HKSAR v. TO YUET MING

DCCC 963/2018

[2019] HKDC 647

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 963 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant stands convicted of one charge of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, and one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2.  The facts could be summarised as follows.  At around 11:35 in the evening of 13 July 2018, the defendant was driving a private car with the registration number of VJ4159 on Kwun Tong Bypass east bound.  As he was travelling at a speed of 85 kilometres per hour, which was about 15 kilometres above the speed limit for that stretch of road, he was spotted by PC9103 who was on duty on board of an unmarked police vehicle nearby.  The police officer sounded the siren and demanded the defendant to stop.  But instead of complying with the demand, the defendant accelerated and proceeded in the direction of Sau Mau Ping Road.  This was followed by a car chase which lasted for around 6 minutes.  In contravention of a “Left Turn Only” road mark, the defendant made a U-turn and entered the roundabout at Sau Mau Ping Road.  He then crossed the double white lines and then travelled in the opposite direction for about 100 metres on Lin Tak Road.  In the course, he jumped a red light and then travelled in the opposite direction of Hing Tin Street and jumped yet another red light upon reaching Tak Tin Street. Eventually, the defendant was stopped by the police at the unloading area of Tak King House, Tak Tin Estate.

3.  When the defendant alighted from the car, he was seen to have thrown a plastic bag on the ground.  A police officer seized the bag and found inside 7 resealable plastic bags containing, as it was later found, a total of 3.03 grammes of a solid containing 2.56 grammes of cocaine.

4.  The estimated street value of the cocaine is around HKD $3,142.

5.  In a subsequent interview the police had with him, the defendant said to the police that before he was stopped by the police he was on his way home.  He said he did not comply with the police request to stop at Tseung Kwan O Road because he thought he was wanted by the police for the various unpaid penalty tickets he had.  He then offered various explanations for the manoeuvres he did during the course of the car chase, which explanations really amounted to only one thing; that he was trying to avoid to be stopped by the police.  The manoeuvres he took, as one could see, were dangerous moves on any road in Hong Kong even at that hour of the day. 

The defendant’s background

6.  The defendant is now 24 years old.  He was born in Hong Kong and started working after finishing Form 4 in a local high school.  He worked as a recycling worker and earned about HKD $17,000 a month.  He was before this case living with his parents and elder brother at a unit in Po Tat Estate. 

7.  This afternoon, Mr Li, who was appearing for the defendant, produced to the court a letter from the defendant’s father, a letter from his elder brother and one from the defendant himself.  His father and elder brother both asked for leniency on the part of the defendant and the defendant emphasised in his own letter that he had learned a bitter lesson in the present case. 

8.  The defendant, as I have been told by the defence and confirmed by the prosecution, has a clear record.  He has never been in trouble with the law before.

Sentencing considerations

9.  There are sentencing guidelines for trafficking in cocaine according to the tariffs set down in Lau Tak Ming, which were held to be equally applicable for cocaine trafficking.  The proper starting point for trafficking in up to 10 grammes of heroin or cocaine is from 2 to 5 years’ imprisonment.  The defendant in this case is convicted of trafficking in 2.56 grammes of cocaine.  The proper starting point, in my view, is one of 2 years and 8 months’ imprisonment. 

10.  Now, in mitigation, considerable emphasis has been placed by Mr Li on the defendant’s contention that over half of the dangerous drugs found on him was for his own consumption, whereas the rest was procured by him for a friend.  In effect, Mr Li was saying that, so far as the trafficking part is concerned, it is no more than what comes to be called social trafficking. 

11.  In support of his argument, Mr Li drew my attention to the urine test results the Correctional Services Department did for the defendant upon his admission to Lai Chi Kok Reception Centre. It is shown in the test result that the defendant was, indeed, having cocaine in his body on the day when he was admitted. 

12.  Insofar as the defendant’s contention for self-consumption is concerned, whilst I am prepared to accept that he was a user of cocaine, I have some doubts as to his claim that over 4 packets out of 7 packets found were for his own consumption.  There is, I note, really little more than his assertion here before the court. 

13.  As observed by Stuart-Moore J, Vice President of the Court of Appeal, as he then was, in the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69:-

“In drug cases where traffickers are renowned for their attempts to circumvent the rigour of the courts’ stern approach to drug offences, sentencers will need to examine with particular care any assertions by a proved or self-confessed trafficker that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence.”

14.  Having said that, given that the defendant has been proved to be a user of cocaine and bearing in mind his clear record before the present case, the court is prepared to err on this occasion on the generous side and find that up to maybe about 3 packets were or could have been for his own consumption.  That would be about 43% of the dangerous drugs found on the day. 

15.  For that, I am prepared to, again, act on the generous side and give him a discount of 5 months.  With that discount, the starting point will be taken down from 32 months to one of 27 months’ imprisonment.  With a one-third discount, the sentence for the first charge is 18 months’ imprisonment. 

16.  I shall next deal with the 2^nd charge, dangerous driving.  As I observed earlier, the manoeuvres undertaken by the defendant in his attempt to avoid apprehension by the police were clearly dangerous ones. 

17.  In the case of HKSAR v Wong Kam Lung, HCCC 188/2017, the dangerous use of the vehicle occurred in what was described by the trial judge as a narrow village road and for a distance of only about 7 feet.  It was further made clear that there were at the time in question no other road users on the road at the time.  Of course, in that case in an attempt to escape police, the defendant there rammed his vehicle into the side of the police vehicle and his own vehicle ended up colliding with a tree in front. 

18.  In the case of HKSAR v Chau Hon Shu, DCCC 501/2017, District Judge Eddie Yip had to deal with a case where the defendant was also driving his car in a manner which could only be described as very dangerous in an attempt to escape from the police.  Like the facts of the present case, the defendant was also found later to have with him a total 3.03 grammes of cocaine.  In that case, Judge Yip imposed a 4 months’ term for the dangerous driving after allowing for a one-third discount for the defendant’s guilty plea.  For the cocaine trafficking, His Honour took a starting point of 3 years and 3 months’ imprisonment, and with a one-third discount sentenced the defendant there to a term of 28 months’ imprisonment.There were, of course, in that case other traffic offences which the court had to deal with but which we are not concerned with here.

19.  With these matters in mind, I am satisfied that a proper starting point for the 1^st charge in the present case is one of 6 months’ imprisonment.  The defendant is, of course, entitled to the full one-third discount.  For that, the sentence for the 1^st charge is reduced to a term of 4 months’ imprisonment. 

20.  That leaves me with the question of totality.  Taking a step back and with a global view of the matter, a total sentence of 20 months’ imprisonment for the 2 charges, in my view, would have been a fair and just sentence in the circumstances.  On the basis of the aforesaid, I therefore shall order 2 months out of the term for the 1^st charge to run consecutively to the 18 months’ term for the 1^st charge.  The sentence which the defendant has to serve is therefore one of 20 months’ imprisonment.

21.  By reasons of the matters I have already stated in court, you are sentenced to a term of 4 months’ imprisonment for the 1^st charge, that of dangerous driving, and a term of 18 months’ imprisonment for the 2^nd charge, that of trafficking in dangerous drugs, 2 months out of the 4 months’ term for the 1^st charge, as I have also indicated earlier, will have to run consecutively to the 18 months term I imposed for the 2^nd charge, making a total of 20 months’ imprisonment. 

22.  In addition, the defendant is hereby disqualified to hold any class of driving licence for a period of 12 months and would have to complete a driving improvement course in the last 3 months of the disqualification period if he wants to have a driving licence back.