HKSAR v. NGAN HO TIM

DCCC 162/2019

[2019] HKDC 972

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 162 OF 2019

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Resisting a police officer in the due execution of his duty[1]" (Charge 1); a charge of "Dangerous driving" (Charge 2); a charge of "Failing to have Small Plates securely fixed on the motor vehicle while driving under a probationary licence" (Charge 3); and a charge of "Possession of dangerous drugs" (Charge 4).

Summary of Facts

2.  This case arose from a routine pre-screening breath test conducted at a police roadblock set up near a petrol station situated at No.590 Prince Edward Road East (eastbound) in San Po Kong.

Charge 1

3.  About 2:30 a.m. on 17 October 2018, a private car UG6326 (which was driven by the defendant) was directed to enter the roadblock.  The defendant slowed down initially, but suddenly accelerated and rushed through the roadblock.  In the course of doing so, the defendant resisted Acting SGT 15433 in the due execution of his duty.

Charge 2

4.  Acting SGT 13450 (PW2) gave chase.  The defendant drove his car along Choi Hung Road (Po Kong Village bound).  He jumped the red lights at the junctions of Tai Shing Street and Shatin Pass Road respectively before making a U-turn.  The defendant only stopped his car when he reached the stationary vehicles at the junction of Choi Hung Road (Mongkok bound) and Tseuk Luk Street.

5.  PW2 approached the defendant's car and gained control of the defendant.  PC 19949 arrested the defendant.  Under caution, he said "I did drive dangerously".

Charge 3

6.  The defendant was a holder of a probationary driving licence.  However, no Small Plates were displayed on his car in accordance with the relevant statutory regulations.

Charge 4

7.  Upon search, a plastic bag which contained 1.01 grammes of a solid containing 0.88 gramme of cocaine (E1) was found inside the defendant's left sock; and a plastic bag which contained 1.04 grammes of a crystalline solid containing 0.38 gramme of methamphetamine (E2) and a foil pack which contained 2 tablets containing 0.01 gramme of nimetazepam (E3) were found inside his right sock.

8.  Under caution, the defendant claimed that E1 to E3 were for his own consumption.

Mitigation & Sentence

9.  The defendant is 29 and single.  He has 4 conviction records involving 4 offences, 2 of which are drug-related. Regarding his traffic record, the defendant was granted his probationary licence in late August 2018.  He received 2 fixed penalty tickets in mid-September 2018 and has 2 convictions for speeding in late September and mid-October 2018.

10.  Defence counsel Mr. Yip informed me that prior to this case, the defendant worked as a kitchen helper earning $13,000 per month.  The defendant's parents were divorced in 1997.  The defendant currently resides with his mother and stepfather.  In view of Charge 4, I adjourned the sentence pending a DATC Report.

11.  Today, Mr. Yip informed me that the DATC Report has been explained to the defendant and he agrees with its contents.  The defendant's background is set out in details in the report.  I need not repeat them here.

12.  Rushing through a police roadblock by suddenly accelerating is a dangerous manoeuvre, which could cause serious injuries or even fatalities to those officers working at the location.  Hence, I adopt a starting point of 6 months' imprisonment for Charge 1.  With the timely guilty plea, the sentence is reduced to 4 months. Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for this charge is 4 months' imprisonment.

13.  Regarding Charge 2, the defendant's driving manner was far below standard.  It is obvious that he drove in such a dangerous way in order to avoid apprehension by the Police.  He also knew better than anyone that he was in possession of dangerous drugs.  An immediate custodial sentence is required.  I have considered the Court of Appeal's decision in SJ v KO Wai Kit, Paul [2001] 3 HKLRD 751.

14.  Although the defendant rushed through a police roadblock, drove dangerously, and disregarded the safety of other road users, I do not consider what he did in Charge 2 falling within the category of the worst of its kind.  Fortunately, no person was injured and no property was damaged as a result of the defendant's driving.  Bearing in mind that the maximum prison term for this offence is 3 years, I adopt a starting point of 12 months.  With the timely guilty plea, the sentence is reduced to 8 months.  The sentence for Charge 2 is 8 months' imprisonment.

15.  For Charge 4, the defendant had in his possession small quantities of cocaine and methamphetamine as well as 2 tablets containing nimetazepam.  Although the DATC Report reveals that he is no longer a drug dependant, he is not new to drug-related offences. Based on the types and quantities of the drugs involved, I adopt a starting point of 12 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 8 months.  The sentence for this charge is 8 months' imprisonment.

16.  Charge 2 is clearly an extension of Charge 1.  I accept that the defendant's intention to escape from the police roadblock led to his commission of Charge 2.  Trying to escape, however, does not necessarily imply driving dangerously.  To a large extent, I consider Charge 2 an aggravation of Charge 1.  On the other hand, the drug offence (Charge 4) is separate and distinct.  In principle, the sentences for the offences related to driving and dangerous drugs should be served consecutively.  Having considered the totality principle, I make the following order :

(i) 2 months in Charge 1 to run consecutive to Charge 2; and

(ii) 6 months in Charge 4 to run consecutive to Charges 1 and 2.

Thus, arriving at a total prison term of 16 months for Charges 1, 2 and 4.

17.  For Charge 2, a disqualification order is inevitable.  I have borne in mind the comments made by the Court of Appeal generally on disqualification orders in SJ v HUNG Ling Kwok [2010] 4 HKLRD 365 and HKSAR v CHAN Kim Ching CACC 69/2014[2].  I make a disqualification order for a period of 18 months[3] (and the disqualification period will start to run from the date of sentencing[4]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[5].  In my view, it is unnecessary to order the defendant to re-take his driving licence test.

18.  For Charge 3, the maximum penalty in the case of a 1^st conviction is a fine of $2,000 and imprisonment for 3 months[6].  Since it is relatively minor offence, I will impose a fine of $500, to be paid forthwith.