HKSAR v. NGAI SING KEUNG

DCCC 419 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 419 OF 2012

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Reasons for Sentence

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Introduction

1. The defendant is convicted on his own plea of the following charges:

1^st charge: Theft (of a private car), contrary to section 9 of the Theft Ordinance, Cap.210;

2^nd charge: Trafficking in a dangerous drug (85.52 grammes of ketamine), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134;

3^rd charge: Driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap.374; and

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

Facts

2. LUI Yik-nang (“PW1”) is the owner of a Honda Civic private car with registration number HC6371 (“PW1’s Car”). At about 2 am on 31 December 2011, PW1’s son parked PW1’s Car at a road side near lamppost no.BE0930 at Wu Kai Sha Village, Sai Sha Road, Ma On Shan, New Territories. When PW1’s son went to collect PW1’s Car at 1:45 pm on the same day, PW1’s Car was missing. A report was made to the police.

3. On the evening of 26 January 2012, PC3368 (“PW3”) and his team members saw four males, one being the defendant, standing next to a private car with a number plate NP9289 (the “Car”) parked at Fan Leng Nam Wai car park, San Wan Road, Fanling, New Territories (the “Car Park”). Upon seeing the police officers, the defendant fled immediately but was stopped by other police officers nearby.

4. PW3 enquired with the defendant as to why he fled. The defendant said it was because there was “K Chai” in the Car.

5. The defendant was therefore brought back to the Car Park. Under caution, the defendant said that the Car was stolen by him and that there was “K Chai” inside the storage compartment of the Car. 

6. Vehicle licence disc bearing the number NX3859 was found being displayed on the windscreen of the Car. That number, i.e. NX3859, was different from the number displayed on the number plate of the Car, i.e. NP9289.

7. Upon search of the Car, the following items were found:

· 12 packets containing a total of 135.10 grammes of a powder containing 85.52 grammes of ketamine (“E5”);

· an electronic scale;

· one large resealable plastic bag containing a bundle of new smaller transparent plastic bags;

· one plastic bottle containing traces of suspected ketamine; and

· one paper box used as a rubbish bin, containing 4 pieces of paper, 10 plastic bags and 29 pieces of used tissue paper all containing traces of ketamine.

8. PW3 arrested the defendant. Under caution, the defendant said that he stole the Car for the purpose of distributing the drugs, and that the “K Chai” and the packaging paraphernalia belonged to him.

9. Upon checking the chassis number of the Car, it was found that the Car was in fact PW1’s Car.

10. In a cautioned video-recorded interview, the defendant said, inter alia, that:

· He stole the Car for his own use in Wu Kai Sha in December 2011. He used some tools to prize open the Car and then drove it to the Car Park. He had since been driving the Car, including 26 January 2012 ;

· NP9289 was the vehicle registration number of his vehicle which he had sold as metal scrap about two months ago;

· E5 contained ketamine which belonged to him. He bought 7 ounces of ketamine at HK$5,000 from someone called “Apple” in Yuen Long;

· The ketamine was for his consumption and for selling. The ketamine was originally packed in one packet. The defendant re-distributed the ketamine into 12 packets and would sell each packet at HK$900; and

· He would sell the ketamine in Sheung Shui area.

11. Record check revealed that the defendant was disqualified from driving in the period from 16 December 2010 to 16 December 2011. The defendant was required to attend the driving improvement course upon the expiry of the disqualification period before he could get a driving licence; but he had not attended that course thus making him still being subject to the disqualification order at the material times.

The defendant’s previous conviction record and antecedents

12. The defendant has 26 previous convictions resulting from 11 court cases sentenced between the years of 2003 and 2012. His previous convictions include:

· 1 attempted theft;

· 1 robbery;

· 1 conspiracy to rob;

· 7 possession of dangerous drugs;

· 4 dangerous driving;

· 1 dangerous driving causing grievous bodily harm;

· 2 driving while disqualified; and

· 2 using a motor vehicle on a road against third party risks.

In particular, the defendant was sentenced on 25 May 2012 in DCCC 1138/2011 to a total of 4 years and 10 months’ imprisonment. A disqualification order of 6 years was also imposed on him in that case.

13. The defendant was born in October 1987 and is now 24 years old. He has received education up to Secondary 2 level.

Mitigation

14. In mitigation, Mr Lam on behalf of the defendant submitted that the defendant did not have any previous drug trafficking conviction and that PW1’s Car was not expensive. Mr Lam submitted the judgment of HKSAR v Wong Ka Po CACC 109/2002 and suggested that a starting point of 2½ years’ imprisonment was appropriate for cases of vehicle theft. Relying on HKSAR v Hui Chi Tong CACC 414/2007, Mr Lam submitted that if the defendant had not made the admissions, it would have been very difficult that the defendant be found guilty of the 1^st, 3^rd and 4^th charges.

Discussion

15. I accept that the defendant did not have any previous conviction of drug trafficking; but that is not a mitigating factor justifying reduction in sentence on the 2^nd charge.

16. I was informed that PW1’s Car was a second-hand car worth $10,000. I was also informed that at the material time, PW1’s Car was in working order. Indeed, the defendant admitted he had kept using it from 31 December 2011 to 26 January 2012. I will adopt a starting point on the 1^st charge on the basis that PW1’s Car was an inexpensive one but it was in working order. 

17. Wong Ka Po was a case of an appeal against conviction, not sentence. The Court of Appeal did not deal with the 2½ years’ imprisonment imposed by the trial judge on the charge of attempted theft of a goods vehicle and trailer. It is therefore not an authority on the appropriate sentence for cases of vehicle theft.

18. Mr Lam submitted that if the defendant had not made the admissions, it would have been very difficult that the defendant be found guilty of the 1^st, 3^rd and 4^th charges. In this connection, I have the following observations:

(i) The defendant was intercepted by the police when he was trying to flee;

(ii) Before the defendant tried to flee, he and another 3 men were seen standing next to the Car with the number NP9289 displayed on the number plate;

(iii) NP9289 was displayed on the number plate of the Car; but NX3859 was displayed on the vehicle licence disc stuck on the windscreen of the Car. It would inevitably arouse the police’s suspicion to investigate further, including conducting a registration check of the registration number NP9289 and searching the Car;

(iv) As NP9289 was the vehicle registration number of the defendant’s vehicle (which he alleged to have sold as metal scrap about two months ago), a simple registration check on NP9289 would connect the defendant with PW1’s Car which was stolen on 31 December 2011; and

(v) Search of the Car would, as it did, lead to discovery of E5, thus connecting the defendant with E5.

Based on the aforesaid observations, I find that even if the defendant did not admit to theft of PW1’s Car, his connection with PW1’s Car (by standing next to it and by the display of NP9289 on it) would have at least enabled the prosecution to proceed with the charge of handling stolen goods (i.e. PW1’s Car) which, in terms of sentence, has little difference from the 1^st charge of theft. I therefore do not consider that if the defendant had not made the admissions, it would have been very difficult that the defendant be found guilty of the 1^st charge. On the other hand, I accept that but for the defendant’s admissions, it would have been difficult for the defendant be found guilty of the 3^rd and 4^th charges. Applying Hui Chi Tong, I am prepared to give the defendant further discount on top of his 1/3 discount for his guilty plea in relation to the 3^rd and 4^th charges.

19. (i)  On 20 June 2012 after the defendant had been convicted of the 4 charges in the present case, I asked for the assistance from the prosecution and the defence on some issues, including how this court could deal with the disqualification order imposed in DCCC 1138/2011. The hearing was adjourned to 28 June 2012 to enable parties to conduct further research.

     (ii) At the hearing on 28 June 2012, Public Prosecutor Miss Chan assisted me with her written submissions dated 25 June 2012 referring to Secretary for Justice v Hung Ling Kwok [2010] 4 HKLRD 365 and HKSAR v Chan Wing Kuen HCMA 1047 & 1048/2005. In Chan Wing Kuen, Mr Justice Lunn confirmed the imposition of consecutive periods of disqualification. At that hearing, I referred the parties to R v Lee Chi-keung HCMA 757/1985 and R v Tung Koon-ming HCMA 879/1985. In Lee Chi-keung, the court said that it was wrong to make two disqualification orders imposed in two cases consecutive. In Tung Koon-ming, the court said the power to make disqualification orders run consecutively would require a statutory power, such as the statutory power to order imprisonment sentences to run consecutively, and that there was no such power in regard to disqualification from driving, save in section 44(3) of the Road Traffic Ordinance. Public Prosecutor Miss Chan asked to further adjourn this case so that she could conduct further research. I therefore adjourned the matter to 17 July 2012.

     (iii) At the hearing today, Public Prosecutor Miss Chan informed me that she could not find any further authorities, and advised that the prosecution’s stance was that this court could impose disqualification orders in the present case without touching on the disqualification order in DCCC 1138/2011. Mr Lam for the defendant raised no objection to this way forward. In light of Lee Chi-keung and Tung Koon-ming, I am minded to adopt this approach.

Sentence

20. In Attorney General v Ng Kwok Hung CAAR 7/1996, the Court of Appeal considered a starting point of 3 years’ imprisonment appropriate for cases of theft of vehicles. In HKSAR v Cheng Chun Ming CACC 356/2000, the Court of Appeal said:

“14. We are unable to say that the starting point of 3 years’ imprisonment adopted by the judge is in any way wrong or manifestly excessive. Cases involving the theft or handling of motor cars are very serious offences and inevitabley call for immediate custodial sentences of considerable length….”

For the 1^st charge, I adopt a starting point of 3 years’ imprisonment as PW1’s Car was inexpensive, but in working order. One-third discount is given to the defendant for his guilty plea, thus reducing the sentence for the 1^st charge to 2 years’ imprisonment. There being no other valid mitigating features justifying further reduction in sentence, the defendant is sentenced to 2 years’ imprisonment for the 1^st charge.

21. In Secretary for Justice v Hii Siew Cheng & Another [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking in a quantity of 50 to 300 grammes of ketamine, the sentence should be an imprisonment of between 6 to 9 years.

22. In HKSAR v Siu Man Hing DCCC 230/2010, HH Judge Toh (as she then was) adopted a starting point of 6½ years’ imprisonment on trafficking of 86.34 grammes of ketamine.

23. But for the self-consumption factor which I will deal with later in these Reasons for Sentence, I would have adopted a starting point of 6½ years’ imprisonment for the 2^nd charge.

24. In the present case, the defendant admitted under caution that he purchased 7 ounces (i.e. 198.45 grammes as 1 ounce is equivalent to 28.35 gramme) of ketamine at HK$5,000 from someone called “Apple” in Yuen Long. As E5 contained 135.10 grammes of a powder only and as other materials found from the Car also contained traces of ketamine, I find that out of the 7 ounces of ketamine he purchased, the defendant had already consumed certain amount of it. I find that E5 was the remaining portion of ketamine after the defendant’s consumption. Coupled with the defendant’s admissions that he re-distributed the ketamine into 12 packets and would sell each packet at HK$900, I find that a substantial part of E5 was kept by the defendant for trafficking purpose. Nonetheless, I am prepared to accept that certain proportion of E5 was to be kept for the defendant’s own consumption but the proportion would not be high. I bear in mind that possession of a dangerous drug itself carries a term of imprisonment and I find that the actual risk of dissemination of the ketamine in this case was high: HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Minney [2011] 3 HKLRD 556.

25. Having taken the assertion of self-consumption into account, I adopt a starting point of 6 years’ imprisonment for the 2^nd charge. One-third discount is given to the defendant for his guilty plea, thus reducing the sentence for the 2^nd charge to 4 years’ imprisonment. There being no other valid mitigating features justifying further reduction in sentence, the defendant is sentenced to 4 years’ imprisonment for the 2^nd charge.

26. As for the 3^rd charge, I adopt a starting point of 6 months’ imprisonment, give one-third discount to the defendant for his guilty plea thus reducing the sentence to 4 months’ imprisonment. In light of his voluntary confession and relying on Hui Chi Tong, I give him a further discount of 1 month. He is sentenced to 3 months’ imprisonment for the 3^rd charge. The defendant has 2 previous convictions of driving while disqualified. By virtue of section 44(2)(b) of the Road Traffic Ordinance and having taken the aforesaid mitigating factors into account, I order that the defendant be disqualified for a period of 3 years.

27. Regarding the 4^th charge, I adopt a starting point of 6 months’ imprisonment, give one-third discount to the defendant for his guilty plea thus reducing the sentence to 4 months’ imprisonment. In light of his voluntary confession and relying on Hui Chi Tong, I give him a further discount of 1 month. He is sentenced to 3 months’ imprisonment for the 4^th charge. The defendant has 2 previous convictions of an offence under section 4 of Cap.272. By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance and having taken the aforesaid mitigating factors into account, I order that the defendant be disqualified for a period of 3 years from the date of conviction.

28. Having considered the totality principle, I order that:

(i) In relation to the 2^nd, 3^rd and 4^th charges, the imprisonment sentences will run concurrently, making a total of 4 years’ imprisonment;

(ii) By virtue of section 4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance[1] and section 44(3) of the Road Traffic Ordinance[2], the 3-year disqualification imposed for the 3^rd charge shall be in addition to the 3-year disqualification imposed for the 4^th charge, thus making a total of 6 years disqualification to run from the date of conviction;

(iii) One year’s imprisonment in the 1^st charge will run consecutively with the imprisonment sentences imposed for the 2^nd, 3^rd and 4^th charges.

The total sentence is therefore 5 years’ imprisonment and disqualification for 6 years. The 6 years disqualification is to run from the date of conviction.

29. The defendant is now serving 4 years and 10 months’ imprisonment under DCCC 1138/2011. The offences in DCCC 1138/2011 happened on 9 July 2011 and 10 August 2011 were separate and distinct from the present case. The defendant committed the offences in the present case whilst he was on bail in relation to the offences in DCCC 1138/2011. Having considered the totality principle, I order that 3 years and 2 months imprisonment in the present case to run consecutively with the 4 years and 10 months’ imprisonment in DCCC 1138/2011.  

30. As advised by the prosecution, I do not need to deal with the disqualification order imposed in DCCC 1138/2011.

[1] Section 4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap.272)  provides that a person disqualified by virtue of a conviction under that section or of an order made thereunder for holding or obtaining a licence shall, for the purposes of the Road Traffic Ordinance (Cap.374), be deemed to be disqualified by virtue of a conviction under the provisions of that Ordinance.

[2] Section 44(3) of the Road Traffic Ordinance provides that the period of any disqualification under subsection (2) shall be in addition to any other period of disqualification ordered under any other provision of that Ordinance.