V
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A A
B B
(b) The Car did not have a valid vehicle licence;
C C
(c) D was not a holder of any driving licence; and
D D
E (d) The Car had no valid third party insurance in force as E
required under the Motor Vehicles Insurance (Third
F F
Party Risks) Ordinance, Cap 272.
G G
4. On 7 May 2023, D arrived at Po Lam Estate and took the car
H H
key from the right front tire of the Car. D then took the Car for a drive
I without PW1’s permission. I
J J
Charge 2
K K
5. At around 2317 hours on 7 May 2023, while conducting a
L L
patrol on a police motorcycle at Man Kuk Lane (Westbound), PW2 noticed
M D driving the Car. At the time, two passengers were on board of the Car. M
The Car made a U-turn at Man Kuk Lane (Eastbound) by crossing the
N N
double white lines thereat and drove along Sheung Ning Road
O (Southbound). Using the loudhailer, PW2 repeatedly demanded the Car to O
stop. However, D disobeyed PW2’s instructions and drove on.
P P
Q 6. PW2 gave chase and saw the Car sped towards a red traffic Q
light. The Car jumped the said red traffic light and crossed the road
R R
junction of Sheung Ning Road and Ming Shing Road. PW2 switched on
S the beacon light and siren of the Police vehicle forthwith. The Car drove S
into a roundabout in the opposite direction of the traffic and made a U-turn
T T
towards Sheung Ning Road (Southbound). Thereafter, the Car jumped
U U
V V
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A A
B B
another red traffic light at the junction of Sheung Ning Road and Chung
C Wa Road. The Car made another U-turn by crossing the double white lines C
at Pui Shing Road.
D D
E 7. PW2 observed that, the Car was initially driven at a speed of E
about 60-70 km/h (on road sections where the speed limit was 50 km/h).
F F
However, once the Car got on the Tseung Kwan O Tunnel Road (where
G the speed limit was 70 km/h), PW2 noticed that the Car accelerated and G
travelled at a speed reaching 110 km/h. PW2 reported the incident to the
H H
police console, and continued to pursue the Car along Tseung Kwan O
I Road towards the direction of Tseung Kwan O Tunnel. I
J J
8. Towards the end of the chase and inside the Tseung Kwan O
K Tunnel, the Car cut across the double white lines once and thereafter drove K
forcibly into the gap between the private vehicle which was immediately
L L
front of the Car (‘V1’) and another private car bearing registration mark
M TS 9632 which was travelling on the left lane next to the Car (‘V2’). The M
Car then collided with V2 whilst moving forward, resulting in scratches on
N N
V2. Consequently, the driver of V2 suffered from tenderness on the right
O chest wall while the passenger on board of V2 suffered from tenderness on O
the neck. Thereafter, the Car cut across the double white lines inside the
P P
Tunnel again. The aforesaid collision was captured by the CCTV installed
Q at the Tseung Kwan O Tunnel. Q
R R
9. D drove the Car in a dangerous manner since:-
S S
(a) D drove the Car at speeds beyond the speed limits and
T T
in contravention of traffic regulations, ie repeatedly
U U
V V
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A A
B B
cutting across double white lines, driving in the
C opposite direction of the traffic, jumping red traffic C
lights, in disobedience to the Police’s order to stop the
D D
Car and with persistent and reckless disregard for the
E safety of (i) other vehicles and (ii) the passengers on E
board, in order to evade the Police’s pursuit,
F F
investigation and arrest; and
G G
(b) D drove the Car forcibly into the gap between V1 and
H H
V2 and intentionally collided with V2, causing damage
I to V2 and injuries to the driver and passenger on board I
of V2, in disobedience to the Police’s order to stop the
J J
Car and with persistent and reckless disregard for the
K safety of (i) other vehicles and (ii) the passengers on K
board, in order to evade the Police’s pursuit,
L L
investigation and arrest.
M M
Charge 6
N N
O 10. Following the collision, D alighted from the Car near the exit O
of Tseung Kwan O Tunnel and attempted to flee by running towards Kwun
P P
Tong along Tseung Kwan O Road. However, D was intercepted by PW2
Q and PW3 shortly thereafter. While being intercepted, D used his right hand Q
to push PW3’s chest, causing PW3 to lose balance and fall on the ground
R R
along with D, who continued to resist arrest and tried to escape. As a result,
S D caused abrasions to PW3’s right thumb and left elbow. In response to S
D's resistance, PW3 issued repeated warnings and discharged OC Foam on
T T
D’s face to subdue him. The course of events which occurred after the
U U
V V
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A A
B B
aforesaid collision was captured by the CCTV installed inside the Tseung
C Kwan O Tunnel. C
D D
Charges 7 and 8
E E
11. D was arrested. Upon search of the Car with Police Dog
F F
Unit's assistance, the Police found one transparent plastic bag containing
G 3.46 grammes of herbal cannabis (E1) inside the glove box of the Car. G
Further, a bottle containing 0.59 grammes of liquid containing 0.48
H H
grammes of tetrahydrocannabinol (E2) was found inside an orange ‘Nike’
I bag in the trunk of the Car. The Government Chemist subsequently I
confirmed the narcotic contents of E1-2.
J J
K 12. Under caution at scene and in the subsequent cautioned video- K
recorded interview, D admitted taking the Car without PW1’s consent for
L L
fun and drove it in a dangerous manner, including crossing double white
M lines and causing a collision with V2. He claimed that he tried to evade M
arrest by the Police as he did not have any driving licence. D also admitted
N N
possessing E1-2 for self-consumption.
O O
P P
Q Q
R R
S S
T T
U U
V V
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A A
B B
Footages
C C
13. Three video clips capturing the course of events inside the
D D
Tseng Kwan O Tunnel were played in court before sentence:
E E
F F
G Footage 1 The Car drove into the gap between the G
Ch 141 23:18:50-23:18:55 private vehicles V1 and V2. The Car
H H
then collided with V2 which was
I travelling on the left lane. I
(Para 7 of amended summary of facts)
J J
Footage 2 D crossed the double white lines inside
K Ch 122 23:19:06-12:19:08 the middle part of the Tseung Kwan O K
Tunnel.
L L
(Para 7 of amended summary of facts)
M Footage 3 D abandoned the Car. He alighted at the M
Ch 113 23:19:19-23:19:39 exit of the Tseung Kwan O Tunnel. D
N N
struggled with two police officers i.e. the
O police officer who was waiting at the O
exit of the Tunnel (PW3) and the police
P P
officer who was chasing behind D
Q (PW2). Q
R R
S S
T 1 T
File no. 20230507225635.
2
File no. 20230107225232.
3
File no. 20230507231358.
U U
V V
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A A
B B
Photo Album
C C
14. A photo album was submitted to show:
D D
E (1) The scratch mark on the offside front of V2. (Photo 1-2) E
F F
(2) The damage on the nearside front of the Car. (Photo 3-4)
G G
(3) The subject matter of charges 7-8 ie E1-2 and the place
H where E1-2 were found. (Photo 5-11) H
I I
CRIMINAL RECORD OF THE DEFENDANT
J J
15. D has a clear criminal and traffic record.
K K
L MITIGATION L
M M
16. D is now aged 20 and was 19 at the time of the offences. He
N N
is educated up to Form 2. He is the only son in the family. His mother is
O
a full time housewife and his father works in a bank. They live in a private O
unit. At the time of the offence, D was a part -time delivery worker.
P P
Mitigation letters written by D and his family members were submitted.
Q Q
17. It was submitted by Mr Pannu that D had been in detention
R R
since his arrest on 7 May 2023. On the date of sentence, he would have
S been in detention for 12 months. The court was requested not to call for S
reports. Mr Panuu invited the court to impose a custodial sentence and to
T T
set a lenient sentence that would allow his release shortly from prison.
U U
V V
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A A
B B
C 18. In respect of charge 1, it was submitted by Mr Pannu that the C
taking of the vehicle was a one-off joyride incident, committed out of
D D
foolishness, and not for committing any crimes. The user of the car from a
E friend (without his consent) is different from stealing vehicles at random E
by using special tools or implements to commit crimes.
F F
G 19. In respect of charge 2, the road chase was not of long duration, G
and not the worst of its kind when compared to some other authorities.
H H
There is no evidence that he was under the influence of drink or drugs.
I Fortunately, no serious injuries were caused to anyone and no major I
damage to property was caused. Of course, there are scratch marks on the
J J
vehicle ahead and the discomfort caused to the two occupants therein, who
K fortunately did not seek nor required any medical treatment. The only K
harm, albeit minor, was to one of the officers who had some abrasions to
L L
his thumb when two officers were trying to apprehend D.
M M
20. Mr Pannu submitted in court that the facts of the present case
N N
might be similar to those in Lam Shun Choi4 DCCC 612/2021, though no
O facts of the cases are the same. However, the present case is not as serious O
as the facts in Ko Wai Kit, Paul CAAR 12/2001, Tang Chen Ming CACC
P P
227/2002 and Lam Shun Choi. The court was invited to consider the
Q relevant factors: (i) D has a clear record (traffic record as well) and is of Q
young age. (ii) He jumped two red lights. (iii) He drove against the traffic
R R
at a roundabout (presumably no vehicles at the time and no one was at peril
S or exposed to harm). (iv) He scratched the side of a vehicle as he tried to S
T T
4
The starting point of sentence is 2 years and 3 months imprisonment.
U U
V V
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A A
B B
squeeze past it when he entered the tunnel with some minor damage. (v)
C The occupants only suffered minor discomfort. (vi) The police chase was C
not tedious and for a long duration (5 odd minutes). (vii) No one was
D D
injured in his vehicle. (viii) The officer only sustained minor abrasion when
E apprehending D. E
F F
21. In respect of charges 3 to 5, Mr Pannu submitted that the
G traffic related conduct and the driving manner is not the worst of its kind, G
the court was invited to consider the sentence of charges 3 to 5 to be served
H H
concurrently to each other and concurrently to charge 2.
I I
22. In respect of charge 6, as there being no tariffs in place, the
J J
defence invited the court to adopt a starting point from a fine to 3 months’
K imprisonment. K
L L
23. In respect of charges 7 to 8, the drugs were cannabis and
M cannabis oil, which are soft drugs, as opposed to cocaine and ice. The M
quantity was very small. D stated that it was for his self-consumption, as
N N
he just started experimenting with it one or two months before, and he is
O not an addict. It was submitted that there was no evidence that he had O
consumed alcohol or taken any drugs whilst he was behind the wheels. The
P P
police breath tested the D, and the result was negative for both substances.
Q In any event, he has been detained for 12 months and thus there is no Q
necessity to call for any DATC report. A fine for these two offences or a
R R
short sentence of a starting point of 1 to 3 months for each charge, to be
S served concurrently, will suffice. S
T T
U U
V V
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A A
B B
24. As for mandatory disqualification, it was submitted that the
C appropriate period of suspension is left in the good hands of the court, as C
the court may deem appropriate. The court may think that a term of 1 year
D D
suspension may be appropriate since D does not have any previous
E convictions on record. E
F F
25. Finally, the court was urged to exercise leniency in sentence.
G G
SENTENCE
H H
I 26. I have considered the nature of the offences faced by D, the I
facts of the case admitted, the background of D and the mitigation
J J
submitted by the defence.
K K
27. D is now aged 20 years and 4 months. He was 19 at the time
L L
of the offences. I have borne in mind the legal principles in sentencing
M young offenders under the age of 21. I am aware that the restriction on M
imprisonment of young persons under section 109A of the Criminal
N N
Procedure Ordinance, Cap 221. Regards must be given in the
O consideration of rehabilitation and reformation of the young offender. O
Seriousness of the offences must also be given sufficient consideration.
P P
Q 28. In the present case, the offence of charge 6 which D pleaded Q
guilty to, being resisting police officers in due execution of their duties, is
R R
an excepted offence. As such, pursuant to section 109A (1A), section
S 109A(1) does not apply. S
T T
U U
V V
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A A
B B
29. In sentencing young offenders, the significant lapse of time
C between the commission of the offence, detention pending sentence and C
the date of sentencing should also be considered. In HKSAR v Chong Chin
D D
Tong and others HCCC 149/20215:
E E
“Young Offenders
F F
Here, there is the additional consideration of a significant lapse of
time between the commission of the offence, the detention of all
G but one of the defendants pending sentence and the date of G
sentencing.”
H H
30. In this case, I must consider the fact that D has been remanded
I I
since 7 May 2023 for almost a year.
J J
31. I find that an immediate custodial sentence is the appropriate
K K
sentence for the present case.
L L
32. I reminded myself that each case must decide on its own facts.
M M
N Charge 1 (Taking conveyance without authority) N
O O
33. The maximum sentence for the offence of taking conveyance
P without authority is 7 years’ imprisonment. P
Q Q
34. There is no sentencing tariff for this type of offence.
R R
S S
T T
5
In HCCC 149/2021, the defendants were charged with robbery, an excepted offence under Schedule 3
of Cap 221.
U U
V V
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A A
B B
35. In HKSAR v Andrianiaina Adrien Luck Yu Pau CACC
C 129/2016, given that the taking of the goods van without authority was a C
single offence and that the appellant was of previous good character, the
D D
Court considered that the appropriate starting point for sentence was 9
E months’ imprisonment. The authority of The Queen v Tam, Simon (HCMA E
489/1996 & 490/1996) was referred to:
F F
G “33. Of the sentences imposed in respect of the three offences G
of taking a conveyance without authority, Chan J said:
[11]“ Without setting a guideline for this type of offence, I should
H think that the sentence of 6 to 12 months imposed in the present H
case after a plea cannot be regarded in anyway as wrong in
principle or manifestly excessive.”
I I
J 36. Under caution, D admitted taking the Car without PW1’s J
consent for fun.
K K
L 37. For charge 1, I adopt a starting point of 6 months’ L
imprisonment, after a discount of one-third for the guilty plea, the sentence
M M
is 4 months’ imprisonment.
N N
Charge 2 (Dangerous driving)
O O
P 38. The maximum sentence for dangerous driving is a fine of P
$25,000 and imprisonment for 3 years.
Q Q
R R
S S
T T
U U
V V
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A A
B B
39. I have reminded myself of the sentencing principle set out by
C the Court of Appeal in Secretary for Justice v Poon Wing Kay & anor C
[2007] 1 HKLRD 660. The sentencing principle is one of deterrence. The
D D
culpability of the defendant is the dominant factor to be considered. In
E Poon Wing Kay, paragraph 10: E
F F
“(3) It is important for courts to drive home the message that
there may sometimes be extremely grave consequences flowing
G from acts of dangerous driving and it is therefore necessary to G
have in mind a deterrent effect when sentencing in many cases
involving dangerous driving: at p. 46C-E (para. 11). A motor
H vehicle, many may often forget, when not driven to requisite H
standards, can kill or maim. The standards required by the law
I for motorists found in the road traffic legislation and elsewhere I
are there to ensure that all who can come into contact with motor
vehicles (whether fellow motorists, passengers or pedestrians)
J are safe and that their lives are not endangered. J
K
(4) While a list can be drawn up of aggravating and K
mitigating factors, a sentencing court must however look at the
overall circumstances and the overall culpability of the offender.
L In assessing the overall seriousness of a crime, culpability is L
often the dominant factor: at p. 47B (para. 14). It is not a case of
counting the number of aggravating or mitigating factors and
M M
then arriving by mechanical means at the relevant sentence.
Sentencing is not quite that exact an exercise and courts must be
N sufficiently nimble to take into account the overall picture in N
order to arrive at an appropriate sentence. In some cases, the fact
that only some aggravating factors exist, but not others, may still
O bring the case into a very serious category.” O
P P
40. In this case, the D drove dangerously in order to avoid police
Q apprehension. As submitted by the defence, D was nervous and he knew Q
that he did not have a valid driving licence. At the time of the offence, he
R R
did not have any driving licence. Apart from that, I am sure he also knew
S there were dangerous drugs in the Car. S
T T
U U
V V
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A A
B B
41. In the case of Secretary for Justice v Ko Wai Kit, Paul CAAR
C 12/2001, the respondent was convicted of dangerous driving and resisting C
police officers in due execution of duties. The respondent in that case fled
D D
from the police and embarked on a crazed journey from Ngau Tau Kok to
E the Kowloon peninsula and he was finally stopped in Tsim Sha Tsui. E
During which, the respondent jumped red lights, collided with motor
F F
vehicles, and with motorcycles, injured a police officer and two civilians
G and failed to obey police commands to stop. The respondent was also G
under the influence of drugs. The Court allowed the Review, adopted the
H H
maximum sentence of 3 years as the starting point and set aside the original
I sentence of 12 months imprisonment. The Court also substituted the I
original period of disqualification of 2 years with one of 5 years.
J J
K 42. In The Secretary for Justice v Chan Hing Tung ( 陳興東 ) K
CAAR 1/2022, the respondent failed to stop before a road block in Kwun
L L
Tong Road and the police gave chase. The respondent did not stop in
M accordance with the police command and committed one traffic offence M
after another, namely, speeding, repeatedly crossing double white lines, as
N N
a result of which, causing other motor vehicles to stop abruptly to avoid
O O
collision and jumping red light twice. A police officer was also injured.
P
The Court allowed the Review, the Court adopted a sentence of 24 months P
imprisonment as the starting point and set aside the original sentence of 10
Q Q
months imprisonment.
R R
43. In the present case, the road chase began when D was seen
S S
crossing the double white lines at Man Kuk Lane, Tseung Kwan O. D then
T drove dangerously on Sheung Ning Road, into a roundabout in the opposite T
direction of the traffic and made a U-turn towards Sheung Ning Road,
U U
V V
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A A
B B
Chung Wa Road and Pui Shing Road. The chase then proceeded to the
C Tseung Kwan O Tunnel. D did not stop before the Tunnel but determined C
to enter it which is a dual way carriageway (towards Kowloon) separated
D D
by double white lines. Inside the Tunnel, D tried to overtake the vehicle in
E front by squeezing between the gap, thus traversing the white lines and E
colliding with other vehicle (V2). During which, D contravened a number
F F
of traffic regulations, namely, speeding, jumping red lights twice and
G cutting across double white lines. Despite repeated police warnings, D G
failed to give obedience.
H H
I 44. The manner of driving of D posed serious risk to all other road I
users in the area at the time, in particular, inside the confined Tseung Kwan
J J
O Tunnel. I had the opportunity to view the footages in court. Inside the
K Tunnel, D drove into the gap between the vehicles. The Car then collided K
with V2 and thereafter, the Car cut across the double white lines inside the
L L
Tunnel. Fortunately, actual injury to persons and damage to property in this
M case was relatively minor. M
N N
45. There were also two passengers on board of the D’s own
O vehicle at the time which obviously exposed to serious risks. In Poon Wing O
Kay6:
P P
Q “One major factor to be considered as an aggravating factor Q
justifying a heavy sentence is where a person has driven with
selfish disregard for the safety of other road users or of his
R R
passengers (or, we would add, of pedestrians) or with a degree of
recklessness : at page 46f d (paragraph 12).”
S S
T T
6
paragraph 10(5).
U U
V V
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A A
B B
46. It happened at around 2317 hours of the day, the traffic
C condition was not light as shown in the footage. C
D D
47. Under caution, D claimed that he tried to evade arrest by the
E police as he did not have any driving licence. E
F F
48. D did not hold any driving licence at the time of the offence.
G He must have fully aware of that. However, he drove out as if he was a G
qualified driver and even took two passengers on board.
H H
I 49. For charge 2, having considered the circumstances of the case, I
I took a starting point of 24 months imprisonment, after one third discount
J J
for the guilty plea, the sentence is 16 months imprisonment.
K K
Charge 3 (Driving an unlicensed vehicle)
L L
M 50. The maximum sentence for driving an unlicensed vehicle, for M
the first conviction, is a fine of $5,000 and imprisonment for 3 months.
N N
O 51. It is submitted by the defence that D did not take notice if the O
vehicle licence was renewed and valid.
P P
Q 52. For charge 3, I take a starting point of 3 weeks imprisonment, Q
after one third discount for the guilty plea, the sentence is 2 weeks
R R
imprisonment.
S S
T T
U U
V V
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A A
B B
Charge 4 (Driving without a valid driving lincence)
C C
53. The maximum sentence for driving without a valid driving
D D
licence, for the first conviction, is a fine of $5,000 and imprisonment for 3
E months. E
F F
54. At the time of the offence, D did not hold any driving licence.
G D was therefore fully aware that he was driving without a valid driving G
licence.
H H
I 55. For charge 4, I take a starting point of 1.5 months of I
imprisonment, after one third discount for the guilty plea, the sentence is 1
J J
month imprisonment.
K K
Charge 5 (Using a motor vehicle without third party insurance)
L L
M 56. The maximum sentence for the offence of using a motor M
vehicle without third party insurance is a fine of $10,000 and imprisonment
N N
for 12 months.
O O
57. In HKSAR v Wong Chi Ming (HCMA 510/1999; unreported,
P P
13 August 1999, at page 5) it was held that the seriousness of the offence
Q of using a motor vehicle without third party insurance “…lies in the Q
possibility of the victims in traffic accidents may be left without any
R R
compensation.”
S S
T T
U U
V V
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A A
B B
58. In the present case, it is shown in the admitted facts that the
C driver and a passenger inside TS 9632 suffered. Though as submitted by C
the defence that they did not seek any medical attention, damage was
D D
caused to vehicle of TS 9632 and fortunate that it was not severe.
E E
59. For charge 5, I take a starting point of 4.5 months
F F
imprisonment, after a one third discount for a guilty plea to this offence,
G the sentence is 3 months’ imprisonment. G
H H
Charge 6 (Resisting police officers in the due execution of their duties)
I I
60. The maximum sentence for resisting police officers in due
J J
execution of their duties is one of 2 years imprisonment.
K K
61. In The Secretary for Justice and Ko Wai Kit, Paul CAAR
L L
12/2001, it is held that:
M M
“22. The sentence to be imposed for such cases must carry a
N heavy deterrent element, for it is vital that those engaged to N
execute police duties are enabled properly to do so. What the
offence will draw in terms of sentence will, as with all offences,
O O
depend on the circumstances.”
P P
62. The footage showed that D abandoned the Car after the
Q collision at the exit of the Tseng Kwan O Tunnel. As shown in the facts, D Q
tried to escape by resisting the interception of two police officers. D
R R
pushed PW3’s chest causing PW3 to lose balance and fall on the ground
S along with D. D continued to resist despite repeated warnings. It was not S
until OC Foam was discharged on D’s face that the police could do him
T T
down. Injuries was also caused to PW3.
U U
V V
- 21 -
A A
B B
C 63. For charge 6, I take a starting point of 6 months imprisonment, C
after one third discount of D’s guilty plea, the sentence is 4 months
D D
imprisonment.
E E
Charges 7 & 8 (Possession of a dangerous drug)
F F
G 64. The maximum sentence for possession of a dangerous drug is G
a fine of $1,000,000 and imprisonment for 7 years.
H H
I 65. D would be sentenced for other offence in this proceeding to I
imprisonment for more than 9 months, section 54A of the Dangerous Drug
J J
Ordinance, Cap 134 therefore does not apply.
K K
66. D was found with a bottle containing 0.48 grammes of
L L
tetrahydrocannabinol and 3.46 grammes of herbal cannabis and in the truck
M of the Car. Under caution, D confessed that the dangerous drugs were for M
self-consumption.
N N
O 67. Having considered the nature and relatively low quantity of O
the dangerous drug, I take a starting point of 3 weeks for each of charges 7
P P
and 8, after one third discount upon guilty plea, the sentence is 2 weeks
Q imprisonment each for charges 7 and 8. Q
R R
S S
T T
U U
V V
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A A
B B
TOTALITY
C C
68. In considering the sentence of charge 2, I have taken into
D D
account the aggravating features of charges 3 to 5. Therefore, for charges
E 2 to 5, which are all traffic related, I order all sentences to be served E
concurrently.
F F
G 69. For charge 6 (resisting police officers), it happened when D G
was approached by the police officers after the driving episode was over.
H H
According to the relevant authorities, the sentence should be consecutive
I to other offences (See Ko Wai Kit, Paul CAAR 12/2001 and Chan Hing I
Tung CAAR 1/2022).
J J
K 70. For charges 7 to 8, which are all dangerous drugs related, I K
order both sentences to be served concurrently.
L L
M 71. The offence of taking conveyance without authority (Charge M
1), the offences which are related to traffic (Charges 2-5), the offence of
N N
resisting police officers (Charge 6) and the offences related to dangerous
O drugs (Charges 7-8), are separate and distinct in nature. Nevertheless, O
bearing in mind the principle of totality, I order that 2 months of the
P P
sentence in charge 1 to run consecutively to the sentence of charges 2 to 5
Q and the balance be served concurrently. The sentence of 4 months Q
imprisonment of charge 6 and 2 weeks imprisonment of charges 7-8 are to
R R
run consecutively with all other charges.
S S
T T
U U
V V
- 23 -
A A
B B
72. The sentence is as follows:
C C
Charge Starting point Discount
D D
after plea
E 1 6 months 4 months 2 months consecutive E
with charges 2-5
F F
2 24 months 16 months Run concurrently
G 3 3 weeks 2 weeks G
4 1.5 months 1 month
H H
5 4.5 months 3 months
I 6 6 months 4 months Consecutive with other I
charges
J J
7 3 weeks 2 weeks Run concurrently,
K 8 3 weeks 2 weeks consecutive with other K
charges
L L
Sentence: 22 months and 2 weeks
M M
N
Disqualification N
O O
73. For charge 2, the Ordinance provides that a person convicted
P of the offence of dangerous driving shall be disqualified for a period of not P
less than 6 months in the case of a first conviction, and for charge 5, there
Q Q
is a mandatory disqualification of not less than 12 months nor more than 3
R years, unless the court for special reasons orders that the person be R
disqualified for a shorter period or that the person not be disqualified.
S S
T 74. I do not see there is any special reason not to disqualify D. T
Having considered the facts of the case, the relevant authorities and D does
U U
V V
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A A
B B
not have any previous convictions both in criminal and traffic record, I
C order that, for charge 2, D be disqualified from driving all classes of C
vehicles for a period of 30 months and as for charge 5, I impose a
D D
disqualification period of 12 months. They are to be run concurrently.
E E
CONCLUSION
F F
G 75. The sentence is 22 months and 2 weeks imprisonment and a G
disqualification period of 30 months.
H H
I I
J J
( K K Leung )
K Deputy District Judge K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 937/2023
C [2024] HKDC 821 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 937 OF 2023
F F
----------------------------
G G
HKSAR
H v H
CHANG Chun-lok, Marcus
I I
----------------------------
J J
Before: Deputy District Judge K K Leung
K K
Date: 8 May 2024
L Present: Ms Annabelle Chan, Senior Public Prosecutor (Ag), for L
HKSAR
M M
Mr Peter Pannu, instructed by Messrs Chow Wong &
N N
Lawyers, assigned by the Director of Legal Aid, for the
O
defendant O
Offence: [1] Taking conveyance without authority（未獲授權而取用
P P
運輸工具）
Q [2] Dangerous driving（危險駕駛） Q
R [3] Driving an unlicensed vehicle（駕駛未領牌車輛） R
[4] Driving without a valid driving licence（駕駛時無有效駕
S S
駛執照）
T T
U U
V V
-2-
A A
B B
[5] Using a motor vehicle without third party insurance（沒
C 有第三者保險而使用汽車） C
[6] Resisting police officers in the due execution of their
D D
duties（抗拒在正當執行職務的警務人員）
E E
[7] - [8] Possession of a dangerous drug（管有危險藥物）
F F
-----------------------------------------
G G
REASONS FOR SENTENCE
H ----------------------------------------- H
I I
1. The defendant (‘D’) pleaded guilty to the following 8 charges:
J J
Charge 1: Taking conveyance without authority, contrary
K K
to section 14(1) of the Theft Ordinance, Cap.
L 210; L
M M
Charge 2: Dangerous driving, contrary to section 37(1) of
N N
the Road Traffic Ordinance, Cap 374;
O O
Charge 3: Driving an unlicensed vehicle, contrary to
P P
section 52(1)(a) and (10)(a) of the Road Traffic
Q Ordinance, Cap 374; Q
R R
Charge 4: Driving without a valid driving licence, contrary
S to section 42(1) and (4) of the Road Traffic S
Ordinance, Cap 374;
T T
U U
V V
-3-
A A
B B
Charge 5: Using a motor vehicle without third party
C insurance, contrary to section 4(1) and (2)(a) of C
the Motor Vehicles Insurance (Third Party
D D
Risks) Ordinance, Cap 272;
E E
Charge 6: Resisting police officers in the due execution of
F F
their duties, contrary to section 36(b) of the
G Offences against the Person Ordinance, Cap 212; G
H H
Charges 7-8:Possession of a dangerous drug, contrary to
I section 8(1)(a) and (2) of the Dangerous Drugs I
Ordinance, Cap 134.
J J
K ADMITTED FACTS K
L L
Charges 1, 3, 4 and 5
M M
2. On 2 May 2023, D sold a private car bearing registration mark
N N
WW 4425 (the ‘Car’) to his friend, PW1. PW1 became the registered
O owner of the Car since then. After PW1 purchased the Car, he did not have O
enough money to purchase a third party insurance for the Car. Thus, PW1
P P
kept the Car at Po Lam Estate Carpark with the car key hidden on the right
Q front tire. Q
R R
3. At all material times:-
S S
(a) PW1 had never given D permission to use the Car;
T T
U U
V V
-4-
A A
B B
(b) The Car did not have a valid vehicle licence;
C C
(c) D was not a holder of any driving licence; and
D D
E (d) The Car had no valid third party insurance in force as E
required under the Motor Vehicles Insurance (Third
F F
Party Risks) Ordinance, Cap 272.
G G
4. On 7 May 2023, D arrived at Po Lam Estate and took the car
H H
key from the right front tire of the Car. D then took the Car for a drive
I without PW1’s permission. I
J J
Charge 2
K K
5. At around 2317 hours on 7 May 2023, while conducting a
L L
patrol on a police motorcycle at Man Kuk Lane (Westbound), PW2 noticed
M D driving the Car. At the time, two passengers were on board of the Car. M
The Car made a U-turn at Man Kuk Lane (Eastbound) by crossing the
N N
double white lines thereat and drove along Sheung Ning Road
O (Southbound). Using the loudhailer, PW2 repeatedly demanded the Car to O
stop. However, D disobeyed PW2’s instructions and drove on.
P P
Q 6. PW2 gave chase and saw the Car sped towards a red traffic Q
light. The Car jumped the said red traffic light and crossed the road
R R
junction of Sheung Ning Road and Ming Shing Road. PW2 switched on
S the beacon light and siren of the Police vehicle forthwith. The Car drove S
into a roundabout in the opposite direction of the traffic and made a U-turn
T T
towards Sheung Ning Road (Southbound). Thereafter, the Car jumped
U U
V V
-5-
A A
B B
another red traffic light at the junction of Sheung Ning Road and Chung
C Wa Road. The Car made another U-turn by crossing the double white lines C
at Pui Shing Road.
D D
E 7. PW2 observed that, the Car was initially driven at a speed of E
about 60-70 km/h (on road sections where the speed limit was 50 km/h).
F F
However, once the Car got on the Tseung Kwan O Tunnel Road (where
G the speed limit was 70 km/h), PW2 noticed that the Car accelerated and G
travelled at a speed reaching 110 km/h. PW2 reported the incident to the
H H
police console, and continued to pursue the Car along Tseung Kwan O
I Road towards the direction of Tseung Kwan O Tunnel. I
J J
8. Towards the end of the chase and inside the Tseung Kwan O
K Tunnel, the Car cut across the double white lines once and thereafter drove K
forcibly into the gap between the private vehicle which was immediately
L L
front of the Car (‘V1’) and another private car bearing registration mark
M TS 9632 which was travelling on the left lane next to the Car (‘V2’). The M
Car then collided with V2 whilst moving forward, resulting in scratches on
N N
V2. Consequently, the driver of V2 suffered from tenderness on the right
O chest wall while the passenger on board of V2 suffered from tenderness on O
the neck. Thereafter, the Car cut across the double white lines inside the
P P
Tunnel again. The aforesaid collision was captured by the CCTV installed
Q at the Tseung Kwan O Tunnel. Q
R R
9. D drove the Car in a dangerous manner since:-
S S
(a) D drove the Car at speeds beyond the speed limits and
T T
in contravention of traffic regulations, ie repeatedly
U U
V V
-6-
A A
B B
cutting across double white lines, driving in the
C opposite direction of the traffic, jumping red traffic C
lights, in disobedience to the Police’s order to stop the
D D
Car and with persistent and reckless disregard for the
E safety of (i) other vehicles and (ii) the passengers on E
board, in order to evade the Police’s pursuit,
F F
investigation and arrest; and
G G
(b) D drove the Car forcibly into the gap between V1 and
H H
V2 and intentionally collided with V2, causing damage
I to V2 and injuries to the driver and passenger on board I
of V2, in disobedience to the Police’s order to stop the
J J
Car and with persistent and reckless disregard for the
K safety of (i) other vehicles and (ii) the passengers on K
board, in order to evade the Police’s pursuit,
L L
investigation and arrest.
M M
Charge 6
N N
O 10. Following the collision, D alighted from the Car near the exit O
of Tseung Kwan O Tunnel and attempted to flee by running towards Kwun
P P
Tong along Tseung Kwan O Road. However, D was intercepted by PW2
Q and PW3 shortly thereafter. While being intercepted, D used his right hand Q
to push PW3’s chest, causing PW3 to lose balance and fall on the ground
R R
along with D, who continued to resist arrest and tried to escape. As a result,
S D caused abrasions to PW3’s right thumb and left elbow. In response to S
D's resistance, PW3 issued repeated warnings and discharged OC Foam on
T T
D’s face to subdue him. The course of events which occurred after the
U U
V V
-7-
A A
B B
aforesaid collision was captured by the CCTV installed inside the Tseung
C Kwan O Tunnel. C
D D
Charges 7 and 8
E E
11. D was arrested. Upon search of the Car with Police Dog
F F
Unit's assistance, the Police found one transparent plastic bag containing
G 3.46 grammes of herbal cannabis (E1) inside the glove box of the Car. G
Further, a bottle containing 0.59 grammes of liquid containing 0.48
H H
grammes of tetrahydrocannabinol (E2) was found inside an orange ‘Nike’
I bag in the trunk of the Car. The Government Chemist subsequently I
confirmed the narcotic contents of E1-2.
J J
K 12. Under caution at scene and in the subsequent cautioned video- K
recorded interview, D admitted taking the Car without PW1’s consent for
L L
fun and drove it in a dangerous manner, including crossing double white
M lines and causing a collision with V2. He claimed that he tried to evade M
arrest by the Police as he did not have any driving licence. D also admitted
N N
possessing E1-2 for self-consumption.
O O
P P
Q Q
R R
S S
T T
U U
V V
-8-
A A
B B
Footages
C C
13. Three video clips capturing the course of events inside the
D D
Tseng Kwan O Tunnel were played in court before sentence:
E E
F F
G Footage 1 The Car drove into the gap between the G
Ch 141 23:18:50-23:18:55 private vehicles V1 and V2. The Car
H H
then collided with V2 which was
I travelling on the left lane. I
(Para 7 of amended summary of facts)
J J
Footage 2 D crossed the double white lines inside
K Ch 122 23:19:06-12:19:08 the middle part of the Tseung Kwan O K
Tunnel.
L L
(Para 7 of amended summary of facts)
M Footage 3 D abandoned the Car. He alighted at the M
Ch 113 23:19:19-23:19:39 exit of the Tseung Kwan O Tunnel. D
N N
struggled with two police officers i.e. the
O police officer who was waiting at the O
exit of the Tunnel (PW3) and the police
P P
officer who was chasing behind D
Q (PW2). Q
R R
S S
T 1 T
File no. 20230507225635.
2
File no. 20230107225232.
3
File no. 20230507231358.
U U
V V
-9-
A A
B B
Photo Album
C C
14. A photo album was submitted to show:
D D
E (1) The scratch mark on the offside front of V2. (Photo 1-2) E
F F
(2) The damage on the nearside front of the Car. (Photo 3-4)
G G
(3) The subject matter of charges 7-8 ie E1-2 and the place
H where E1-2 were found. (Photo 5-11) H
I I
CRIMINAL RECORD OF THE DEFENDANT
J J
15. D has a clear criminal and traffic record.
K K
L MITIGATION L
M M
16. D is now aged 20 and was 19 at the time of the offences. He
N N
is educated up to Form 2. He is the only son in the family. His mother is
O
a full time housewife and his father works in a bank. They live in a private O
unit. At the time of the offence, D was a part -time delivery worker.
P P
Mitigation letters written by D and his family members were submitted.
Q Q
17. It was submitted by Mr Pannu that D had been in detention
R R
since his arrest on 7 May 2023. On the date of sentence, he would have
S been in detention for 12 months. The court was requested not to call for S
reports. Mr Panuu invited the court to impose a custodial sentence and to
T T
set a lenient sentence that would allow his release shortly from prison.
U U
V V
- 10 -
A A
B B
C 18. In respect of charge 1, it was submitted by Mr Pannu that the C
taking of the vehicle was a one-off joyride incident, committed out of
D D
foolishness, and not for committing any crimes. The user of the car from a
E friend (without his consent) is different from stealing vehicles at random E
by using special tools or implements to commit crimes.
F F
G 19. In respect of charge 2, the road chase was not of long duration, G
and not the worst of its kind when compared to some other authorities.
H H
There is no evidence that he was under the influence of drink or drugs.
I Fortunately, no serious injuries were caused to anyone and no major I
damage to property was caused. Of course, there are scratch marks on the
J J
vehicle ahead and the discomfort caused to the two occupants therein, who
K fortunately did not seek nor required any medical treatment. The only K
harm, albeit minor, was to one of the officers who had some abrasions to
L L
his thumb when two officers were trying to apprehend D.
M M
20. Mr Pannu submitted in court that the facts of the present case
N N
might be similar to those in Lam Shun Choi4 DCCC 612/2021, though no
O facts of the cases are the same. However, the present case is not as serious O
as the facts in Ko Wai Kit, Paul CAAR 12/2001, Tang Chen Ming CACC
P P
227/2002 and Lam Shun Choi. The court was invited to consider the
Q relevant factors: (i) D has a clear record (traffic record as well) and is of Q
young age. (ii) He jumped two red lights. (iii) He drove against the traffic
R R
at a roundabout (presumably no vehicles at the time and no one was at peril
S or exposed to harm). (iv) He scratched the side of a vehicle as he tried to S
T T
4
The starting point of sentence is 2 years and 3 months imprisonment.
U U
V V
- 11 -
A A
B B
squeeze past it when he entered the tunnel with some minor damage. (v)
C The occupants only suffered minor discomfort. (vi) The police chase was C
not tedious and for a long duration (5 odd minutes). (vii) No one was
D D
injured in his vehicle. (viii) The officer only sustained minor abrasion when
E apprehending D. E
F F
21. In respect of charges 3 to 5, Mr Pannu submitted that the
G traffic related conduct and the driving manner is not the worst of its kind, G
the court was invited to consider the sentence of charges 3 to 5 to be served
H H
concurrently to each other and concurrently to charge 2.
I I
22. In respect of charge 6, as there being no tariffs in place, the
J J
defence invited the court to adopt a starting point from a fine to 3 months’
K imprisonment. K
L L
23. In respect of charges 7 to 8, the drugs were cannabis and
M cannabis oil, which are soft drugs, as opposed to cocaine and ice. The M
quantity was very small. D stated that it was for his self-consumption, as
N N
he just started experimenting with it one or two months before, and he is
O not an addict. It was submitted that there was no evidence that he had O
consumed alcohol or taken any drugs whilst he was behind the wheels. The
P P
police breath tested the D, and the result was negative for both substances.
Q In any event, he has been detained for 12 months and thus there is no Q
necessity to call for any DATC report. A fine for these two offences or a
R R
short sentence of a starting point of 1 to 3 months for each charge, to be
S served concurrently, will suffice. S
T T
U U
V V
- 12 -
A A
B B
24. As for mandatory disqualification, it was submitted that the
C appropriate period of suspension is left in the good hands of the court, as C
the court may deem appropriate. The court may think that a term of 1 year
D D
suspension may be appropriate since D does not have any previous
E convictions on record. E
F F
25. Finally, the court was urged to exercise leniency in sentence.
G G
SENTENCE
H H
I 26. I have considered the nature of the offences faced by D, the I
facts of the case admitted, the background of D and the mitigation
J J
submitted by the defence.
K K
27. D is now aged 20 years and 4 months. He was 19 at the time
L L
of the offences. I have borne in mind the legal principles in sentencing
M young offenders under the age of 21. I am aware that the restriction on M
imprisonment of young persons under section 109A of the Criminal
N N
Procedure Ordinance, Cap 221. Regards must be given in the
O consideration of rehabilitation and reformation of the young offender. O
Seriousness of the offences must also be given sufficient consideration.
P P
Q 28. In the present case, the offence of charge 6 which D pleaded Q
guilty to, being resisting police officers in due execution of their duties, is
R R
an excepted offence. As such, pursuant to section 109A (1A), section
S 109A(1) does not apply. S
T T
U U
V V
- 13 -
A A
B B
29. In sentencing young offenders, the significant lapse of time
C between the commission of the offence, detention pending sentence and C
the date of sentencing should also be considered. In HKSAR v Chong Chin
D D
Tong and others HCCC 149/20215:
E E
“Young Offenders
F F
Here, there is the additional consideration of a significant lapse of
time between the commission of the offence, the detention of all
G but one of the defendants pending sentence and the date of G
sentencing.”
H H
30. In this case, I must consider the fact that D has been remanded
I I
since 7 May 2023 for almost a year.
J J
31. I find that an immediate custodial sentence is the appropriate
K K
sentence for the present case.
L L
32. I reminded myself that each case must decide on its own facts.
M M
N Charge 1 (Taking conveyance without authority) N
O O
33. The maximum sentence for the offence of taking conveyance
P without authority is 7 years’ imprisonment. P
Q Q
34. There is no sentencing tariff for this type of offence.
R R
S S
T T
5
In HCCC 149/2021, the defendants were charged with robbery, an excepted offence under Schedule 3
of Cap 221.
U U
V V
- 14 -
A A
B B
35. In HKSAR v Andrianiaina Adrien Luck Yu Pau CACC
C 129/2016, given that the taking of the goods van without authority was a C
single offence and that the appellant was of previous good character, the
D D
Court considered that the appropriate starting point for sentence was 9
E months’ imprisonment. The authority of The Queen v Tam, Simon (HCMA E
489/1996 & 490/1996) was referred to:
F F
G “33. Of the sentences imposed in respect of the three offences G
of taking a conveyance without authority, Chan J said:
[11]“ Without setting a guideline for this type of offence, I should
H think that the sentence of 6 to 12 months imposed in the present H
case after a plea cannot be regarded in anyway as wrong in
principle or manifestly excessive.”
I I
J 36. Under caution, D admitted taking the Car without PW1’s J
consent for fun.
K K
L 37. For charge 1, I adopt a starting point of 6 months’ L
imprisonment, after a discount of one-third for the guilty plea, the sentence
M M
is 4 months’ imprisonment.
N N
Charge 2 (Dangerous driving)
O O
P 38. The maximum sentence for dangerous driving is a fine of P
$25,000 and imprisonment for 3 years.
Q Q
R R
S S
T T
U U
V V
- 15 -
A A
B B
39. I have reminded myself of the sentencing principle set out by
C the Court of Appeal in Secretary for Justice v Poon Wing Kay & anor C
[2007] 1 HKLRD 660. The sentencing principle is one of deterrence. The
D D
culpability of the defendant is the dominant factor to be considered. In
E Poon Wing Kay, paragraph 10: E
F F
“(3) It is important for courts to drive home the message that
there may sometimes be extremely grave consequences flowing
G from acts of dangerous driving and it is therefore necessary to G
have in mind a deterrent effect when sentencing in many cases
involving dangerous driving: at p. 46C-E (para. 11). A motor
H vehicle, many may often forget, when not driven to requisite H
standards, can kill or maim. The standards required by the law
I for motorists found in the road traffic legislation and elsewhere I
are there to ensure that all who can come into contact with motor
vehicles (whether fellow motorists, passengers or pedestrians)
J are safe and that their lives are not endangered. J
K
(4) While a list can be drawn up of aggravating and K
mitigating factors, a sentencing court must however look at the
overall circumstances and the overall culpability of the offender.
L In assessing the overall seriousness of a crime, culpability is L
often the dominant factor: at p. 47B (para. 14). It is not a case of
counting the number of aggravating or mitigating factors and
M M
then arriving by mechanical means at the relevant sentence.
Sentencing is not quite that exact an exercise and courts must be
N sufficiently nimble to take into account the overall picture in N
order to arrive at an appropriate sentence. In some cases, the fact
that only some aggravating factors exist, but not others, may still
O bring the case into a very serious category.” O
P P
40. In this case, the D drove dangerously in order to avoid police
Q apprehension. As submitted by the defence, D was nervous and he knew Q
that he did not have a valid driving licence. At the time of the offence, he
R R
did not have any driving licence. Apart from that, I am sure he also knew
S there were dangerous drugs in the Car. S
T T
U U
V V
- 16 -
A A
B B
41. In the case of Secretary for Justice v Ko Wai Kit, Paul CAAR
C 12/2001, the respondent was convicted of dangerous driving and resisting C
police officers in due execution of duties. The respondent in that case fled
D D
from the police and embarked on a crazed journey from Ngau Tau Kok to
E the Kowloon peninsula and he was finally stopped in Tsim Sha Tsui. E
During which, the respondent jumped red lights, collided with motor
F F
vehicles, and with motorcycles, injured a police officer and two civilians
G and failed to obey police commands to stop. The respondent was also G
under the influence of drugs. The Court allowed the Review, adopted the
H H
maximum sentence of 3 years as the starting point and set aside the original
I sentence of 12 months imprisonment. The Court also substituted the I
original period of disqualification of 2 years with one of 5 years.
J J
K 42. In The Secretary for Justice v Chan Hing Tung ( 陳興東 ) K
CAAR 1/2022, the respondent failed to stop before a road block in Kwun
L L
Tong Road and the police gave chase. The respondent did not stop in
M accordance with the police command and committed one traffic offence M
after another, namely, speeding, repeatedly crossing double white lines, as
N N
a result of which, causing other motor vehicles to stop abruptly to avoid
O O
collision and jumping red light twice. A police officer was also injured.
P
The Court allowed the Review, the Court adopted a sentence of 24 months P
imprisonment as the starting point and set aside the original sentence of 10
Q Q
months imprisonment.
R R
43. In the present case, the road chase began when D was seen
S S
crossing the double white lines at Man Kuk Lane, Tseung Kwan O. D then
T drove dangerously on Sheung Ning Road, into a roundabout in the opposite T
direction of the traffic and made a U-turn towards Sheung Ning Road,
U U
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A A
B B
Chung Wa Road and Pui Shing Road. The chase then proceeded to the
C Tseung Kwan O Tunnel. D did not stop before the Tunnel but determined C
to enter it which is a dual way carriageway (towards Kowloon) separated
D D
by double white lines. Inside the Tunnel, D tried to overtake the vehicle in
E front by squeezing between the gap, thus traversing the white lines and E
colliding with other vehicle (V2). During which, D contravened a number
F F
of traffic regulations, namely, speeding, jumping red lights twice and
G cutting across double white lines. Despite repeated police warnings, D G
failed to give obedience.
H H
I 44. The manner of driving of D posed serious risk to all other road I
users in the area at the time, in particular, inside the confined Tseung Kwan
J J
O Tunnel. I had the opportunity to view the footages in court. Inside the
K Tunnel, D drove into the gap between the vehicles. The Car then collided K
with V2 and thereafter, the Car cut across the double white lines inside the
L L
Tunnel. Fortunately, actual injury to persons and damage to property in this
M case was relatively minor. M
N N
45. There were also two passengers on board of the D’s own
O vehicle at the time which obviously exposed to serious risks. In Poon Wing O
Kay6:
P P
Q “One major factor to be considered as an aggravating factor Q
justifying a heavy sentence is where a person has driven with
selfish disregard for the safety of other road users or of his
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passengers (or, we would add, of pedestrians) or with a degree of
recklessness : at page 46f d (paragraph 12).”
S S
T T
6
paragraph 10(5).
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A A
B B
46. It happened at around 2317 hours of the day, the traffic
C condition was not light as shown in the footage. C
D D
47. Under caution, D claimed that he tried to evade arrest by the
E police as he did not have any driving licence. E
F F
48. D did not hold any driving licence at the time of the offence.
G He must have fully aware of that. However, he drove out as if he was a G
qualified driver and even took two passengers on board.
H H
I 49. For charge 2, having considered the circumstances of the case, I
I took a starting point of 24 months imprisonment, after one third discount
J J
for the guilty plea, the sentence is 16 months imprisonment.
K K
Charge 3 (Driving an unlicensed vehicle)
L L
M 50. The maximum sentence for driving an unlicensed vehicle, for M
the first conviction, is a fine of $5,000 and imprisonment for 3 months.
N N
O 51. It is submitted by the defence that D did not take notice if the O
vehicle licence was renewed and valid.
P P
Q 52. For charge 3, I take a starting point of 3 weeks imprisonment, Q
after one third discount for the guilty plea, the sentence is 2 weeks
R R
imprisonment.
S S
T T
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A A
B B
Charge 4 (Driving without a valid driving lincence)
C C
53. The maximum sentence for driving without a valid driving
D D
licence, for the first conviction, is a fine of $5,000 and imprisonment for 3
E months. E
F F
54. At the time of the offence, D did not hold any driving licence.
G D was therefore fully aware that he was driving without a valid driving G
licence.
H H
I 55. For charge 4, I take a starting point of 1.5 months of I
imprisonment, after one third discount for the guilty plea, the sentence is 1
J J
month imprisonment.
K K
Charge 5 (Using a motor vehicle without third party insurance)
L L
M 56. The maximum sentence for the offence of using a motor M
vehicle without third party insurance is a fine of $10,000 and imprisonment
N N
for 12 months.
O O
57. In HKSAR v Wong Chi Ming (HCMA 510/1999; unreported,
P P
13 August 1999, at page 5) it was held that the seriousness of the offence
Q of using a motor vehicle without third party insurance “…lies in the Q
possibility of the victims in traffic accidents may be left without any
R R
compensation.”
S S
T T
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A A
B B
58. In the present case, it is shown in the admitted facts that the
C driver and a passenger inside TS 9632 suffered. Though as submitted by C
the defence that they did not seek any medical attention, damage was
D D
caused to vehicle of TS 9632 and fortunate that it was not severe.
E E
59. For charge 5, I take a starting point of 4.5 months
F F
imprisonment, after a one third discount for a guilty plea to this offence,
G the sentence is 3 months’ imprisonment. G
H H
Charge 6 (Resisting police officers in the due execution of their duties)
I I
60. The maximum sentence for resisting police officers in due
J J
execution of their duties is one of 2 years imprisonment.
K K
61. In The Secretary for Justice and Ko Wai Kit, Paul CAAR
L L
12/2001, it is held that:
M M
“22. The sentence to be imposed for such cases must carry a
N heavy deterrent element, for it is vital that those engaged to N
execute police duties are enabled properly to do so. What the
offence will draw in terms of sentence will, as with all offences,
O O
depend on the circumstances.”
P P
62. The footage showed that D abandoned the Car after the
Q collision at the exit of the Tseng Kwan O Tunnel. As shown in the facts, D Q
tried to escape by resisting the interception of two police officers. D
R R
pushed PW3’s chest causing PW3 to lose balance and fall on the ground
S along with D. D continued to resist despite repeated warnings. It was not S
until OC Foam was discharged on D’s face that the police could do him
T T
down. Injuries was also caused to PW3.
U U
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A A
B B
C 63. For charge 6, I take a starting point of 6 months imprisonment, C
after one third discount of D’s guilty plea, the sentence is 4 months
D D
imprisonment.
E E
Charges 7 & 8 (Possession of a dangerous drug)
F F
G 64. The maximum sentence for possession of a dangerous drug is G
a fine of $1,000,000 and imprisonment for 7 years.
H H
I 65. D would be sentenced for other offence in this proceeding to I
imprisonment for more than 9 months, section 54A of the Dangerous Drug
J J
Ordinance, Cap 134 therefore does not apply.
K K
66. D was found with a bottle containing 0.48 grammes of
L L
tetrahydrocannabinol and 3.46 grammes of herbal cannabis and in the truck
M of the Car. Under caution, D confessed that the dangerous drugs were for M
self-consumption.
N N
O 67. Having considered the nature and relatively low quantity of O
the dangerous drug, I take a starting point of 3 weeks for each of charges 7
P P
and 8, after one third discount upon guilty plea, the sentence is 2 weeks
Q imprisonment each for charges 7 and 8. Q
R R
S S
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A A
B B
TOTALITY
C C
68. In considering the sentence of charge 2, I have taken into
D D
account the aggravating features of charges 3 to 5. Therefore, for charges
E 2 to 5, which are all traffic related, I order all sentences to be served E
concurrently.
F F
G 69. For charge 6 (resisting police officers), it happened when D G
was approached by the police officers after the driving episode was over.
H H
According to the relevant authorities, the sentence should be consecutive
I to other offences (See Ko Wai Kit, Paul CAAR 12/2001 and Chan Hing I
Tung CAAR 1/2022).
J J
K 70. For charges 7 to 8, which are all dangerous drugs related, I K
order both sentences to be served concurrently.
L L
M 71. The offence of taking conveyance without authority (Charge M
1), the offences which are related to traffic (Charges 2-5), the offence of
N N
resisting police officers (Charge 6) and the offences related to dangerous
O drugs (Charges 7-8), are separate and distinct in nature. Nevertheless, O
bearing in mind the principle of totality, I order that 2 months of the
P P
sentence in charge 1 to run consecutively to the sentence of charges 2 to 5
Q and the balance be served concurrently. The sentence of 4 months Q
imprisonment of charge 6 and 2 weeks imprisonment of charges 7-8 are to
R R
run consecutively with all other charges.
S S
T T
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A A
B B
72. The sentence is as follows:
C C
Charge Starting point Discount
D D
after plea
E 1 6 months 4 months 2 months consecutive E
with charges 2-5
F F
2 24 months 16 months Run concurrently
G 3 3 weeks 2 weeks G
4 1.5 months 1 month
H H
5 4.5 months 3 months
I 6 6 months 4 months Consecutive with other I
charges
J J
7 3 weeks 2 weeks Run concurrently,
K 8 3 weeks 2 weeks consecutive with other K
charges
L L
Sentence: 22 months and 2 weeks
M M
N
Disqualification N
O O
73. For charge 2, the Ordinance provides that a person convicted
P of the offence of dangerous driving shall be disqualified for a period of not P
less than 6 months in the case of a first conviction, and for charge 5, there
Q Q
is a mandatory disqualification of not less than 12 months nor more than 3
R years, unless the court for special reasons orders that the person be R
disqualified for a shorter period or that the person not be disqualified.
S S
T 74. I do not see there is any special reason not to disqualify D. T
Having considered the facts of the case, the relevant authorities and D does
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A A
B B
not have any previous convictions both in criminal and traffic record, I
C order that, for charge 2, D be disqualified from driving all classes of C
vehicles for a period of 30 months and as for charge 5, I impose a
D D
disqualification period of 12 months. They are to be run concurrently.
E E
CONCLUSION
F F
G 75. The sentence is 22 months and 2 weeks imprisonment and a G
disqualification period of 30 months.
H H
I I
J J
( K K Leung )
K Deputy District Judge K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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