HKSAR v. LAM KA KI

DCCC 1053/2021

[2023] HKDC 395

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1053 OF 2021

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REASONS FOR SENTENCE

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I.  INTRODUCTION

1.  The defendant pleaded guilty to five charges:-

(1)  1^st Charge: Theft, contrary to section 9 of the Theft Ordinance, Cap 210;

(2)  2^nd Charge: Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134;

(3)  3^rd Charge: Taking conveyance without authority, contrary to section 14(1)  of the Theft Ordinance, Cap 210;

(4)  4^th Charge: Driving while disqualified, contrary to section 44(1)(b)  of the Road Traffic Ordinance; and

(5)  5^th Charge: Using a motor vehicle without third party insurance, contrary to section 4(1)  and 2(a)(b)  of the Motor Vehicles Insurances (Third Party Risks)  Ordinance, Cap 272.

2.  He admitted to the summary of facts prepared by the prosecution. I convicted him accordingly.

II. SUMMARY OF FACTS

3.  PW1 was the owner of a private car XA5726 (“the Car”).  In mid-February 2021, PW1 lent the Car to his friend PW2 for his own use.  The third party risk insurance of the Car did not cover, inter alia, driving without PW1’s permission and driving while disqualified.  D was a friend of PW2.  D was disqualified from driving from 14 March 2019 to 13 March 2024.

4.  At around 1700 hours on 6 June 2021, PW2 and D went to Rosedale Hotel, Causeway Bay.  PW2 fell asleep shortly after they arrived at the hotel.  D left the hotel while PW2 was asleep.

Charges 1 and 2

5.  At 2223 hours on 6 June 2021, police intercepted the Car at the junction of Sai Yee Street and Shan Tung Street, Mong Kok, Kowloon.  D was at the driver seat of the Car with no passenger on board.  Police then searched the Car and found at the door handle of the driving seat a pouch bag.  Suddenly, D grabbed a resealable transparent plastic bag containing 6.56 g of a crystalline solid containing 6.54 g of methamphetamine hydrochloride (“ice”)  (“E1”)  from the pouch bag, threw it away which was later recovered.  D also attempted to flee.  The police subdued D.

6.  The pouch bag was found containing: (a)  two resealable transparent plastic bags containing a total of 0.56 g of a crystalline solid containing 0.56 g of Ice (“E2”); (b)  one resealable transparent plastic bag containing a stack of empty resealable transparent plastic bags; (c)  two resealable transparent plastic bags containing a stack of empty resealable transparent plastic bags; and (d)  an HSBC Visa Card issued in the name of Wong Pak Kin (“the Card”).

7.  D was arrested for “possession of dangerous drugs”, “obstructing public officer in execution of duty” and “theft”.

8.  Police continued to search the Car and found: (a)  an electronic scale; (b)  three resealable transparent plastic bags containing a stack of empty resealable transparent plastic bags; and (c)  one resealable transparent plastic bag containing a stack of empty resealable transparent plastic bag.

9.  Government Chemist confirmed the content of E1 and E2.  Their total street value is estimated at HK$3,937.36.

Charges 3 to 5

10.  D said under caution in two video-recorded interviews that:-

(1)  He was in possession of the pouch bag, E1 and E2.

(2)  He bought E1 and E2 from an unknown male in Yen Chow Street at HK$2,000 an hour before his arrest.

(3)  He threw away E1 because he was scared when he was being searched by the police.

(4)  He picked up the Card in Causeway Bay in March 2021. He used the Card to break the methamphetamine for his easier consumption.

(5)  He had taken the key of the Car from PW2 who was sleeping in the hotel. PW2 had no knowledge about him taking the car key.

(6)  He drove the Car away for a joy ride.

(7)  He had been disqualified from driving. His driving licence had been confiscated by the Court.

III. MITIGATION

D’s background

11.  The defendant is 28 years old and is locally born.  He has been educated up to secondary education.  He has 2 children aged 5 and 8 with his girlfriend.  Prior to his arrest and for over one year, he was working as permanent secretary with Hong Kong First Youth Association earning HK$26,000 per month.  The defendant says that he contributed HK$10,000 a month for his family.  He also worked previously in interior design.

12.  He has been a drug addict for over 10 years and was a drug addict at the time of his arrest.  Upon his arrest on 6 June 2021, he tested positive for Amphetamine in his urine test taken on the 8 June 2021 at Lai Chi Kok Reception Centre.

13.  He has been in custody since his arrest.

14.  He indicated his pleas of guilty to all 5 offences at the first available opportunity ie in a questionnaire submitted to the court on 30 May 2022 for a mention hearing on paper.

15.  It was submitted by his counsel that this timely plea indicates regret and remorse.  He has cooperated with the authorities and has saved time and resources.

16.  One mitigation letter was written and submitted by the defendant.  He stated that he was supported by his family to rehabilitation.  He has also reflected upon himself and determined to start anew.  He did not want to miss the time accompanying his small children growing up.  He asked for the court’s leniency and wished to return to the society to take up his responsibility and take care of his family.  He said that his former employer promised to employ him again after his release.

17.  Miss Fung, his girlfriend also submitted a mitigation letter.  She said that the defendant was responsible and filial to his family.  He had reviewed his own way of thinking, his behavior and attitude and the influence that he will be having upon his children.  He felt very remorseful.  Miss Fung asked the court to be lenient and to give the defendant a chance to accompany their children during the time when they grow up.

Criminal record

18.  Despite the defendant’s age, he has long criminal record.  He had 21 times of appearing before the court for sentence which involved 33 counts of offences.

19.  His first criminal conviction was in September 2009 for theft when he was 14 years old.  He was given a probation order for 18 months.  In 2010, he was sentenced to the offences related to acting as a member of a triad society, common assault and perverting the course of public justice.  Probation order was ordered again.

20.  Starting from March 2017, he was sentenced for two sets of offences involving taking conveyance without authority, driving without a licence and using a motor vehicle on a road against third party risks and so on.  He was fined, sentenced to imprisonment and disqualified from driving.

21.  After a probation order was granted for an offence of resisting a police officer in September 2017, he was sentenced to drug addiction and treatment centre and again disqualified from driving on 13 August 2018 for two sets of driving related offences.  This time, he was also sentenced to another set of offences related to possession of dangerous drugs and pipe/equipment fit and intended for smoking/injecting/inhaling dangerous drugs.

22.  On 14 August 2018, he was sentenced to 5 months’ imprisonment for obtaining property by deception and four weeks’ imprisonment serving partly consecutively and partly concurrently to the deception offence and disqualification for another set of driving related offences.

23.  On 28 August 2018, he was sentenced for 2 counts of using an identity card relating to another person and drug-related offences, making a total of 23 months’ imprisonment.

24.  His second last appearance before the court for sentence was on 2 October 2018 for one count of using a motor vehicle on a road against third party risks, two counts of dangerous driving and one count of driving while disqualified.  In total, he was sentenced to imprisonment for effectively 4 weeks consecutive to the offence of using an identity card relating to another person and disqualified from driving.

25.  His last offence was possession of Part I poison and he was fined in October 2021.

IV. OFFENCES

Charge 2: Trafficking in a Dangerous Drug

26.  I shall start from Charge 2, trafficking in a dangerous drug.

27.  Under section 4(3)  of Dangerous Drugs Ordinance, the maximum sentence for trafficking in a dangerous drug on indictment is a fine of $5,000,000 and to imprisonment for life.

28.  The guideline starting points for trafficking in ice on conviction after trial up to 10 g are 3 to 7 years (HKSAR v Tam Yi Chun [2014] 3 HKLRD 691).  In the present case, the defendant was charged for trafficking 7.12 g of a crystalline solid containing 7.1 g of ice.  In my calculation, each g of ice carries 4.8 months of imprisonment.  The starting point shall be 70 months (ie 3 years + (7.1 g x 4.8 months)).

Self-consumption

29.  In his mitigation statement and oral submissions by his counsel on 8 March 2023, the defendant claimed that the entirety of the subject drugs was for his own use.  He had bought them for HK$2,000 an hour prior to his arrest.  He said that he had been a drug addict for over 10 years and had been admitted to drug addiction treatment centre.  Prior to his arrest, he was a habitual user.  He took drugs on a daily basis.  His daily dosage was 0.5 g.  This quantity of ice would have lasted him for 14 days.

30.  He claimed that he had the financial means to finance his drug habit as he was earning HK$26,000 per month.  Prior to his arrest, he, his girlfriend and two children resided with his grandmother and did not have to pay rent.  D had acquired the scale and bags from the trafficker to weigh and put the drugs in bags for his daily use.

31.  Based on the above, it is submitted on his behalf that there is credible and reliable information and material in support of the defendant’s claim of self-consumption.  The counsel for the defendant added that the positive result for Amphetamine of the defendant on 8 June 2021 is strong evidence to suggest that he was a user of Amphetamine.

32.  However, his version of self-consumption was varied in the adjourned hearing on 17 March 2023.  I was informed by Mr Mughal that the defendant’s latest instruction was that half of the subject drugs was for self-consumption and the remaining half was for trafficking.  The defendant also instructed that he would not testify for his case of self-consumption and no Newton-hearing was required.

Other submissions

33.  This is the first time the defendant being convicted of trafficking dangerous drug.

34.  The counsel for the defendant supplemented that the defendant was not apprehended outside a school, bar or club or other establishment where there would be a large number of persons.

35.  There is no suggestion that there is any international element involved in this case or that the defendant was part of any organised syndicate involved in trafficking.

Authorities

36.  In HKSAR v Wong Suet Hau and another [2002] 1 HKLRD 69, the Court of Appeal set out considerations for determining whether to accept the contention of self-consumption in paragraph 34:-

“(1)  Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.

(2)  Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

(3)  In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include:

a)  the quantity of drugs and, if known, their value;

b)  the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

c)  where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

d)  the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

e)  whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

f)  the explanation given by the defendant following arrest;

g)  the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

h)  the defendant’s criminal record, if any, in relation to previous drug offences.

Usually a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold 2002, para 5-20).”

37.  It was held by the Court of Appeal in HKSAR v Chow Chun Sang[2012] 2 HKLRD 1121, para 19 that:-

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point.”

38.  The defendant also referred to HKSAR v Cheung Wai Man [2018] HKCA 731 and HKSAR v Tsang Chung Keung (CACC 165 of 2014, 5 December 2014)  for the application of self-consumption element in sentence. In the respective cases, a 10% and 18% reduction was adopted.

39.  It is submitted by the defendant that should the court accept that all or a significant portion of the ice seized was for the defendant’s self-consumption, the court at its discretion can order a discount from the starting point in the range of 10-25% according to the authorities.  It is supplemented that the court may consider a reduction in the range of 20-25%.

Discussion

40.  The defendant suggested that all and/or half of the subject drugs were for his own consumption.  Should such assertion be accepted, it could satisfy the threshold of “a significant portion” under Wong Suet Hau.

41.  In respect of the defendant’s claim for self-consumption, I have considered the defendant’s contention and the facts of the case as follows:-

(1)  The quantity of drugs and their value and how the drugs were wrapped

42.  The total quantities of the drugs were 7.12 g of a crystalline solid containing 7.1 g of ice.  They were found inside the resealable transparent plastic bag in the pouch bag. 6.56 g of a crystalline solid containing 6.54 g of ice was found as E1 being contained in a resealable transparent plastic bag.  0.56 g of a crystalline solid containing 0.56 g of ice (E2)  was contained in two resealable transparent plastic bags.  The total value is estimated at HK$3,937.36.

43.  Seven resealable transparent plastic bags each containing a stack of empty resealable transparent plastic bags were found.

(2)  Other items found

44.  Apart from the resealable plastic bags mentioned above, there was the Card and an electronic scale being found.

(3)  Where the drugs have been discovered

45.  The drugs were found in the Car at the junction of Sai Yee Street and Shan Tung Street, Mong Kok, Kowloon at 22:23 hours on 6 June 2021.  It is a public place.

(4)  The defendant’s background

46.  In addition to the criminal conviction history mentioned above, the defendant was tested positive for Amphetamine about two days after the arrest.  Further, he has criminal record of possession of dangerous drugs twice and was sentenced to drug addiction treatment centre and imprisonment respectively.

47.  It was the first time that he was convicted of trafficking in dangerous drugs.

(5)  Explanation following arrest

48.  He mentioned that he bought E1 and E2 from an unknown male in Yen Chow Street at HK$2,000 an hour before his arrest.  He bought 7 g for his own consumption.  He consumed 1 g each time.  He also mentioned that he bought the plastic bags to carry conveniently the appropriate portion for his own consumption.  He used his own scale to check the quantities to avoid short weighting drugs.  The Card was used to break the ice for his easier consumption.

(6)  The defendant’s general means and his ability to pay for his drugs

49.  He asserted that he earned HK$26,000 per month and contributed HK$10,000 a month for his family.  He did not need to pay rent.  A proof of employment was submitted in support of his claim that he was employed and had income before the arrest.

50.  Regarding factor (1), the drugs were wraped in one bag of larger quantity and another two bags in smaller quantities.  There is no clear indication of trafficking or the entirety or half of the drugs were for self-consumption.  The quantities of the Ice found and its value was not particularly high either. However, I am of the view that factors (2)  to (3)  above strongly indicated that the subject drugs were for trafficking purpose instead of self-consumption.  

51.  Indeed, I do not accept that the defendant has a credible case in asserting that the subject drugs, may it be all or half, were for his own self-consumption.  His version of the portion of self-consumption changed from its entirety to half.  His daily dosage mentioned in his statement after arrest was 1 g while that in his mitigation statement was 0.5 g.  He said that the scale and the plastic bags were given by the trafficker in his mitigation statement, however, he stated that they were brought by himself on the material day.  Mr Mughal submitted that it was upon the defendant’s own reflection that he changed his instruction and also, when the defendant was arrested, he was suspected of simple possession instead of trafficking in dangerous drugs.  Conversely, I do not accept that there is any sound reason for such a change.

52.  It is inconceivable for the defendant to assert in the mitigation statement that the scale and the bags were from the trafficker to weigh and put the drugs in bags for his daily use.  His alleged price for the drug was only $2,000.  It is plainly that no seller would provide such items, not to mention that it included many resealable plastic bags, to him merely for self-consumption.  Additionally, according to him, he consumed 0.5 g for each dose.  The quantity of ice would have lasted for 14 days.  When compared his assertion with the items found ie 7 resealable transparent bags each containing stack of empty resealable transparent plastic bags, it is unbelievable that resealable transparent plastic bags in such quantities were needed.

53.  As to his version in the video-recorded interview, the existence of the Card, the scale and plastic bags at the same time could not be coincidental. It is unnecessary for him to bring all these items to the street at the same time for buying drugs for self-consumption.

54.  The Card, the scale and the resealable plastic bags were plainly trafficking related tools to either break up, separate, measure and wrap the drugs.  His latest version that half of the drugs was for self-consumption and the other half was for trafficking was no more than a bare assertion.

55.  The offence took place in a public place of Mong Kok.  This factor indicated positively that it is a trafficking activity.

56.  I have certainly considered the factors under (4)  and (6)  above which may be in support of the defendant’s assertion.  The income of the defendant was unlikely to be disputed given the documentary proof.  The fact that he had consumed drugs which were of similar nature was also proved.  His drug-related background was confirmed as well.  However, his background does not necessarily suggest that this particular incident was related to his self-consumption.

57.  In respect of factor (5), I refer to the discussions mentioned above. Furthermore, despite that there was assertion of self-consumption after the arrest, its effect was diminished by his inconsistent version in mitigation.

58.  Given the above analysis, the factors in paragraphs (2)  to (3)  were overwhelming.  I reject the defendant’s submission on self-consumption.

59.  I give no reduction in the starting point of 70 months.  The personal circumstances of the defendant do not constitute any valid grounds for reduction in sentence.  The defendant pleaded guilty at the first available opportunity and shall be accorded one third discount.  It makes a sentence of 46 months after rounding up the decimal place for Charge 2.

Charge 1: Theft

60.  The 1^st Charge concerns stealing one HSBC Visa Card.  The stolen credit card was found among the items contained in the pouch bag when the defendant was arrested.  It was the defendant’s admission in the cautioned statement that he picked up the Card in Causeway Bay in March 2021.  He used the Card to break the ice for his easier consumption.

61.  The counsel for the defendant submitted that this is a theft by finding case.  The defendant did not use the card for any financial gain whatsoever but used it to break the ice. 

62.  HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 was relied by the defendant.  In that case, the defendant stole the employee’s credit card and used it on 3 occasions to purchase smartphones valued at HK$15,240.  The defendant pleaded guilty and a starting point of 6 months’ imprisonment was adopted for the theft charge.  It was submitted that that was not disturbed on appeal.  However, it could be seen from paragraphs 33 to 34 of the judgment that the starting point of the theft charge was not questioned and that did not form any ground of appeal.

63.  HKSAR v Li Chi Yat [2019] HKCA 458 was also cited by the defendant. The defendant in that case had stolen a credit card from the wallet left behind in a vehicle of the company’s owner.  He used it for several transactions to a value of HK$17,752.  The learned judge adopted 9 months as the starting point and reduced it to 6 months after giving a one third discount for guilty plea.  The decision was confirmed by the Court of Appeal.

64.  In Secretary for Justice v Lam Yuk Chi Louisdeana [2019] HKCA 686, the defendant claimed to have picked up the victim’s bag and used the credit card to make 4 purchases of a total value of HK$14,283.  The starting point of the theft charge was 9 months and reduced to 6 months due to guilty plea.  She was given a suspended sentence.  However, the suspended sentence was set aside on appeal.

65.  It is submitted by the defendant that I could consider a sentence of 6 months’ imprisonment or less.

66.  In my view, there was no evidence suggesting that the Card came into the defendant’s possession contrary to his admission of picking up.  Nothing suggested that the Card had been used for monetary transaction for the benefit of the defendant.  Given the above analysis in Charge 2, I concluded that the Card was used as a tool in breaking up the ice into small quantities for trafficking purpose.

67.  The defendant has one previous conviction on theft back in 2009.  His personal circumstances hardly constitute any valid ground for reduction in sentence.

68.  I adopt a starting point of 7.5 months.  After a one-third discount, the sentence is 5 months for Charge 1.

Charge 3: Taking conveyance without authority

69.  According to section 14(1)  of the Theft Ordinance, the taking of another’s conveyance, without the consent of the owner or other lawful authority is punishable on indictment with 7 years’ imprisonment.

70.  There is no tariff in this offence but there is distinction between taking conveyance for joy-riding and for committing serious offence (HKSAR v Andrianiaina [2017] 2 HKLRD 500).

71.  The defendant submitted as he said in the cautioned statement that he drove the Car away for a joy ride.  However, I did not accept this contention.  I rejected the defendant’s contention that the drugs were for self-consumption purpose.  As stated from the summary of facts, at around 1700 hours on 6 June 2021, the defendant and PW2 went to the hotel in Causeway Bay.  PW2 fell asleep shortly after they arrived.  The defendant then left the hotel while PW2 was asleep.  The defendant was intercepted at about 2223 hours in Mong Kok.  It transpired that drug-trafficking activities took place when the defendant was in the Car.  I have considered the chronology stated by him in his statement after arrest, however, given the proximity in time of the above incidents, I am of the view that the explanation of driving the Car for a joy ride was merely a bare assertion.  

72.  Given the above observation, the present case falls into the category of the latter.

73.  The defendant has been convicted for three times for taking conveyance without authority in two sets of cases in March 2017 and another one in August 2018.  He was sentenced in the last conviction of taking conveyance without authority to detention in drug addiction treatment centre and the second last two for effectively a total of 8 months.

74.  I consider that the appropriate starting points in the present case shall be 12 months.  After giving a one-third discount, the sentence for Charge 3 was 8 months’ imprisonment.

Charge 4: Driving while disqualified

75.  The maximum period of imprisonment under section 44(1)(b)  of the Road Traffic Ordinance, Cap 374 is 12 months.  There is also a mandatory disqualification order for a period of not less than 3 years in the case of a second or subsequent conviction unless there are special reasons under section 44(2)(b).

76.  The defendant has four previous convictions.  He was sentenced in August 2018 (for three convictions)  and one in October 2018 respectively.

77.  The last conviction was in October 2018, he was sentenced to 4 weeks’ imprisonment consecutive to another non-similar offence ie using an identity card relating to another.  In the second last conviction, he was sentenced to 4 weeks’ imprisonment.

78.  The counsel for the defendant cited HKSAR v Chan Chi Man [2019] 2 HKLRD 737.  In that case, a starting point of 3 months was adopted.  It was only mentioned that the defendant had 16 traffic convictions and fixed penalty payment records.  There was no mention of previous conviction of similar offence.

79.  In HKSAR v Chung Ho Yin [2021] HKCA 1265, the defendant had 2 previous convictions of driving whilst disqualified.  A starting point of 6 months’ imprisonment was confirmed by the Court of Appeal.

80.  It is submitted by the defendant that an imprisonment in the range of 6 months could be considered.

81.  I took into account of the defendant’s previous convictions and the criminality of the present charge.  I adopt a starting point of 6 months’ imprisonment.  After one third discount, the sentence for Charge 4 is 4 months.

82.  There is no special reason provided by the defendant.  In the last occasion, the defendant was ordered to be disqualified for 30 months.  In the present case, I order that the defendant be disqualified for 36 months.

Charge 5: Using a motor vehicle without third party insurance

83.  The maximum sentence is of 12 months’ imprisonment.

84.  Section 4(2)(a)  of Cap 272 provides not less than 12 months’ disqualification nor more than 3 years from the date of conviction where no special reasons exist.

85.  Chung Ho Yin was again referred to.  The defendant in that case had previous similar convictions.  A starting point of 6 months’ imprisonment was adopted.

86.  6 previous similar convictions were recorded.  The last conviction was in October 2018.  The defendant was sentenced to 2 weeks, being concurrent with the another offence of driving while disqualified.  In the second last conviction in August 2018, he was sentenced to drug addiction treatment centre.

87.  It is submitted by the defendant that a starting point of 6 months’ imprisonment may be considered by the court.  I agreed with the contention and adopted 6 months as the starting point, and reduced it to 4 months after giving a one-third discount.

88.  No special reason was given by the defendant.  In the last occasion, the defendant was ordered to be disqualified for 12 months. In the present case, I order that the defendant be disqualified for 15 months.

Assistance to Police

89.  It was extremely vague in the defendant’s submissions on what information was given in the NPS and whether that should be considered as giving valuable or practicable assistance.  Given the information before me, I do not have any materials to conclude that a further reduction in sentence should be accorded.  Indeed, the defendant did not rely on this ground any further.

V. Totality Principle

90.  The individual sentences for the 5 charges are as follows:-

(1)  Charge 2: Imprisonment of 46 months;

(2)  Charge 1: Imprisonment of 5 months;

(3)  Charge 3: Imprisonment of 8 months;

(4)  Charge 4: Imprisonment of 4 months and disqualification order for 36 months;

(5)  Charge 5: Imprisonment of 4 months and disqualification order for 15 months.

91.  It is the defendant’s submissions that Charges 3, 4 and 5 arise from one transaction.  The court could impose a concurrent sentence for these 3 offences.  They are closely linked in time and space.  As to Charges 1 and 2, they are to be partly consecutive to each other and consecutive to Charges 3, 4 and 5.

92.  I have considered and applied totality principle to ensure that the final sentence is just and appropriate in the circumstances of the offences and of the offender.  I have directed myself to make a proper assessment of the overall culpability of the criminal conduct.

93.  I am of the view that the Charge 1 and Charge 2 are basically separate and distinctive in the nature of criminality.  However, in order to avoid an excessive sentence being passed, I order that 2 months of the sentence of Charge 1 run consecutively to the sentence of Charge 2.  The remaining 3 months of Charge 1 run concurrently with Charge 2.

94.  For the same reason, part of the sentence under Charge 3 shall run concurrently to Charge 2.  Three months of the 8 months’ imprisonment under Charge 3 run consecutively to Charge 2 and the remaining sentence be run concurrently.  Given that Charges 3, 4 and 5 primarily arise from one incident and should run concurrently, the respective sentences of Charges 4 and 5 run concurrently with Charge 2.

95.  It makes a total of 51 months’ imprisonment for all 5 charges.

96.  The respective periods for the disqualification orders under Charges 4 and 5 remain unchanged.  They shall run concurrently (R v Tang Sik Hung [1995] 1 HKC)  making a total of 36 months’ disqualification.  The existing period of disqualification has already been accumulated until 13 March 2024 under the order of KTCC 641/2018 before the sentence of the present case.  Given the previous criminal records of the defendant in driving offences, I am of the view that it is justified to order the disqualification order herein be run consecutively to the order under KTCC 641/2018 from 13 March 2024, and I so order.