HKSAR v. SU YING KIT JOHNNY

 DCCC1255/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1255 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to 1 charge of "Dangerous Driving and 1 charge of "Trafficking in a dangerous drug". The dangerous drugs involved are ketamine and nimetazepam.

Summary of Facts

Charge 1

2.  At about 4:35 a.m. on 18 July 2009 , PCs 54400 and 500 (respectively PWs 1 and 2) were patrolling on vehicle along Prince Edward Road East. They saw a red private car (KX 3478) travelling between the 1^st and 2^nd lane of eastbound Prince Edward Road East; it was moving repeatedly between the 2 lanes. PWs 1 and 2 followed the private car and through the loud speaker, demanded the driver (who was later confirmed to be the defendant) to stop. The defendant continued to drive forward without stopping. PWs 1 and 2 demanded him to stop again through the loudspeaker, but he ignored.

3.  The defendant accelerated and drove towards eastbound Kwun Tong Road. PWs 1 and 2 followed and saw the defendant making a right turn into Wai Yip Street at high speed. The defendant then turned into Lai Yip Street from Wai Yip Street. Upon reaching the traffic lights at the junction between Lai Yip Street and Hung To Road, the defendant disobeyed a red light. PWs 1 and 2 continued to follow him and demanded him to stop twice through the loud speaker. He ignored.

4.  When the defendant reached the traffic lights at Ma Tau Wai Road near Tam Kung Road, there were other vehicles stopped in the 1^st, 2^nd and 3^rd lanes of Ma Tau Wai Road. The defendant cut into the 3^rd lane from the 2^nd lane and then tried to make his way through between the 2^nd and 3^rd lane. In the course of doing so, the front offside of his car rammed into the rear nearside of a van (HW 9044) which stopped in the 3^rd lane.

Charge 2

5.  The defendant stopped his car after the collision. PWs 1 and 2 immediately alighted from their vehicle to investigate the matter. The defendant alighted from his car and was searched by PW1. He found in the defendant's left front jeans pocket 16 transparent resealable plastic bags containing suspected dangerous drugs; 13 foilpacks containing a total of 120 tablets of suspected dangerous drugs; 77 tablets of suspected dangerous drugs; and a bunch of empty transparent resealable plastic bags.

6.  PW1 arrested the defendant for "drug trafficking" and "dangerous driving". Under caution, he remained silent.

7.  The Government Chemist examined the drugs seized from the defendant and confirmed that they are a total of 26.10 grammes of a powder containing 12.87 grammes of ketamine; 120 tablets containing a total of 0.97 gramme of nimetazepam; and 77 tablets containing a total of 5.28 grammes of ketamine.

8.  The defendant now admits that he had unlawfully trafficked in a total of 18.15 grammes of ketamine and 0.97 gramme of nimetazepam.

Mitigation & Sentence

9.  The defendant is now 23 years old. He has 5 previous criminal convictions, 4 of which are related to dangerous drugs. He is in breach of a suspended sentence of 3 months imprisonment (ESCC 126/2009). The sentence was made on 30 January 2009, suspended for 18 months. Regarding traffic record, the defendant has no conviction, except numerous fixed penalty violations. He received his driving license in October 2007.

10.  Defence counsel Ms. CHENG submitted that the defendant was sent to the mainland by his parents when he was about 2 months old. He returned to Hong Kong upon reaching school age. The defendant's elder sister is an obedient daughter. As a result, he became rebellious. Whatever his sister did, he did something the opposite. After completing F.5, he started working as a kitchen apprentice. He met some undesirable peers and did not contact his parents for 3 years. He also developed a drug habit. He consumed and delivered drugs.

11.  Ms. CHENG handed up a total of 4 mitigation letters, their contents are noted. She submitted that the defendant now realizes that his parents are always on his side. He is remorseful. Regarding Charge 1, the defendant did not cause any personal injury. The damage to the van is minor; its driver has indicated that no civil claim would be pursued.

12.  I will deal with Charge 2 first. The sentencing tariff for trafficking in ketamine is laid down in SJ v HII Siew Cheng [2009] 1 HKLRD 1. For 10 to 50 grammes, the sentence ranges from 4 to 6 years imprisonment. I note that the guidelines refer only to the weight of the drug, without specifying whether it is in powder or tablet form. In this case, apart from the 12.87 grammes of ketamine powder, there are also 77 tablets, carrying a total of 5.28 grammes of ketamine. In view of the guidelines, I will only consider the weight of ketamine involved. In addition to ketamine, there were 120 tablets containing a total of 0.97 gramme of nimetazepam. The Court of Appeal in HKSAR v WONG Kin-kau CACC 269/2009 seems to have approved that nimetazepam (commonly known as "No. 5" or "Wong Fei Hung") is as dangerous as ketamine or ecstasy, so that the guidelines regarding ketamine and ecstasy should apply to this drug. Therefore, for the purpose of sentencing, I treat the defendant having trafficked in a total of 19.12 grammes of ketamine. For this quantity, I adopt a starting point of 4.5 years imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 3 years. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence for Charge 2 is therefore 3 years.

13.  Regarding Charge 1, the defendant's driving manner was simply appalling. It is obvious that he drove in such a dangerous way in order to avoid being caught by the Police. He knew better than anyone as to how much drugs he was carrying and that he was at the material time subject to a suspended sentence. 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. Although the defendant drove dangerously, disobeyed Police commands and disregarded the safety of other road users, I do not consider Charge 1 falls within the category of the worst of its kind. Bearing in mind the maximum prison term for this offence is 3 years, I adopt a starting point of 18 months. One-third discount is given for the guilty plea, reducing the sentence to 12 months. Likewise, I see no other mitigating factors which warrant any further discount. The sentence for Charge 1 is therefore 12 months.

14.  As a result of this case, the defendant is in breach of a suspended sentence of 3 months imprisonment (ESCC 126/2009). In that case, the defendant was convicted of "simple possession". I will activate the suspended sentence. I order the defendant to serve the 3 months immediately.

15.  Ms. CHENG submitted that Charges 1 and 2 arising from the same incident, and therefore requested concurrent sentences. In my view, both charges are separate and distinct. Charge 1 could have been completely avoided had the defendant obeyed the Police command to stop his car. In principle, the sentences for both charges should be served consecutively. However, having considered the totality principle, I order 3 months in Charge 1 to be served concurrently with Charge 2, arriving at a total term of 3 years and 9 months imprisonment for both charges. Regarding the activated 3-month sentence in ESCC 126/2009, I order it to be served consecutive to all existing sentences. In other words, the defendant will go to prison for 4 years in total.

16.  For Charge 1, a disqualification order is inevitable. The Court of Appeal in SJ v HUNG Ling Kwok CAAR 7/2009 (Chinese judgment) commented that it serves no purpose for the court to make a disqualification order which coincides with the prison term to be served by a defendant. In such case, the defendant would be able to drive again upon release. On this basis, I make a disqualification order of 5 years and 6 months. Pursuant to section 72A of the Road Traffic Ordinance (Cap.374), I also order the defendant to attend and complete a Driving Improvement Course.