HKSAR v. LOI KAN CHI

DCCC 105/2021

[2021] HKDC 804

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 105 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Dangerous driving" (Charge 1); 3 charges of "Resisting a police officer in the execution of his duty[2]" (Charges 2 to 4); a charge of "Possession of a dangerous drug" (Charge 5); and a charge of "Driving a motor vehicle with any concentration of a specified illicit drug" (Charge 6).

Summary of Facts

2.  This case arose from an inspection at a police roadblock set up near Lamppost No.AB0723 at West Kowloon Highway ("the Roadblock").

Charge 1

3.  Around midnight on 24 October 2020, PC 9216 (PW1)  approached a private car WT619 ("the Car")  stopped at the Roadblock.  He asked the driver (later identified as the defendant)  to show his driving licence and identity card.  The defendant ignored PW1 and drove off.  Two police vehicles (PV1 and PV2)  respectively driven by PC 11236 (PW2)  and SGT 53819 (PW3)  immediately gave chase.  IP H.W. Cheung (PW4)  and SIP K.Z. Leung (PW5)  were also on board of PVs 1 and 2 respectively.

4.  The sirens and flashing lights of both PVs 1 and 2 were switched on.  Police officers on board used loudhailers to order the Car to stop numerous times.  The defendant ignored the instructions and continued to drive for about 10 minutes (13 km)  before being blocked by PVs 1 and 2.

5.  When being pursued by PVs 1 and 2, the defendant drove the Car at 90 to 190 km/h.  The speed limits of the road segments covered by the pursuit ranged from 50 to 80 km/h.  The defendant overtook a number of cars by changing lanes; jumped 7 red lights; and drove on the wrong side of the road twice.

6.  PVs 1 and 2 managed to box in the Car when the defendant attempted to make a U-turn outside a school at No.300 Nam Cheong Street in Shek Kip Mei.  PWs 4 and 5 rushed to the Car, but the defendant refused to get out and continued to reverse the Car.  PWs 4 and 5 used their batons to hit the windscreen and the driver's window of the Car. 

7.  The defendant alighted from the Car and tried to escape. The Car slid forward without a driver.  Its rear offside collided with the front nearside of PV2.

Charges 2 to 4

8.  PW5 tried to subdue the defendant at the rear nearside of PV2.  The defendant waved his hands and tried to kick PW5's lower body.  PW5 ordered him to stop; or otherwise PW5 would use his baton.  The defendant ignored PW5 and continued to resist vigorously.

9.  PWs 2 to 4 assisted PW5 in subduing the defendant.  The defendant resisted and kept pulling PWs 2 to 5 towards the pavement.  During the struggle, PWs 2 and 3 were pushed onto the railings at the pavement.  When the defendant was pressed on the ground by PWs 2 to 5, he continued waving his arms and kicking his legs.  PW4's arm was kicked by the defendant during the struggle.

10.  Subsequent medical examination confirmed that PW2 sustained tenderness, abrasion and swelling on his right forearm; PW3, tenderness on right elbow, tenderness and bruising on right hand; and PW4, tenderness and abrasion on both arms.

Charge 5

11.  About 12:25 a.m. on the same day, PW2 searched the Car in the presence of the defendant.  He found 2 transparent resealable plastic bags which contained traces of ketamine underneath the driver's seat. 

Charge 6

12.  About 1:00 in the same night, PW2 conducted a Drug Influence Recognition Observation test on the defendant, which he failed.  The defendant's blood sample was taken on the same day and sent to the Government Laboratory for analysis.  The results revealed that his blood sample contained 0.18 μg/ml of ketamine.

Mitigation & Sentence

13.  The defendant is 37 and has 10 conviction records which included 1 "Drink driving" offence, 3 "Resisting a police officer" offences and 4 "simple possession" offences.  In terms of traffic record, the defendant has 4 convictions of "Careless driving" and 16 fixed penalty tickets (10 of which were "Speeding").

14.  Defence solicitor Mr. Cheung informed me that the defendant and his girlfriend have a son (almost 11 months old).  Prior to the present case, he worked as a finance consultant earning $25,000 per month.  According to the DATC Report, the defendant started using ketamine in 2011 but stopped in 2015.  He relapsed into his drug habit in 2020 due to the stress arising from the birth of his son.

15.  In mitigation, Mr. Cheung submitted that the defendant tried to escape police inspection from the Roadblock because he wanted to look after his then new born son and did not want to get caught.

Charge 1

16.  I have viewed the footage of the pursuit of the Car captured by cameras installed on PVs 1 and 2.  The defendant's driving manner was beyond appalling.  He drove in such a dangerous way in order to avoid apprehension by the Police.  It would not be exaggerating to say that he had disobeyed pretty much all the traffic regulations, signs, signals and road markings along the way.  It was most fortunate that he did not hit any pedestrians or crash into any vehicles.

17.  I have considered the Court of Appeal's decision in SJ v KO Wai Kit, Paul [2001] 3 HKLRD 751.  Since ketamine was found in the defendant's blood sample, the maximum prison term for this offence is increased by 50% from 3 years to 4.5 years[3].  I adopt a starting point of 3 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 24 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence the defendant to 24 months' imprisonment for this charge.

Charges 2 to 4

18.  The defendant should consider himself lucky that he is charged under the Police Force Ordinance instead of the Offences against the Person Ordinance (Cap.212). The former carries a maximum term of 6 months' imprisonment; whereas the latter, 2 years.  Considering the injuries of PWs 2 to 4, I adopt a starting point of 4.5 months' imprisonment for each charge.  With the timely guilty plea, the sentence is reduced to 3 months each.  I sentence the defendant to 3 months' imprisonment each for Charges 2 to 4.

Charge 5

19.  The defendant had in his possession traces of ketamine.  Although the DATC Report reveals that he is no longer a drug dependant, he is not new to drug-related offences.  Based on the type and quantity of the drug involved, I adopt a starting point of 9 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 6 months.  I sentence the defendant to 6 months' imprisonment for this charge.

Charge 6

20.  The defendant knew better than anyone that he had consumed ketamine before he sat behind the steering wheel.  His driving manner, affected by the drug or not, was appalling.  An immediate custodial sentence is required.  Bearing in mind the maximum penalty for this offence[4], I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 4 months.

Overall sentence

21.  The ketamine involved in Charge 5 was probably the leftover of what the defendant had consumed in that evening.  Charge 6 is clearly an aggravation of Charge 1; and I have reminded myself not to punish the defendant twice.  On the other hand, Charges 2 to 4 are separate and distinct from the driving and drug-related offences.  Having considered the totality principle, I make the following order :

(i)  Charges 1, 5 and 6 to run concurrently; and

(ii)  Charges 2 to 4 to run concurrently, but 2 months consecutive to Charges 1, 5 and 6.

Thus, arriving at a total prison term of 26 months for all 6 charges.

Other orders

22.  For Charge 1, 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[5].  Since ketamine was found in the defendant's blood sample and this is his 1^st conviction of "Dangerous driving", the disqualification period for this offence is increased by 50% from not less than 6 months to not less than 9 months.  I make a disqualification order for a period of 2 years[6]. The defendant has a "Drink driving" conviction dated October 2010, which is a "relevant scheduled offence" for the purpose of section 69A of Cap.374.  I am aware that 5 years have passed since the defendant's last conviction of a "relevant scheduled offence".  Notwithstanding section 69A(3)  of Cap.374, I order that the disqualification order for Charge 1 shall not start to run until the defendant has finished serving the term of imprisonment imposed in the present case[7].

23.  The defendant's driving manner renders him a serious threat and danger to other road users.  In order to rectify his reckless and irresponsible behaviour, I order him to be re-tested[8] for Charge 1.  On this basis, I do not see the need to order him to complete a Driving Improvement Course.  I make no order in this regard for Charges 1 or 6.

24.  For Charge 6, I also make a disqualification order for a period of 2 years[9]. For the same reasons explained in paragraph 22 above, I order that the disqualification order for Charge 6 shall not start to run until the defendant has finished serving the term of imprisonment imposed in the present case.