HKSAR v. CHIU PUI MING

DCCC 939/2022

[2023] HKDC 1638

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 939 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 6 charges:-

(1)  Dangerous driving;

(2)  &(3)  Breach of condition of learner’s driving license;

(4)  Using a motor vehicle without third party insurance;

(5)  Trafficking in dangerous drugs;

(6)  Possession of offensive weapons in a public place.

This is the summary of facts from the Prosecution.

Incident

2.  At around 1655 hours on 15 April 2022, while PC21562 and PC14967 were on a police car bearing registration mark of AM8066 (“Police Car”)  conducting traffic enforcement near Lung Cheung Road Lookout, PC21562 found that the vehicle licence of a private car bearing registration mark of XP3700 (“V”)  driven by D was expired.  The Police Car immediately followed V.  At around 1656 hours, V was on the first left lane while the Police Car was behind V on the second left lane.  PC21562 used a loudspeaker to instruct D to turn on the hazard flasher and stop near the Caritas Medical Centre.  D turned on the hazard flasher of V. As V approached the Caritas Medical Centre, PC21562 instructed D to stop again, but D continued to drive along the first left lane.  PC21562 instructed D to stop again, but D continued to drive and accelerated while switching lanes and overtaking other vehicles.  Seeing this, PC21562 immediately turned on the siren and chased V along Lung Cheung Road.  PC21562 continued to use the loudspeaker to instruct D to stop, which was ignored by D.

3.  The Police Car followed V to the Butterfly Valley and turned left into Cheung Sha Wan Road.  PC21562 continuously used the loudspeaker to instruct D to stop, which was ignored by D.

4.  At around 1659 hours on the same day, as V approached the junction of Cheung Sha Wan Road and Cheung Lai Street, the traffic light was red but V did not stop.  While V drove past the red light by squeezing into the gap between the vehicles on the second and third left lanes, it hit some of the vehicles which were stopped in front of the red light, including, FC8896, FJ150, RT2505 and TB1659.

5.  As V approached the junction of Cheung Sha Wan Road and Tai Nan West Street, it drove past a red light again and switched between lanes.  As V approached the junction of Cheung Sha Wan Road and Cheung Wah Street, the traffic light was red and there were vehicles stopped in front of the red light.  The first vehicle in front of the red light on the third right lane was a white truck (SS8313).  V did not stop and drove onto the grass area next to the third left lane.  Then, V drove back into the road by overtaking SS8313.  In the process of squeezing into the gap between SS8313 and the traffic light, V hit SS8313.  V continued to drive and jumped another red light.

6.  As V approached the junction of Cheung Sha Wan Road and Hing Wah Street, the traffic light was red and there were pedestrians crossing the road.  V did not stop and drove past the red light.

7.  At around 1700 hours, as V turned left into Lai Chi Kok Road and drove towards Tonkin Street, V drove past a red light again.  V continued to drive and jumped another red light.

8.  As V approached the junction of Tonkin Street and Tung Chau Street, the traffic light was red but V did not stop and drove past the red light by squeezing into the gap between the vehicles stopped in front of the red light.  In the process, V hit another vehicle (TD104).

9.  At around 1701 hours, as V approached the junction of Tonkin Street and Sham Mong Road, the traffic light was red and there were vehicles stopped in front of the traffic light.  V did not stop and squeezed into the first left lane.  In the process, V hit a vehicle (NX5518).  V switched between lanes as it continued to travel along the road.

10.  As V approached the junction of Sham Mong Road and Tung Chau Street, it drove past a red light.  As V approached Chui Yu Road from Tung Chau Street, it drove past a red light again.  As V approached the junction of Sham Mong Road and Chui Yu Road, D squeezed into the gap between a motorcycle on the second left lane and a private car on the third left lane, and turned left into Chui Yu Road by driving past a red light.

11.  At around 1702 hours, as V approached the junction of Chui Yu Road and Tung Chau Street, it turned right into Chui Yu Road when the road sign indicated a turn-left-only arrow.  As V approached the junction of Chui Yu Road and Sham Mong Road, the traffic light was red and there were vehicles stopped in front of the red light.  V did not stop and squeezed into the gap between two cars, which were on the second and third left lanes respectively.  In the process, V hit two vehicles (PE867 and MA6688).  V turned left into Sham Mong Road.  As V approached Cherry Street from Sham Mong Road, V did not stop in front of the red light and turned left into Cherry Street.

12.  At around 1703 hours, V continued to drive along and jumped two more red lights.  Then, it turned left into the West Kowloon Corridor against another red light.  In the process, V overtook multiple vehicles and constantly switched between lanes.

13.  At around 1705 hours, V entered Lai Chi Kok Road and turned left into Po Lun Street.  As V approached the junction of Po Lun Street (south)  and Sham Mong Road, the traffic light was red and there were vehicles parked in front of the red light.  V did not stop and drove past the red light towards Po Lun Street (north)  on the opposite lane.

14.  At around 1706 hours, V approached Po Lun Street (south)  near Manhattan Hill.  As there was a dead end, V turned around and entered Po Lun Street (north).  PC14967 stopped the Police Car in an attempt to block V.  Nonetheless, V accelerated and hit the nearside of the Police Car.  Then, V entered Lai Chi Kok Road West from Po Lun Street (north).  After turning right into Cheung Sha Wan Road, V turned left into Castle Peak Road.  PC21562 continuously instructed D to stop V through a loudspeaker, but was ignored by D.  V continued to travel along.

15.  At around 1713 hours, V drove past a red light on Tai Hom Road.  V continued to travel and the Police Car continued to chase after it.  At around 1716 hours, as V approached Clear Water Bay Road near Good Hope School, it turned right into New Clear Water Bay Road (west)  on the opposite lane.  At around 1717 hours, after driving past a red light on the New Clear Water Bay Road near Shun Lee Disciplined Services Quarters, V drove past a red light and turned left into Lee On Road.  At around 1718 hours, V drove into Shun On Road against a red light on the opposite lane.  Then, V turned left into Shun Lee Tsuen Road from Shun On Road.  In the process, V hit a vehicle (ND333).

16.  At around 1719 hours, as V approached Sau Mau Ping Road from Shun Lee Tsuen Road, the traffic light was red and there were vehicles waiting in front of the red light.  V did not stop and drove towards Sau Mau Ping Road on the opposite lane.  V continued to travel along.

17.  At around 1720 hours, as V approached the junction of Hiu Kwong Street and Sau Ming Road, the traffic light was red but V did not stop and drove past the red light into Hiu Kwong Street against the road sign.  As V approached Hip Wo Street, it collided with a taxi (MH4323)  and stopped. D alighted from V and fled from the scene.  The police followed and intercepted D.  D was arrested. D was the only person on V.  V did not have a plate, namely a plate to be displayed by a learner driver, displayed on it.

18.  The police chased V for around 25 minutes.  The above was captured by the camcorders of the Police car, FJ150, NX5518, ND333 and MH4323 while the CCTV outside Wah Fung Garden captured D escaping from the scene.

19.  As a result of D’s above driving, the above vehicles suffered from the following damage:

	Vehicle	Location of damage	Cost of repair (HK$)
1	FJ150	Right rear rear and bumper	15,000
2	RT2505	Right door, outer mirror, passenger door, driver’s door and bumpers	40,000
3	TB1659	Right tire and bumper	6,000
4	SS8313	Right front car, bumper and right head light	4,500
5	TD104	Right front and right splash shied	40,500
6	NX5518	Left bumper, combination lamp and left rear area	8,000
7	PE867	Right rear door, right splash shield and bumper	10,700
8	MA6688	Left rear area and bumper	30,000
9	ND333	Right rear area and bumper	6,000
10	MH4323	Right rear area	4,000

20.  As a result of D’s above driving, drivers and passengers of the above vehicles suffered from the following injuries:

	Vehicle	Driver/passenger	Injury
1	RT2505	Chan Ping Lam (driver)	Tenderness on upper cervical, thoracic spine, right trapezius
2	RT2505	Cheng Wai Chun (passenger)	Pain over neck and lower back
3	TD104	Man Kai Fung (driver)	Tenderness on right trapezius muscle
4	MH4323	Lo Kwong Ming (driver)	Sprained neck, sprained back and chest wall pain
5	Police Car	PC14967 (driver)	Tenderness on right wrist and right thigh

Arrest, searches and caution

21.  At around 1738 hours on the same day, upon search on V, two transparent resealable plastic bags were found under and near the driver’s seat.  One of them contained 27 grammes of a solid containing 21.4 grammes of ketamine and the other contained 0.75 grammes of a solid containing 0.58 grammes of ketamine.  Further, a HK$10 bank note folded into a packet containing traces of cocaine was found near the driver’s seat.  Government chemist subsequently confirmed the above narcotic content.

22.  At around 1745 hours on the same day, a luggage containing four beef knives were found in the trunk of V.

23.  From around 1959 to 2019 hours on the same day, the following items were seized from V:

(a)  A transparent re-sealable plastic bag containing 27 grammes of a solid containing 21.4 grammes of ketamine;

(b)  A transparent re-sealable plastic bag containing 0.75 grammes of a solid containing 0.58 grammes of ketamine;

(c)  A HK$10 bank note folded into a packet containing traces of cocaine;

(d)  217 transparent re-sealable plastic bags;

(e)  An electronic scale;

(f)  4 beef knives;

(g)  3 knife cases;

(h)  4 KEVSEN walkie-talkies; and

(i)  HK$13,500 cash.

24.  From around 2040 to 2043 hours, upon body search on D, the following items were found on D:

(a)  HK$15,092.60 cash;

(b)  RMB¥1 cash;

(c)  An iPhone containing 1 sim card;

(d)  An iPhone containing 2 sim cards; and

(e)  An iPhone containing 1 sim card.

25.  During a subsequent video-recorded interview, D stated inter alia:

(a)  On 15 April 2022, D drove XP3700 (ie V)  as he borrowed it from a friend. He was acquainted with this friend while drinking three weeks ago.

(b)  D had a learner’s driving licence.

(c)  D confirmed that the T-shirt, shorts, sports pants and sneakers seized were worn by him on 15 April 2022.

(d)  D did not stop V when being instructed by the police because he did not have a formal driving licence (“因為我冇正式既駕駛執照”).

Investigation

26.  TD573 showed that on 28 April 2022, D only had a Learner’s Driving Licence of Class 01 and 02, covering the period from 3 June 2021 to 2 June 2022.

Criminal record

27.  The D has five criminal records between 2006 to 2012, four  of which related to possession of dangerous drugs and one of robbery in 2006.

28.  Traffic conviction records:-

(1)  Failing to carry driving license when driving;

(2)  Failing to display “L” plates

(3)  Learner driver driving outside permitted hour

(4)  Learner driver not accompanied

Background

29.  The D is now 31 years old, he married in 2018, his wife lives in Mainland China.  The D used to run a business with his three other partners.  However, due to social unrest and the outbreak of the pandemic, the shops were now closed down.  The D then worked as a car mechanic with a monthly income of $16,000.  The defence in mitigation said that the D is now remorseful.  He wishes an early release from prison to look after his parents.

Charge 1

Dangerous driving - the maximum sentence is 3 years.

30.  There is no doubt in my mind that it is an extremely bad case of dangerous driving.

31.  By looking at the 25 minutes of the videos from the car camera, I can only say that the summary of facts cannot fully describe the actual situation of the whole period of chase by the police vehicle.

32.  The D drove through red lights in Kowloon for some 24 times.  When he did that, traffic on the side of green lights would not anticipate that a vehicle would drive in such a frenetic way.

33.  He ignored the police warnings to stop for numerous occasions.  He drove dangerously over a distance of about 29 km.  There were numerous occasions he drove over double white lines, chevron on the high ways, against traffic and hit other vehicles. 

34.  Certain areas have pedestrians; one of the pedestrians had to jump off the road to avoid him.  Some other motorcyclists have to avoid his vehicle by driving aside to give away to him in the front of the red light.  He drove in high speed of about 69.9 km/hr when the speed limit in town is 50 km/hr.

35.  The body of the police vehicle AM8066 was badly damaged; the cost of repair was around $300,000.

36.  According to S 37(7)  of the Road Traffic Ordinance, Cap 374:-

“7. For the purposes of subsections (4)  and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including—

(a)  the nature, condition and use of the road concerned at the material time;

(b)  the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c)  the circumstances (including the physical condition of the accused)  of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused)  shown to have been within the knowledge of the accused.”

37.  According to S 37(6), dangerous means: “danger either of injury to any person or of serious damage to property.”

38.  In the present case, there were 10 civilian vehicles being damage, and the repair costs as stated in the summary of facts were from $4,000 to $40,500 (an average of $16,470).

39.  There were 5 injured persons, 4 of them were drivers and one was a passenger.  One of them was the police driver who was responsible for chasing the defendant’s vehicle.  The D simply put the police driver and the police inside the vehicle in great risk knowing that the police had asked him with loudspeaker to stop.  Nonetheless, he continued to drive irresponsibility for 25 minutes.

40.  All these vehicles owners and innocent injured persons could not recover any lost from the D as he was not in insured.

41.  His driving was not only dangerous to other road users, but was also irresponsible and outrageous.

42.  The D was in luck that the maximum sentence is only 3 years.  This is the starting point that I am going to take – 3 years – I reduce to 2 years because of the D’s guilty plea.

43.  I also disqualify the D from driving any vehicle and obtaining any type of driving licence for a period of 3 years.

Charges 2 – learner’s driver not accompanied by instructor

Charge 3 – without displaying a “L” plate by learner’s driver

44.  As to Charges 2 and 3 , the maximum sentence is 3 months, in view of the circumstances of the case, I consider a starting point of 3 months is appropriate , I reduce to 2 months after 1/3 discount.

Charge 4 - Using a motor vehicle without a third party insurance

45.  As stated in the judgement of R v Lui Wing Han [1997] HKCU 224 that:-

“Driving while disqualified and hence, without third party insurance, is a very serious offence as other innocent road users who are injured in any traffic accident may be left without any compensation.”

46.  As I have said earlier that the drivers and passengers could not claim against the D for the repair cost and/or the pain and sufferings of their injuries.  At least the unfortunate 62 years old taxi driver could not claim the loss of earnings from the D. 

47.  In such circumstances, I consider that:-

(a)  the starting point should be 12 months and reduce to 8 months to reflect the gravity of the offence; and

(b)  a disqualification for a period of 3 years from the date of conviction.

Charge 5

48.  This is the charge of trafficking in dangerous drugs of 21.98 grammes of ketamine and traces of cocaine.

49.  Since the quantity of the cocaine cannot be quantified and it has no bearing in sentence of this charge, I take 21.98 grammes of ketamine as the base drug for sentence.

50.  The applicable sentencing guideline for ketamine can be found in Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1 that for a quantity of 21.98 grammes, it falls into the sentencing bracket of 4 to 6 years.  The starting point is therefore 4 years 7 months, given 1/3 discount, it reduces to 36 months 18 days.

Self-consumption

51.  The D also claimed that 1/3 of the drugs was for his self-consumption, that means about 7 grammes of the total drugs were for his own used.

52.  The Prosecution refused to accept the claim of the self-consumption on the ground that:-

(a)  there were altogether 217 small resealable plastic bags;

(b)  electronic scale;

(c)  3 phones with 4 sim cards;

(d)  the D did not give any explanation under caution;

(e)  the oral fluid test at the scene was negative of drugs/alcohol; and

(f)  the urine text report after he was remanded did not indicate any presence of ketamine.

53.  As said in the case of HKSAR v Cheung Wai Man CACC 258/2017 that :-

“54. We would stress that it is fundamental that a claim of self-consumption needs to be established to the sentencing court’s satisfaction. There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidential basis in accepting the contention that a “significant proportion” of the drugs were for the defendant’s own consumption. Mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice. The prosecution also has an important role to play in assisting the court in resolving such a claim. If the prosecution has information and material that addresses the claim one way or the other, they should ensure that the court is appropriately informed of it. It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form. See HKSAR v Chong Chee Meng [2008] 6 HKC 407, paragraphs 19 to 50.

54.  Also in the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the Court also said that given 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. The Court also listed a number of factors for consideration whether a case of self-consumption was established.

55.  The defence informed me that there was firm instruction from the D that he would not give evidence on this point of mitigation.

56.  I refused to accept the assertion that 1/3 of the drugs were for his own consumption for the following reasons:-

(a)  The drugs were seized under and near to the driver’s seat in 2 separate packets. One packet contained 27 g of a solid containing 21.4 g of ketamine. The other packet containing 0.75 g of a solid containing 0.58 g of ketamine.

(b)  The D said that 1/3 of drugs were for his own use. That was about 7 grammes. He used 1 g a day. The rest was for selling to others.

(c)  The oral fluid test at the scene was negative in detecting any drugs from the D.

(d)  However, why did he need 217 resealable plastic bags in his car next to the drugs for the remaining 14.98g of ketamine?

(e)  Other items including an electronic scale. Clearly, that was for weighing of the drugs and they are for selling purposes.

(f)  There were also $13,500 cash on the passenger seat next to the driver seat, the only influence was that the D put the drugs under the driver seat together with resealable plastic bags for convenient access. When he received money from the buyers, he put the cash on the passenger seat.

(g)  In the car, there were HK$13,500 on the passenger seat and HK$15,092.60 in the D’s person. They were altogether $28,592.60.

(h)  The D said that $10,000 was part of the salary he earned and received on 7 April 2021. He spent $6,000 already.

(i)  That means for about a week, he did not spend any part of his income. It was totally unbelievable.

(j)  On the other hand, it was a lucrative business by selling dangerous drugs. Assuming $10,000 was truly his income as there was still $18,592.60 in cash with him.

(k)  In the last paragraph of the mitigation bundle, the defence said that “he was hard-pressed financially at that time”.

(l)  During mitigation, the D claimed to earn a living of $16,000 per month, but without any bank records to support his claim because he did not have a bank account. He conveniently said that it was closed by the bank. I simply do not believe it as he used to run a business from 2019 to 2021.

(m)  The D’s last conviction was for possession of dangerous drugs in 2012.

(n)  There were no tools for the consumption of drugs found in car.

57.  Looking all the factors together, it is not difficult to reach the conclusion that no portion of the drug was for his own consumption; I conclude that he is not entitled to any further discount, as his claim for self-consumption mitigation was not established.

Charge 6 - Possession of offensive weapons

58.  The maximum sentence is 3 years.

59.  The D said that he borrowed the car from an acquaintance whom he met about 3 weeks before the incident.  The 4 beef knives were already inside a suitcase in the trunk of the vehicle.  Nevertheless, the D did not return to his acquaintance and continued to keep them.

60.  One would wonder why an acquaintance without ascertaining whether the D had a license to drive or not would trust the D and allowed him to drive his own car.

61.  However, when the police checked with the car owner, he claimed that the car did not belong to him.

62.  Only the D knows the true story of the car ownership and he knows I find the circumstances very dubious.

63.  I have seen and examined the 4 knives in Court.  They look brand new to me and they are of good quality.  The handle of all the knives have such a shape and material to provide a firm grip.

64.  The blades were all sharp, therefore, there were 3 good blade covers to cover the sharp knives.  However, one blade cover was missing.

65.  The blades were all 32 cm long with 17 cm in handles.

66.  There were also 4 walkie-talkies in the car.

67.  The only irresistible inference was that the 4 knives were to be used by 4 persons.  These 4 persons can cover certain areas and communicate to each other.

68.  I praise the police had done a great job to stop and prevent serious crimes from happening in the present case.

69.  I consider that a sentence of 18 months as starting point is appropriate; I reduce the sentence to 12 months to reflect his guilty plea.

Totality

70.  The defence urged me to impose concurrent sentences for the driving offences; they are Charges 1 to 4.  I disagree, as it cannot reflect the gravity of the individual offence.

71.  I considered that a period of 5 years imprisonment is sufficient to reflect the culpability of the D and the gravity of all the offences. 

	Individual sentence after 1/3 discount		All sentences from the following charges to run consecutively to Charge 5
1	Dangerous driving	2 years	12 months
2	Breach of condition of learner’s driving licence	2 months	6 days
3	Breach of condition of learner’s driving licence	2 months	6 days
4	Using a motor vehicle without third party insurance	8 months	4 months
5	Trafficking in dangerous drugs	36 months 18 days
6	Possession of offensive weapons in a public place	12 months	7 months
	TOTAL:		59 months and 30 days.  That is 60 months.

Disqualification period

72.  The disqualification period in charge 1 and 4 are to be run concurrently.  I do not impose an order for the D to attend the driving improvement course because he did not have a driving license.