HKSAR v. CHAN HO WING

DCCC 443/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 443OF 2013

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Reasons for Sentence

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Charges

1.  The defendant pleads guilty to the following charges:

(1) Driving whilst disqualified (1^st charge);

(2) Driving an unlicensed vehicle (2^nd charge);

(3) Using a motor vehicle without third party insurance (3^rd charge);

(4) Possession of dangerous drugs (4^th charge).

Facts

2.  In the evening on 10 March 2013, PC8633 saw the defendant acting suspiciously outside a garage in Tuen Mun.  There was a person, Chung, next to him.  He was trying to open the door of the garage with various keys[1]. PC8633 approached him for enquiry.  A search of the shoulder bag he was carrying revealed 11 plastic bags with 19.56 g of a powder containing 15.35 g of ketamine and 0.67 g of a solid containing 0.59 g of cocaine.  The police estimated that the street value of the dangerous drugs was over $4,000.  He was also in possession of his China Re-entry Card, 3 mobile phones, over $7,000 cash, and RMB¥270.  These constituted the 4^th charge. 

3.  After arrest and caution, he admitted possession of the shoulder bag, which was taken out from a car RL2224.  The car was parked outside the garage.  The ignition key was still inserted in the key hole.  He also admitted having driven Chung from San Hui to the garage, both locations in Tuen Mun on the same day of the arrest.  This was in breach of a disqualification order[2] (1^st charge).  The vehicle was unlicensed (2^nd charge).  There was no third party insurance for his use of the car (3^rd charge). 

Personal background and mitigation

4.  The defendant is 28 years of age, F. 3 education level.  He last worked as a delivery worker.  He has to financially support his aged mother.  He had suffered from diabetes since 2009.  He began to toy with dangerous drugs in 2003. 

5.  Apart from other criminal records, he had 4 records for possession of dangerous drugs from 2003 to 2012.  He had been sentenced to DATC and prison.  According to his explanation given in the DATC Report, he had stayed clear of dangerous drugs since 2009 and the dangerous drugs in question actually belonged to a friend.     

6.  He had a recent record each for driving while disqualified, driving an unlicensed vehicle and using a motor vehicle without third party insurance in 2012.  There is no special reason provided for not disqualifying him from holding a driving licence.    

Sentencing considerations

7.  There are no tariff guidelines for the offences in question.  The DATC Report considered him not suitable for admission to DATC as he was not a drug dependant.  I am referred to various magistracy appeal sentences.  Short terms of imprisonment for similar road traffic offences were upheld on appeal (HKSAR v Siu Yat Ping HCMA 448/2011; HKSAR v Ng Suen-wai HCMA 375/2003; HKSAR v Chan Chuk Hon HCMA 623/2005). 

Sentencing this defendant

8.  The defendant has no mitigating factors except for his pleas of guilty for each of the charges. 

9.  He was a recidivist for possession of dangerous drugs.  Besides, he had no scruples about keeping the ketamine for an alleged friend, who was not identified.  The latent risk was considerable.  I take 18 months as the starting point (4^th charge).  I reduce it by one-third for his plea of guilty.  The sentence is 12 months. 

10.  As the recent similar records for road traffic offences had failed to deter him, I had to take a higher starting point. The sentences shall be as follows:

(1) For driving whilst disqualified (1^st charge), I take a starting point of 6 months. I reduce it by one-third for his plea of guilty. The sentence is 4 months. As this is a second conviction within 5 years, I disqualify him from holding any driving licence for 3 years and 6 months;

(2) For using a motor vehicle without third party insurance (3^rd charge), I take a starting point of 6 months. I reduce it by one-third for his plea of guilty. The sentence is 4 months. I disqualify him from holding any driving licence for 18 months. This shall be concurrent with the disqualification period under the 1^st charge;

(3) For driving an unlicensed vehicle (2^nd charge), I take a starting point of 9 weeks. I reduce it to 6 weeks for his plea of guilty.

11.  The drug possession offence and the group of road traffic offences related to separate circumstances, hence consecutive sentences.  The road traffic offences had substantially overlapping elements among themselves.  This shall warrant overlapping sentences.  By totality, the overall sentence is 16 months upon the following adjustments:

(1) Possession of dangerous drugs (4^th charge), 12 months;

(2) Driving whilst disqualified (1^st charge), 4 months, consecutive to 4^th charge;

(3) Using a motor vehicle without third party insurance (3^rd charge), 4 months, concurrent with 1^st and 2^nd charges but consecutive to 4^th charge;

(4) Driving an unlicensed vehicle (2^nd charge), 6 weeks, concurrent with 1^st and 3^rd charges but consecutive to 4^th charge.