HKSAR v. HO CHI LUN

HCCC 101/2025

[2026] HKCFI 3905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 101 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before Magistrate Ms. Frances Leung to one count of trafficking in a dangerous drug[1] and one count of dangerous driving[2] and was committed, on 20^th March 2025, to the Court of First Instance for sentence. He confirmed his pleas and admission to the Summary of Facts before me, and his convictions were duly recorded.

2.  Particulars of the trafficking charge (Count 1) are that the defendant on 11^th July, 2023, near parking meter No. 13673B, Essex Crescent, Kowloon, unlawfully trafficked in a dangerous drug, namely 110.33 grammes of a solid containing 75.59 grammes of cocaine.

3.  Particulars of the dangerous driving charge (Count 2) are that he on the same day, drove a motor vehicle, namely, a private car bearing registration mark XU 5317, on a road dangerously.

FACTS

4.  At around 10:39pm on 11^th July 2023, shortly after the defendant had parked the Vehicle on Yuk Yat Street near Lok Shan Road in To Kwa Wan, a police vehicle went up and stopped diagonally at the right front of the defendant’s vehicle.  Plainclothes police officers approached the defendant’s vehicle, knocked on his window and gestured for him to come out.

5.  The defendant saw the officers but did not comply and instead reversed his car and rammed it into another police vehicle that was stopped behind his car.  An officer tried to pull open the defendant’s car door but was unsuccessful.  He smashed the window of the right rear passenger door and made repeated demands for the defendant to stop the car.  The defendant did not comply and proceeded to ram it into the police vehicle in front.  Car camera footages show the defendant then pushed away the police vehicle and sped off along Yuk Yat Street.  Both the police vehicles were damaged with debris scattered on the street.  

6.  The defendant drove at high speed, ignoring a red traffic light when driving along Kwei Chow Street into To Kwa Wan Road.  Pedestrians had to stop in the middle of the road to make way for the defendant’s car.  The defendant cut lane abruptly on To Kwa Wan Road to avoid traffic, and ignored another red light at the junction of Shing Kai Road and Muk Tai Street.  

7.  Through the video camera installed in the defendant’s own vehicle, which also recorded sound, it can be heard that while the defendant was driving, he spoke to an unknown person over the phone, saying that he had been trapped or tricked by others; that there was a bunch of cops and he was trying to escape; that he had ‘his stuff’ with him in his car, and asked if he should throw them away.  He then said he will find somewhere to throw them away.  The defendant also reported his whereabouts and said that he was seeing police beacons everywhere.  

8.  At around 10:48pm, the defendant stopped outside a park on Essex Crescent in Kowloon Tong and threw the following items on to the ground next to his car:

(a) A plastic bag containing four resealable plastic bags, which contained a total of 95.1g solid containing 64.6g cocaine;

(b) A resealable plastic bag containing 16 resealable plastic bags, which contained a total of 2.53g solid containing 2.35g cocaine; and

(c) A resealable plastic bag containing 80 resealable plastic bags, which contained a total of 12.7g solid containing 8.64g cocaine.

9.  There were a total of 100 bags containing all the particularized cocaine, with an estimated street value of between $118,605 (in powder form) and $131,734 (in crack form).

10.  Having dumped the dangerous drugs, the defendant got out and climbed over a fence and into the park, but then returned to the car briefly.  He then ran away, but was shortly apprehended by police officers at the nearby junction of Cumberland Road and Surrey Lane.  

11.  Upon search, the defendant had on his person, among other things, 2 mobile phones (each with a SIM card inside); the car key; and a wallet with cash of HK$27,090 and RMB1,000.

12.  As mentioned, the defendant’s driving was caught on his own car’s video camera.  Footages show that the defendant had driven dangerously for about 6,790 meters.  

13.  By his pleas and admission to the Summary of Facts, the defendant had accepted that he had unlawfully trafficked in the dangerous drugs that he was in possession of, and that he had driven dangerously at the material time.  

PREVIOUS CONVICTIONS

14.  The defendant has 8 previous convictions from 2 court appearances.  The first set are dated 11^th April 2012, when he was sentenced to a concurrent term of 9 months’ imprisonment for the offences of possession of false instruments and attempted fraud.

15.  The other set of convictions are dated 22^nd January 2015.  He was sentenced to 4 years’ imprisonment for one charge of trafficking in dangerous drugs; 10 months’ imprisonment for dangerous driving; 6 months for criminal damage; 2 months for resisting a police officer; fined $3,000 and $5,000 for driving without a valid driving licence and using a motor vehicle on a road against third party risks, respectively.  

BACKGROUND AND MITIGATION

16.  The defendant was born in June 1986 and is 40 years old.  He was educated up to Form 3 level.  He was working as a stage assistant before he was laid off because of the pandemic. He had since been working as a freelance driver, earning roughly $20,000 per month.  

17.  The defendant is married with two sons aged 5 and 4.  Mr. Chan, counsel for the defendant, told the court that he committed the crime to put food on the table for his family during the financially difficult times of the pandemic.  

18.  Mr. Chan points to the fact that the contents of the video footages that recorded the defendant making a phone call while escaping from the police suggests that he was seeking instructions from someone who appeared to have the authority or ownership of the dangerous drugs in the vehicle, which point to the fact that the defendant was merely a courier of the drugs.

19.  Mr. Chan also points to the lack of drug trafficking paraphernalia in the vehicle suggesting the defendant’s limited involvement in the trafficking, and that he did not have final control over the drugs, nor was he in a management position.

20.  As to this being the defendant’s second trafficking in dangerous drugs conviction, Mr. Chan points out that the previous conviction was some 8 years ago and that the defendant had been a law-abiding person until the present incident, working diligently and assuming the responsibilities of a father and a husband.

21.  In relation to the dangerous driving charge, Mr. Chan fairly accepts that the defendant’s driving was “unquestionably and unequivocally dangerous”, and that it is fortunate that no one had been injured or killed despite his driving dangerously.  Mr. Chan also accepts that a custodial sentence and disqualification is unavoidable.

22.  The defendant, his family members, and pastor from his church wrote to seek leniency from the court, speaking to how the defendant is remorseful and has always been a caring husband, son and father, and how the family has been suffering from his incarceration.

SENTENCING

Count 1: trafficking in 75.59g of cocaine

23.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is life imprisonment and a $5 million fine.

24.  The sentencing approach laid down in Herry Jane Yusuph[3], together with the updated sentencing guidelines in Huang Ruifang[4] are applied as follows.

Step 1: The applicable guideline tariff bands

25.  For 75.59 grammes of cocaine, the applicable guideline tariff band is “8 to 12 years’ imprisonment”.

Step 2: The defendant’s role and culpability

26.  It is trite law that, for the defendant who can be shown by direct or circumstantial evidence to be dealing in dangerous drugs to others as an “actual or direct trafficker” in the sense of dissemination on the streets, his culpability is higher than that of the simple courier or storekeeper[5].

27.  In the present case, the dangerous drugs were contained in 100 different bags; the defendant was driving around with the drugs inside his vehicle before he was intercepted; he was calling someone to meet up just before the police vehicle stopped in front of his to cut him off; and it can be heard in his own car’s video recording that while he was seeking instructions whether to dump the drugs, he talked about a few other deliveries that he had made earlier.

28.  Given the defendant’s movement on the night, the contents of his conversation, and the manner the dangerous drugs were kept in his vehicle, I find that the only reasonable inference must be thatthe defendant was engaged in direct trafficking of the drugs by way of their dissemination in the streets, being “the end result of the activities of the storekeeper or courier”[6], and the choice of the notional starting point must reflect this added culpability.

Step 3: The relevant band within the guidelines

29.  An arithmetical application of the guideline tariff would yield a starting point of 8 years and 8 months’ imprisonment.  I will enhance this sentence by 6 months for the defendant being an actual or direct trafficker, leading to a sentence of 9 years 2 months.  

Step 4: Aggravating factors

30.  This is the defendant’s second conviction for trafficking in dangerous drugs.  

31.  Mr. Chan refers to the case of HKSAR v Har Tsz Yui [2020] 1 HKLRD 307, where an enhancement of 7 months was reduced to 4 months on appeal.  There the gap between two similar convictions was 3.5 years.  The Court of Appeal allowed the appeal on the basis that the original enhancement would have represented a starting point for more than double the amount of dangerous drugs that the appellant was actually found in possession of.

32.  As Mr. Chan pointed out, the defendant’s previous similar conviction was in 2015, being 11 years ago (8 years if counting the date of the commission of the present offences).  Given the lapse of time, but on the basis of this being the second time the defendant had committed such a serious offence, I find that I must enhance his present sentence by 4 months for further deterrence, taking the sentence up to 9 years 6 months.

Step 5: Mitigating factors

33.  Mr. Chan referred to the multiple non-prejudicial statements the defendant had made, conceded that they were found to have been of no practical value by the authorities, but urged the court to grant him a discount nonetheless, since the defendant had identified the person with whom he had the phone conversation by name, and provided details which led to the police holding a cautioned interview with that person.

34.  I do find that the defendant’s provision of the information involved a certain degree of risk to himself despite them being of no practical use.  The court must always encourage those in a position to assist to do so by recognizing genuine efforts to help, and grant a reasonable discount depending on the circumstances.  

35.  For his effort, I find that a 3 month discount is warranted, taking the sentence down to 9 years 3 months.  

36.  The other mitigating factor is the defendant’s timely plea of guilty, for which he is granted the usual one-third discount, resulting in a sentence of 6 years 2 months.

Step 6: Totality

37.  I find this sentence fair, just and balanced.  Since there is another sentence that the defendant is facing, the matter of totality will be considered again below.  

Count 2: Dangerous Driving

38.  The maximum penalty on conviction upon indictment is 3 years’ imprisonment and a level 4 fine, plus disqualification for not less than 2 years for a second or subsequent conviction, subject only to special reasons.  Mr. Chan confirmed that there are no such special reasons in relation to the disqualification.

39.  In the case of HKSAR v Kwan Wan Ki [2020] 5 HKLRD 433, the Court of Appeal reiterated that one of the basic sentencing principles for offences involving dangerous driving is that the court has to impose deterrent sentence in cases with appalling facts, and that,

“30. In respect of sentencing for dangerous driving, the main concern of the court is the culpability of the defendant’s dangerous driving and the seriousness of the consequences.”

40.  In the present case, the defendant drove dangerously to escape from the police.  He rammed into two vehicles in order to make room for his escape, while knowing that they were vehicles used by the police.  More importantly, his driving caused a police officer to have to jump out of the way of the defendant’s vehicle in order to avoid being hit.  The video footage shows the defendant just narrowly missing the officer while he was leaping out of the way.

41.  The defendant then drove forward at relatively high speed, passing very closely behind a worker pushing a large wooden trolley in the middle of the road.  He then ran the red light at a T-junction, causing two pedestrians to have to stop while walking on the pedestrian crossing.  

42.  After making the right turn, he continued to drive at a relatively high and unsafe speed while crisscrossing between lanes.  He managed to race onto the flyover that led to Waterloo Road and eventually Kowloon Tong.

43.  It is, however, arguable that once he felt he had shaken off the police officers, his manner of driving was not particularly dangerous, merely going at a relatively high speed, which, when using a margin of error most favourable to the defendant, would be about 2 to 18 km/h above the relevant speed limits.  

44.  Be that as it may, with the way that the defendant had rammed his car into the two police vehicles; how he drove forward without any regard for the police officer who was directly in front of his vehicle, and the fact that he drove dangerously in order to avoid being apprehended for committing a serious criminal offence, I find that this is a dangerous driving case with appalling facts, and a deterrent sentence is called for.  

45.  I find that a proper starting point in the circumstances is that of 2 years 2 months’ imprisonment.  Given that this is his second conviction for dangerous driving, but bearing in mind that it was some time ago, I find that there should be an enhancement of 1 month, taking the sentence up to 2 years 3 months.  

46.  The defendant is granted the full one-third discount for his guilty plea, leading to a sentence of 18 months’ imprisonment.  

OVERALL TOTALITY

47.  The next issue to deal with is the matter of the overall totality for the two sentences.  In deciding whether the two sentences should be served concurrently or consecutively, I have in mind the following principles as adopted by the Hong Kong Court of Appeal in HKSAR v Ngai Yiu Ching CACC 107/2011:

“26. Finally there is a decision of the New South Wales Court of Criminal Appeal inCahyadi v The Queen 168 A Crim R 41. At page 47, paragraph 27 Howie J summarized the legal position in a way which we would adopt:

‘…… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.’ (my emphasis)”

48.  In the present case, the sentence for the trafficking in dangerous drugs cannot comprehend and reflect the criminality of the dangerous driving offence, although the latter very much arose out of the defendant’s commission of the former.  The defendant did not have to flee, and he did not have to flee by driving dangerously.  He had chosen to do so, endangering the safety of the police officers and other road users in the process.  

49.  Taking a step back, I find that the proper sentence in the circumstances is for 13 months of the sentence for the dangerous driving be served consecutively to the trafficking sentence, resulting in a total sentence after plea of 7 years 3 months’ imprisonment.  

DISQUALIFICATION

50.  This is the defendant’s second conviction for dangerous driving, his previous conviction is dated 22^nd January 2015, which is over 5 years before his commission of the present offence in 2023.

51.  Pursuant to section 37(3), “The court or magistrate may deal with the conviction of an offence as a first conviction if, as at the date on which the offence was committed, at least 5 years have elapsed since the person’s last conviction under subsection (1).”

52.  Given the use of the word ‘may’ in the provision, this is a discretionary power to be exercised and not mandatory.

53.  I find that given the circumstances of his commission of the present dangerous driving offence, I should exercise my discretion, which I do, and not deal with his present conviction as a first conviction.

54.  As such, I order the defendant to be disqualified pursuant to s.37(2A)(b) for a period of 5 years, which is, of course, “not less than 2 years”.  The length of this disqualification period is as a result of the appalling facts of his dangerous driving and the need for deterrence.