HKSAR v. TSE MING HIN

DCCC 95/2021

[2021] HKDC 818

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 95 OF 2021

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Reasons for Sentence

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1.  The 2^nd defendant of this case has pleaded guilty to Charges 3 to 7. He has pleaded guilty to two counts of possession of dangerous drugs (Charges 3 and 4). He has pleaded guilty to driving without a valid driving licence, using a motor vehicle without third party insurance and dangerous driving (Charges 5, 6 and 7).

2.  On 17 July 2020, at around 1.50 in the morning, police officers noticed a female, the 1^st defendant, stood near a white private car outside Fortress Tower, 250 King’s Road.  The police officers saw her acting furtively and believed her to be suspicious.  When she then left the vicinity of the vehicle and walked across the road, she was stopped and investigated. 

3.  A police officer, PW1, approached the white vehicle and saw the 2^nd defendant sat in the driver seat.  He went to the front passenger door and opened it.  He revealed his identity to the 2^nd defendant and told him to turn off the engine and get out of the vehicle.  The 2^nd defendant deliberately ignored those instructions. Instead, he started the vehicle and drove away. 

4.  The police officer, PW1, immediately jumped into the front passenger seat and repeatedly told the 2^nd defendant to stop the vehicle.  There was a struggle between the two men but the 2^nd defendant did not stop and tried to fight off the police officer.  The vehicle drove about 30 metres before it crashed into a central divider of King’s Road.  This did not stop the 2^nd defendant.  He continued to drive on but the vehicle eventually broke down.

5.  Other police officers arrived to assist PW1 and subdued the 2^nd defendant.  These are the facts relating to Charge 7, driving dangerously on King’s Road.  It was subsequently discovered that he was driving without a valid driving licence and driving without third party insurance (Charges 5 and 6).  He only had a valid learner’s licence.

6.  The vehicle was searched and in a compartment in front of the handbrake, the police found a resealable transparent plastic bag containing a white solid, the dangerous drugs of Charge 3, namely, 0.06 grammes of a solid containing cocaine.  

7.  The 2^nd defendant was arrested and cautioned for possession of that cocaine, and under caution, he said that the drug was given to him by his friend, the 1^st defendant, earlier.

8.  At 3.20 am, an hour after the police found the cocaine, a police drug tracker dog was brought to the scene to search the vehicle more thoroughly.  Within minutes and with the assistance of the dog, the police found a resealable transparent plastic bag containing the drugs of Charge 4, 1.48 grammes of a crystalline solid containing 1.46 grammes of methamphetamine hydrochloride.  It was hidden inside a compartment under the steering wheel of the vehicle.  The dog found it.

9.  The 2^nd defendant was arrested and cautioned again for possession of dangerous drugs, and this time under caution, the defendant denied the offence.

10.  Later that day, in a video-recorded interview, the 2^nd defendant admitted under caution that the 1^st defendant, a friend, had given him two packets of cocaine before the police arrived.  He explained that when PW1 got in his vehicle, it scared him and he drove off to get away.  He said he went to meet the 1^st defendant and he paid her a thousand dollars for the cocaine.  He also said that the vehicle belonged to his friend’s father but that he had paid him $32,000 to buy it from him.  He had not yet properly transferred it to him.  He bought it on 10 July 2020.  He had had possession of it days before his arrest.  All of this was confirmed by the registered owner.

Mitigation

11.  The 2^nd defendant is not a man with a clear record.  In April 2013, he was sentenced to 15 months’ probation for assault occasioning actual bodily harm, and in March 2016, he was sentenced to 24 months’ probation for two counts of trafficking in dangerous drugs.

12.  His best mitigation is his plea of guilty at the earliest opportunity.  He is now 22 years old, recently married and expecting a child in September this year.  At the time of his plea, he was employed as a logistic worker earning about $15,000 a month.  According to the antecedent statement, he was unemployed at the time of his arrest.

13.  I adjourned mitigation and sentence for a drug addiction treatment centre report.  It has been stressed in mitigation that he is not now a drug addict.  I do not intend to repeat the contents of the report but it is thorough.  The medical officer is of the opinion that the defendant is not a drug dependant and therefore not suitable for admission to a drug addiction treatment centre.

14.  I have heard full mitigation from Mr Chui and received written mitigation in advance.  He has said all he can say on behalf of the defendant.

Reasons for Sentence

15.  It has been said by the Court of Appeal that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment.  A sentencing court should look at the quantity and nature of that drug as well as any latent risk factor.

16.  It has been stressed in mitigation that in the circumstances of this case, there is no latent risk and sentence should not reflect this factor.  Although he has previous convictions for trafficking dangerous drugs, I agree with the submissions and find there to be no latent risk.  In this case, quantity will be the main governing factor to determine the starting point.

Possession of Dangerous Drugs (Charges 3 & 4)

17.  For Charge 3, I take into account the drug was cocaine and the quantity was 0.06 grammes.  I find a starting point of 9 months’ imprisonment appropriate.  The defendant is entitled to a discount of one-third for his plea which will reduce the starting point to 6 months’ imprisonment.

18.  For Charge 4, I take into account the drug was “Ice”, methamphetamine hydrochloride, and was 1.48 grammes containing 1.46 grammes of ‘Ice’.  ‘Ice’ is a dangerous, addictive and potent drug and the quantity here not insignificant.  I take a starting point of 15 months’ imprisonment which will be reduced to a 10-month term of imprisonment after his plea.

Driving Offences: Charges 5 to 7

19.  I have taken into account the facts and circumstances relating to the defendant’s purchase of a vehicle when he did not have a valid driving licence.  This meant he would not have any insurance if he drove the vehicle on the road.  That is a serious offence.  He was a danger to other road users and pedestrians. 

20.  I have been referred to the Secretary for Justice and Poon Wing Kay [2007] 1 HKC 289 and the non-exhaustive list of factors relevant to sentence for dangerous driving causing death offences.

21.  It was submitted that the defendant here did not drive with selfish disregard for the safety of other road users or with a degree of recklessness.  Therefore, the facts of this case do not belong to the most serious category of dangerous driving.

22.  There is no doubt the 2^nd defendant drove dangerously.  This was not a case of drink or driving under the influence of drugs or driving at an excessive speed for a prolonged and/or persistent period of time.  He did not drive aggressively for a long distance or drive a poorly maintained vehicle.  However, the seriousness in this case is his deliberate defiance of an order by a police officer to get out of his vehicle.  It was a deliberate attempt to evade arrest.

23.  Moreover, he crashed into a central divider whilst trying to evade arrest, injuring the officer in the front seat. Luckily, the injuries were not serious.  Prior to this collision, there had been a struggle between the 2^nd defendant and that police officer inside the vehicle.  Despite that, the 2^nd defendant did not stop and attempted to drive away.  He is lucky that the consequences of his actions were not more serious.

24.  After careful consideration of the facts and mitigation, I find a starting point of 3 months’ imprisonment appropriate for Charge 5, driving without a valid licence, and reduce that by 1 month to reflect his plea.  Therefore, the 2^nd defendant is sentenced to 2 months’ imprisonment for Charge 5. 

25.  I find a starting point of 6 months appropriate for driving without third party insurance (Charge 6).  I will reduce that by 2 months to reflect his plea.  Therefore, the 2^nd defendant is sentenced to 4 months’ imprisonment for Charge 6.

26.  For the more serious offence, Charge 7, dangerous driving, I take a starting point of 18 months’ imprisonment and I reduce it by 6 months to reflect the 2^nd defendant’s plea.  Therefore, he is sentenced to 12 months’ imprisonment for Charge 7.

Conclusion

27.  For Charge 3, the 2^nd defendant is sentenced to 6 months’ imprisonment;

28.  For Charge 4, the 2^nd defendant is sentenced to 10 months’ imprisonment;

29.  For Charge 5, the 2^nd defendant is sentenced to 2 months’ imprisonment;

30.  For Charge 6, the 2^nd defendant is sentenced to 4 months’ imprisonment and disqualified from driving any class of vehicle for a period of 12 months from today.  This will include taking his driving-licence test.

31.  For Charge 7, the 2^nd defendant is sentenced to 12 months’ imprisonment and disqualified from driving any class of vehicle for a period of 6 months from today.  This will include taking his driving-licence test.

32.  He is warned that if he drives during this disqualification period, not only will he be charged with that offence, he will not be insured and therefore a danger to other road users. Driving whilst disqualified is taken very seriously and normally will result in a term of imprisonment.  Both disqualification orders will be served concurrently. Therefore, there is a total of 12 months’ disqualification from today.

33.  I have taken into account the totality principle and the facts of this case.  I will order that all five charges be served concurrently.  Accordingly, the 2^nd defendant is sentenced to a total of 12 months’ imprisonment.