HKSAR v. MUHAMMAD WAQAS

DCCC 803/2019

[2020] HKDC 1015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 803 OF 2019

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REASONS FOR SENTENCE

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Background

1.  The defendant is convicted of 5 offences upon his guilty plea and admission of facts (Charges 3, 4, 6, 7 and 8).  Upon the prosecution’s application, I also ordered that Charge 5 is left in the court’s file and shall not be proceeded without further order. Mr Waqas is the 2^nd defendant (D2) and the 1^st defendant in this case has been sentenced to 12 months’ imprisonment for 2 separate charges of attempted theft.  After hearing full mitigation on 8 October 2020, the sentence is adjourned to today for further submission on “material assistance” to police.  If that point is accepted, a defendant may be entitled to about 50% discount from sentence: HKSAR v Cheung Chi Yuen [2018] HKCA 276.  However, I was told by the prosecution that D2 was unable to provide material assistance.  Mr Kelly for D2 agreed.   

Summary of Facts

2.  On 14 April 2019 in the small hours, two commercial premises in Lok Ma Chau area had been burgled. Some gold ornaments (estimated value of HK$10,000, property of Mr Lui, PW3 and Madam Wong, PW4) and pre-signed HSBC cheques belonged to Madam Lo (PW1), BOC (Bank of China) cheques belonged to Mr Chung (PW5) and documents and cheque book of Madam Chung (PW6), were reported missing. 

3.  On 15 April 2019 at 11:30 am, a male attempted to cash a stolen cheque of Madam Lo with face value of HK$45,300.  Feeling suspicious, bank staff reported the case.  The male was arrested.  Call record analysis revealed that there were several telephone calls from the male to D2 on 15 April 2019 (the male was the 1^st defendant in this case).

Charges 3-8

4.  On 17 April 2019 at 00:15 am, police officers were patrolling along Lung Cheong Road near Hollywood Plaza.  It was revealed that D2 was driving a private vehicle bearing number plate RD9279 (the “car”) with an expired licence, police officer gave warning and tried to stop the car but it fled.

5.  In the midst of the chase, D2 drove the car at about 100 km/hour (exceeding the speed limit of 50 km/hour). It bumped into the nearside of the police vehicle twice, resulting in chest pain of two police officers.  The car only came to a halt after it lost control, crashed into a tree at a roadside and flipped over on its side (Charge 3).

6.  After the car was flipped back, 1 plastic bag containing 0.15 gramme of a solid containing cocaine was seized from the driver’s seat (Charge 6).

7.  Stolen property of the burglary incidents (namely, gold ornaments of PW3 and PW4 and documents of PW6, including a cheque book) were found underneath the driver’s seat of the car (Charge 7).

8.  Blood test of D2 confirmed that there is a concentration of 0.10 µg/ml of methamphetamine (commonly known as ICE) and 0.19 µg/ml of drugs (commonly known as Ecstasy) in D2’s blood (Charge 8).

9.  Records of the Transport Department confirmed that D2 bears no valid licence at the material time of the offence (Charge 4).

10.  At the material time of Charge 3, D2 drove the car on a road dangerously, inter alia, by exceeding the speed limit and without paying heed to the traffic condition.  The driving manner of D2 fell far below of what would be expected of a competent and careful driver and it would have been obvious to that driver such driving manner was dangerous in all the circumstances of this case. 

11.  At the material time of Charge 7, D2 dishonestly received some gold ornament and some documents, property belonging to others, knowing or believing the same to be stolen goods.    

Criminal records

12.  Since 2009 and up till August 2017, D2 has 14 convictions of which 4 are dishonest related offence (2 theft and 2 robbery), one conviction is identical to Charge 4 (driving without a valid licence in the year of 2017), one careless driving record in 2017, one conviction is identical to Charge 6 (possession of dangerous drug in the year of 2017).    Last convictions were multiple offences recorded in August 2017 where he received a total sentence of 2 years and 6 months’ imprisonment (on the basis of guilty pleas).   D2 is not only a recidivist, he committed the present offences while on bail (on appeal from DCCC 326/2017 to CACC272/2017).

Mitigation

13.  D2 is aged 26 and married.  He came from Pakistan to Hong Kong in 1993/1994 and became a Hong Kong resident thereafter.  His wife lives in Pakistan.  He received education up to Form 1.

14.  In mitigation, Mr Kelly divided 5 charges into 3 categories and submitted inter alia that: (i) regarding handling stolen goods, value of goods was not high, they were recovered and this case is lacking aggravating factors; (ii) regarding possession of dangerous drug, given the small quantity of cocaine (0.15g), the accepted tariff for possession of dangerous drug does not necessarily apply; (iii) regarding dangerous driving, it is conceded that a few aggravating factors exist in this case.

15.  By way of general comments, D2 committed the present offences whilst on bail in respect of DCCC 326/2017 (CACC 272/2017). D2 has given information to police naming a person who took part in another case involving fake credit card. I was told by the prosecution at the hearing that non prejudicial statement has been taken from D2 earlier on but without fruitful outcome. Mr Kelly said D2 would volunteer further information. I stood the case down for an hour for the police to obtain further information to see if it is meaningful to adjourn the sentence to a date to be fixed. Upon resumption of hearing, I was told that the parties agreed to adjourn the sentence. I assume there is room to explore on the further information. As said before, the parties confirmed today that D2 could not assist further.

Discussion and Sentence

16.  Generally speaking, D2 is a recidivist. His multiple offences (mostly traffic related) and 30 months’ imprisonment in August 2017 did not serve any deterrent effect on him. He has been and was in this case in flagrant breach of law and order. He joined others for criminal activities. He took drugs and drove. He drove irresponsibly and caused real risks to the physical well-being of police and innocent road users.

Charge 3

17. In respect of dangerous driving (Charge 3), the maximum sentence is 3 years’ imprisonment and a fine of $25,000. In Chu Wing Yin CAAR 5/2018, the Court of Appeal propounded two tier approach on dealing with sentence on dangerous driving related offence:

“First, the dominant factor to be considered is the offender’s culpability which will involve two related assessments: (1) the objective dangerousness of the offender’s driving; (2) the moral culpability of the offender. Secondly, closely allied to culpability is the harm and impact caused to victim… .”

18. The aggravating factors in this case include speeding, fleeing from police’s chase to avoid further discovery of further offences, driving in bad manner causing collision with police vehicle, resulting in chest pain of two police officers. These factors justify an increase of 3 months’ imprisonment from the starting point of 9 months. After deducting one third for his guilty plea, the sentence for Charge 3 is 8 months’ imprisonment.

Charge 4

19. In respect of driving without a valid driving licence (Charge 4), the maximum sentence is 3 months’ imprisonment and a fine of $5,000, which is increased to 6 months’ imprisonment and a fine of $10,000 upon second conviction. Usual sentence is one of financial penalty or short term imprisonment. I adopt a starting point of 6 weeks’ imprisonment and deduct one third for his guilty plea, resulting in 4 weeks’ imprisonment.

Charge 6

20. In respect of possession of dangerous drugs (Charge 6), the usual starting point is between 12 to 18 months: HKSAR v Mok Tso Tik [2001] 1 HKC 261. In Wan Sheung Sum [2000] 1 HKLRD 405, the appellant received a total of 22 months’ imprisonment for his similar criminal records and latent risk factor. In the present case, D2 was having 0.15 grammes of cocaine with him, there is no latent risk factor in the present case. However, having considered the circumstances, the Court of Appeal in HKSAR v Muhammad Waqas CACC 272/2017 imposed one month’s imprisonment on the defendant, so happened is D2 in this case.

“[para. 73] The only guidance this court can give in respect of sentencing an offender at this lower end of the culpability range is to make the obvious point that the lower the level of culpability the less harsh the sentence will be.”

21. Each case depends on its own facts. It does not alter the fact of the present case that D2’s possession of drugs involves higher level of culpability. First, despite the lenient sentence imposed on the last occasion, it failed to serve deterrent effect on D2. Second, he committed the present offences while on bail and shortly after his release. Third, he was involved in drug driving. If a court relies upon previous offending as an aggravating feature, it does not necessarily require “more than a single previous instance of similar offending”: HKSAR v Chau Hon Kwong [2011] 1 HLLRD 630. I consider a starting point of 12 months’ imprisonment appropriate and deduct one third for his guilty plea, resulting in 8 months’ imprisonment.

Charge 7

22. I now turn to the handling charge (Charge 7). I bear in mind that the primary offence of burglary of non-domestic premises would normally attract a starting point of 2½ years’ imprisonment, and that it has been pointed out in R v Chan Wing Kwan and another CACC 121/1985 that “(a)n examination of a number of other cases of handling stolen goods shows that the normal bracket of sentence runs between 2 and 4 years. Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled.” (Paragraph 46 of the judgment). See also the recent case of HKSAR v Raman Kumar CACC 324/2017.

23. When determining the starting point, I have also borne in mind the sentencing principles laid down by the English Court of Appeal in R v Webbe (Bernard) [2002] 1 Cr App R (S) 22 (which were adopted and applied by the Court of Appeal in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360). Mr Kelly fairly accepted that there is proximity or closeness of D2 to the burglary offence and D1’s attempted theft. Simply put, the burglary took place on 14^th April, D1’s attempted theft happened on 15^th April (there were calls from D1 to D2) and D2’s multiple offences took place on 17^th April and would have continued but for police’s discovery.

24. D2 was closely connected with the burglary offence and D1’s attempted theft for which he was not charged, I adopt a starting point of 24 months’ imprisonment for Charge 7 and deduct one third for his guilty plea, resulting in 16 months’ imprisonment.

Charge 8

25. In respect of driving with illicit drugs (Charge 8), the maximum sentence is a fine at Level 4 and to imprisonment for 3 years. Besides, the court must order that the convicted person be disqualified for a first conviction a period of not less than 2 years.

26. The Court of Appeal in SJ v Chan Hon Hoi CAAR 8/2010, said, at page 814, that:-

“23. Vehicles, in the hands of irresponsible drivers, can be lethal weapons as demonstrated by the catastrophic consequences of serious traffic accidents.

24. Driving is a very complex skill determined by changes in physical, emotional and mental conditions all of which can be impaired by the use of drugs. Drugs also impair motor co-ordination skills and judgment, rendering a driver incapable of driving responsibly and safely. Driving under the influence of drugs is a clear danger on the roads and must be deterred in order to protect the public at large.”

“27. Drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence.”

27. At the material time, D2 was found to have “ICE” and “Ecstasy” in his blood. Taking into account the facts of this case, this drug driving scenario is not taken lightly and shall be treated as serious category of dangerous driving. I adopt a starting point of 18 months’ imprisonment for Charge 8 and deduct one third for his guilty plea, resulting in 12 months’ imprisonment. I also order that D2 be disqualified for driving all classes of vehicles for a period of 3 years and a re-test order under section 70 of the Road Traffic Ordinance so that he cannot drive after the disqualification period until he has passed a test of competence to drive.

Totality and Conclusion

28. In a nutshell, the individual sentence should be:

Charge 3: 12 months – 1/3 = 8 months

Charge 4: 6 weeks – 1/3 = 4 weeks

Charge 6: 12 months – 1/3 = 8 months

Charge 7: 24 months – 1/3 = 16 months

Charge 8: 18 months – 1/3 = 12 months + 3 years’ disqualification + re-test order

29. Bearing in mind the totality principle and to avoid the total sentence being excessive, I consider a global starting point of 54 months' imprisonment appropriate for all 5 charges. For the avoidance of doubt, the global starting point has merged with the factors of recidivist and commission of offence while on bail. With the timely guilty pleas, the overall sentence is reduced to 36 months. To achieve this, I order the sentences to run in the following manner:-

(i) Charges 3, 4 and 8: concurrent;

(ii) Charges 6 and 7: consecutive to other charges.