HKSAR v. PANG HO YIN, PATRICK

DCCC 1022/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1022 OF 2011

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Reasons for Sentence

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1. The defendant pleaded guilty to the following 8 charges:

Charge 1

Dangerous Driving, contrary to s.37(1) of the Road Traffic Ordinance, Cap.374 (“RTO”).

Charge 2

Driving a motor vehicle without a valid vehicle licence, contrary to s.52(1)(a) and (10)(a)[1] of the RTO.

Charge 3

Using a motor vehicle without third party insurance, contrary to ss.4(1) and 4(2)(a)[2] of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272.

Charges 4 and 5

Assaulting a Police officer, contrary to s.36(b) of the Offences Against the Person Ordinance, Cap.212.

Charge 6

Resisting a Police officer in the due execution of his duty, contrary to s.36(b) of the Offences Against the Person Ordinance, Cap.212.

Charge 7

Possession of a dangerous drug, contrary to s.8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

Charge 8

Failing to surrender to custody without reasonable cause, contrary to s.9L(1) and (3) of the Criminal Procedure Ordinance, Cap.221.

Summary of Facts

2. The defendant was the driver of private motor vehicle MU8676 at the material time.

Charge 1: Dangerous Driving

3. MU8676 was spotted by ASGT 11330 (PW3) to be speeding along San Tin Highway near Pok Wai, Yuen Long at about 9:35pm on 21^st April 2011 at a speed of about 120 kph. Since the speed limit was 100 kph, PW3 switched on his siren and tried to order MU8676 to pull up at the road shoulder.

4. Instead of slowing down, the defendant ignored PW3 and accelerated to about 150 kph, weaving from lane to lane, cutting double white lines abruptly and overtook a double decker bus and a medium goods vehicle causing them to have to brake urgently.

5. Within a short time, MU8676 came up to the Pok Oi Interchange where 2 other cars had stopped for traffic. MU8676 ran into the rear of PW2’s vehicle, causing it to move forward and running into the rear of the car in front driven by PW1.

Charge 4, 5 & 6: Assaulting and/or resisting a Police Officer

6. MU8676 came to a halt after the collision and 3 males were seen coming out of the vehicle at once. The defendant driver was one of them.

7. PC34957 (PW4) kept his eyes on the defendant whom he saw alighting from the driver’s seat and intercepted him at a bush near the entrance to Pok Oi Hospital. The defendant and one of the other 2 males put up a violent struggle against PC10989 (PW8: charge 6), and assaulted PW4 and 2 other Police officers (including PC 20997 PW6: charges 4 & 5) who were trying to control them. They were eventually subdued, handcuffed and arrested. PW4 and PW6 sustained minor injuries in the process.

Presence of illicit substance in the defendant’s urine[3] (charge 1)

8. The defendant was later examined by a doctor who found that the defendant had a Glasgow Coma Score of 14/15 as at 10:58pm. Methamphetamine and its metabolite and amphetamine were detected in the defendant’s urine which was collected at 9:04am on 22^nd April.

Charge 7: possession of a dangerous drug

9. The defendant was carrying a black bag at the time of his arrest. Inside the bag were found some crystalline substance, one piece of transparent plastic sheet, one piece of drinking straw, one cigarette box containing cigarettes, one packet of crystalline substance and one mini digital scale.

10. From the outer pocket of that bag, Police found a transparent plastic bag, a plastic spoon and an identity card of the defendant. There were also some crystalline substance and some transparent plastic sheets discarded on the ground next to the left foot of the defendant.

11. Upon examination by the Government Chemist, a total of 9.36g of methamphetamine hydrochloride was identified as present in the various crystalline substances and on the plastic sheets found.

Charge 2 and 3: no valid vehicle licence, no 3^rd party insurance

12. Upon investigation, it was found that the vehicle licence of MU8676 had expired on 1^st January 2011and that the vehicle was being used without any third party insurance.

Charge 8: failing to surrender to custody

13. Subsequent to the defendant’s arrest, he was brought in front of a magistrate on 27^th April 2011. The case was adjourned to 13^th December 2011 for mention and the defendant was granted bail. The defendant failed to appear on that day. Bail was revoked and a warrant of arrest was issued. The defendant also did not appear in the District Court on the scheduled trial date on 6^th January 2012.

14. It was not until 24^th May 2013 that the defendant was located and re-arrested outside Shui Choi House, Tin Shui Estate, Tin Shui Wai.

Previous Convictions

15. The defendant had been convicted on 16 previous occasions for 23 offences. Of those, 12 related to dangerous drugs and 2 related to resisting or assaulting a Police officer. The defendant also has 26 fixed penalty records.

16. The defendant was disqualified from driving for a period of 12 months on 27^th May 2013 for the offence of failing to give information on demand. I will have to decide on how the new disqualification periods should be imposed.

Mitigation

17. The defendant is 37 and educated up to Form 3 level. He had been working as a transportation worker earning about $8,000 per month. The defendant is currently on medication for kidney disease. He resides with his girlfriend and 6 year old daughter in Tin Shui Wai. The defendant admits that he is an inactive triad member and that he is an abuser of the dangerous drug ‘ICE’.

18. Mr. Lam for the defendant pointed out that the Glasgow Coma Test conducted on the defendant after his arrest showed the defendant must have been alert and conscious when he was driving. He might have taken drugs but it did not affect his driving skill. Mr. Lam is perhaps unaware that one of the effects of ICE have on the human brain is actually heightened alertness which can last for hours.

19. I am told that although MU8676 was registered in the defendant’s name, it was the defendant’s friend who put up with the money for the purchase of the vehicle. This friend was one of the other 2 males in the vehicle on that day.

20. According to Mr. Lam’s instructions, this friend left the car at the defendant’s home for keeping and went to China. On the day of the incident, the defendant had gone to Lok Ma Chau to pick up his friend returning from China. The defendant had asked to buy the drugs in question and so he brought along with him the mini digital scale to make sure that he was given the correct quantity. It was on their way back to the defendant’s home from Lok Ma Chau that they were intercepted and eventually arrested.

21. Mr. Lam submitted that the defendant did not have the use of the car for very long, just from the defendant’s home to Lok Ma Chau and then back to his home. The trip involved a short distance since the defendant was living in Yuen Long.

22. In relation to the charges of assaulting or resisting a Police officer, it is Mr. Lam’s submission that according to medical reports, the 2 Police officers sustained minor injuries. There was no bleeding and they were given sick leave of 1 or 2 days.

23. In relation to the failing to surrender charge, it is Mr. Lam’s submission that the defendant did in fact show up in court for the December 2011 hearing, but he was late because he had mixed up the date with another case. The defendant made enquiry at the registry and they told him to come back the following day. The defendant did not return the following day because he wanted to take care of his younger son who was born earlier in August. The intention to abscond was only formed after the missed hearing.

24. The prosecution referred to the case HKSAR v Chan Tai Wah, CACC 476/2011 to ask the court to consider the risk of the drugs that was in the defendant’s possession of being disseminated into the community, the latent risk factor, when sentencing the defendant on the possession of dangerous drugs charge.

25. Mr. Lam submits that based on the multiple previous convictions for possession of dangerous drugs and the defendant’s admission that he is a drug addict, as well as the ability of the defendant to pay for the dangerous drugs which had cost him about $2,000, the court should not find that there is a latent risk of re-distribution.

26. Mr. Lam referred to various cases to assist the court in passing the appropriate sentence for the different charges.

Sentence

Charge 1

27. The maximum sentence for dangerous driving is a level 4 fine and imprisonment for 3 years. There is also a mandatory period of disqualification for not less than 6 months for a first offender. This is the defendant’s first dangerous driving conviction.

28. It is the prosecution’s case that the defendant committed this offence in circumstances of aggravation under s.37(2E)(b) of the RTO, namely, that there was found methamphetamine and its metabolite and amphetamine in the urine collected from the defendant at 9:04am on 22^nd April 2011.

29. That being the case, the maximum term of imprisonment is increased by 50% to that of 4 and a half years’ imprisonment (54 months’ imprisonment) and the period of disqualification is also adjusted accordingly to that of not less than 9 months.

30. The defendant’s speeding was for a relatively short time of around 1 odd minute (the defendant’s car was spotted at 9:35pm and the collisions happened at around 9:36pm). The damage to PW1 and PW2’s cars is expensive but it has to be taken into account that one is a Porsche and the other a Mercedes Benz. The defendant’s driving did cause a double decker bus and a medium goods vehicle to have to brake abruptly and he did cut through double white lines, but again, that was over a short period of time and even at 150kph, the car could only have travelled around 2.5km. I find that the defendant’s dangerous driving was not the worst of its kind. Having said that, it was fortunate that his driving did not cause the double decker bus to be involved in a collision or the consequences could have been much worse.

31. I find that based on the presence of methamphetamine upon examination of his urine sample taken at 9:04am on 22^nd April 2011, which was some 11 hours after the collision, the defendant must have committed the dangerous driving offence with some concentration of methamphetamine in his body. The offence was therefore committed under circumstances of aggravation pursuant to s.37(2E)(b) of the RTO. As such, s.37(2D) applies and the maximum sentence is increased by 50%.

32. Taking into consideration the increased maximum, I will adopt a starting point of 3 years’ imprisonment, apply a one third discount in recognition of the defendant’s guilty plea, and sentence the defendant on this charge to 24 months’ imprisonment.

33. The defendant is disqualified from driving or obtaining a license for a period of 2 years. This disqualification commences from the date of conviction.

34. Pursuant to s.72A(1A), the defendant is ordered to attend and complete a driving improvement course in accordance with the time frame as set out in s.72A(3C)(b) of the RTO.

Charge 2

35. The maximum sentence for a first conviction under s.52(10)(a) is that of a fine of $5,000 and 3 months’ imprisonment. This is a first criminal conviction for the defendant under s.52(10)(a). The defendant however has on 17 previous occasions failed to display a valid vehicle licence on his motor vehicle and been summonsed for the offence.

36. I will adopt a starting point of 3 months’ imprisonment, reducing it by one third for the defendant’s guilty plea and sentence him to 2 months’ imprisonment for charge 2.

Charge 3

37. The maximum sentence is a fine of $10,000 and 12 months’ imprisonment, plus a mandatory period of disqualification being not less than 12 months nor more than 3 years from the date of conviction.

38. 3^rd party insurance is important to protect other road users should an accident occur and they are injured. Without this protection they are exposed to the possibility of having no compensation.

39. I will adopt a starting point of 6 months’ imprisonment, discounting it to that of 4 months’ imprisonment upon the defendant’s guilty plea.

40. Pursuant to s.4(2)(a) of Cap.272, the defendant is disqualified from holding or obtaining a licence to drive a motor vehicle for 2 years from the date of conviction.

Charge 4,5,6

41. The maximum sentence for these 3 charges is 2 years’ imprisonment.

42. In the case of Secretary for Justice v Ko Wai Kit, CAAR 12 of 2001, the defendant was convicted of dangerous driving and resisting Police officers in due execution of duties. The defendant’s resistance was violent and occasioned injury to several officers. The Court of Appeal found that the correct starting point was a term of 18 months’ imprisonment. The Court found that since the resisting arrest offence was not part and parcel of the dangerous driving offence, their sentences should be served consecutively.

43. In our present case, the assault and the resisting was by way of “violent struggle”. The injuries suffered by the 2 officers in charge 4 and 5 are minor. Nevertheless, the sentence passed on the defendant must have a heavy deterrent element. Furthermore, the defendant has 2 similar previous convictions, although they were back in 2003 and 2004.

44. Given the circumstances, I find that a proper starting point is that of 15 months’ imprisonment. The defendant is sentenced to 10 months’ imprisonment for each of charges 4, 5 and 6.

Charge 7

45. The maximum sentence for the possession of dangerous drugs is that of a fine of $1,000,000 and 7 years’ imprisonment. Since the defendant is also convicted for other offences in this case that would result in imprisonment of more than 9 months, s.54A(1) of the Dangerous Drugs Ordinance does not apply and there is no need to call for a Drug Addiction Treatment Centre Report prior to sentencing the defendant for this charge.

46. The drugs involved are a total of 9.36g of methamphetamine hydrochloride, commonly known as ‘ICE’. It is not disputed by either the prosecution or the defence that the usual range of sentence for possession of dangerous drugs is that of between 12 and 18 months’ imprisonment.

47. The prosecution submits that because of the quantity of ICE that was in the defendant’s possession, the presence of the mini digital scale and the use of plastic sheets to hold the drugs, there was a latent risk of re-distribution and the eventual sentence should be enhanced.

48. Mr. Lam for the defendant submits that the defendant is a drug addict, as evidenced by his multiple previous convictions for possession of dangerous drugs and his being sent to Drug Addiction Treatment Centre for treatment. His latest possession of dangerous drugs conviction was in July 2009.

49. The defendant has one previous conviction for trafficking in dangerous drugs back in 2005 when he was sentenced to 12 months’ imprisonment. Since then he had been convicted on 2 occasions to possession of dangerous drugs.

50. In the admitted facts on which this conviction is based, there is no evidence as to what the street value of 9.36g of ICE was at the material time, nor is there evidence as to what the usual amount of consumption by an addict of ICE would be. I find that on the evidence I have before me, I am not able to find that there would have been a risk to society of the drugs being redistributed and finding their way into other hands apart from the defendant’s, even taking into consideration the amount of dangerous drugs involved.

51. Applying the 3 step approach in HKSAR v Wan Sheung Sum, CACC 438/1999, given the quantity of dangerous drugs and the multiple previous convictions for possession of dangerous drugs, I will adopt a starting point of 18 months’ imprisonment. Having decided that there is insufficient ground to enhance the sentence on the basis of risk of redistribution, I will reduce the sentence by one third in recognition of the defendant’s guilty plea and sentence him to 12 months’ imprisonment.

Charge 8

52. The maximum sentence for this charge is a fine of any amount and imprisonment for 12 months.

53. The defendant absconded for a period of about 1 year and 5 months. In the case of HKSAR v Ko Chun Hung, CACC 71/2007, the applicant absconded for over 2 years and had sneaked out of Hong Kong. The Court of Appeal upheld a sentence of 4 months’ imprisonment.

54. In our present case, the defendant did not leave Hong Kong but even so, his absconding would have “hindered the course of justice and would make it more difficult and costly for its administration.”

55. As Stock JA observed in HKSAR v Chow Tak Fuk, CACC 428/2004, “…those...minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.”

56. For this charge, I will adopt a starting point of 6 months’ imprisonment, discounting it to 4 months’ imprisonment upon the defendant’s guilty plea.

Totality

Imprisonment

57. Bearing in mind the principle of totality, I will order that the sentences of imprisonment for charges 1, 2 and 3 be served concurrently. The sentences for charges 4, 5 and 6 be served concurrently. 8 months of charge 7 be served concurrent to rest of the sentences.

58. The arithmetic of the various sentences are as follows:

24 months (charge 1, 2, 3) plus 10 months (charge 4, 5, 6) plus 4 months (charge 7) plus 4 months (charge 8), which equals a total of 42 months’ imprisonment.

59. This is equivalent to an overall starting point of 5 years and 3 months’ imprisonment (63 months) for all 8 charges.

Disqualification

60. The disqualification periods under charge 1 and 3 to be served consecutively, making a total of 4 years. The disqualification period in the present case to run consecutive to the disqualification period imposed in TMCC 1438/2011.

Estreatment

61. The defendant’s cash bail is estreated upon his failure to attend the court hearing on 13^th December 2011 without reasonable excuse. Mr. Lam was invited but did not make any submissions on the estreatment.

[1] 52(10) Any person who contravenes-

(a) this section, other than subsection (2), commits an offence and is liable in the case of a first conviction for that offence to a fine of $5000 and to imprisonment for 3 months,

[2] 4(2)(a) If a person acts in contravention of this section, he shall be liable to a fine of $10000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.

[3]S.37(2E) A person commits an offence under subsection (1) in circumstances of aggravation if at the time of committing the offence—

(a) the proportion of alcohol in the person’s breath, blood or urine is tier 3; or

(b) any concentration of a specified illicit drug is present in the person’s blood or urine.