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DCCC 525/2022
[2023] HKDC 379
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 525 OF 2022
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| Before: |
Deputy District Judge Amy Chan |
| Present: |
Mr Chow Ho Fung, Martin, Public Prosecutor of Department of Justice, for HKSAR |
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Ms Liu Yuk Yee, Abigail, Counsel instructed by Henry Chiu & Partners, for the defendant |
| Offence: |
[1] Driving while disqualified (於取消駕駛資格期間駕駛) |
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[2] Using a motor vehicle without third party insurance (沒有第三者保險而使用汽車) |
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[3] Trafficking in a dangerous drug (販運危險藥物) |
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REASONS FOR SENTENCE
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1. D is convicted on his own plea of the following charges:
Charge 1- Driving while disqualified[1];
Charge 2 - Using motor vehicle without third party insurance[2]; and
Charge 3 - Trafficking in dangerous drugs[3].
Facts
2. On 27 December 2021 at around 01:15 hours, PC 11475 (“PW1”) was ambushing in a police vehicle when he saw a silver Toyota 7-seater vehicle with registration mark NN3332 (“V1”) driven by D in petrol station at No. 17 Kam Tin Road, Pat Heung, Yuen Long.
3. PW1 found D’s actions suspicious and intercepted him at around 01:24 hours. At that time, D had alighted from V1 and was filling air into its tyres. Upon request, D produced his HKID for inspection, but informed PW1 that he did not have his driver’s license with him. Upon checking with the radio, PW1 discovered that D was disqualified from driving at the material time. On 8 February 2019, D was convicted for driving while disqualified and using a motor vehicle on a road without third party insurance and was ordered to be disqualified for 3 years in total.
4. At 01:30 hours, PW1 arrested D for driving whilst disqualified and driving without third party insurance. D remained silent under caution.
5. Between 01:34 and 01:38 hours, PW1 conducted a search on D, found the following items in D’s handbag (“E1”), and seized them as exhibits:
(i) 6 re-sealable plastic bags containing suspected dangerous drugs (“E2”) wrapped in a piece of tissue paper inside a cigarette box;
(ii) 10 re-sealable plastic bags containing suspected dangerous drugs (“E3”) in a bigger re-sealable plastic bag; and
(iii) 11 re-sealable plastic bags containing suspected dangerous drugs (“E4”) in a bigger re-sealable plastic bag inside another cigarette box.
6. At around 01:45 hours, a notebook, containing names and figures was found at the sun visor above the driver’s seat of V1. An electronic scale was found in the centre console compartment of V1.
7. At around 02:04 hours, PW1 arrested D for trafficking in dangerous drugs. D remained silent under caution.
8. E2 – E4 were sent to the Government Laboratory for testing and later confirmed in a Government Chemist’s Certificate (“GCC”) to contain a total of 4.69 grammes of a solid containing 4.26 grammes of cocaine.
9. The estimated street value of E2 – E4 is around HK$7,808.85.
Criminal Record
10. D has appeared before the court on 6 previous occasions in respect of 12 offences of which 2 related to drug offences, including a conviction for trafficking in a dangerous drug, and 2 previous convictions for using a vehicle without third party, 1 previous conviction for driving while disqualified. His last conviction was for the offences of indecent assault in 2020 and was sentenced to 10 weeks’ imprisonment.
Mitigation
11. D is currently 40 years old. He received education up to the fifth grade of secondary school in Hong Kong.
12. At the time of the offence, he was employed as a salesman in vehicle trade and was responsible for maintaining and cleaning V1 belonging to his employer. The monthly income of D was about HK$30,000.
13. Prior to remand, D resided with his parents and his younger brother. They shared the responsibility of taking care of their parents and supporting the family.
14. In respect of Charges 1 and 2, they were committed out of impulsiveness and recklessness. At the time of the offence, D was maintaining the V1 at the garage and he felt hungry. Hence, wrongly for the sake of convenience, he drove V1 to buy food.
15. In respect of Charge 3, it was committed out of financial pressure. Since D was disqualified from driving from 8 February 2019 to 7 February 2022 and hence required the assistance of his colleagues when cars needed to be driven out. D had to share his commission with those colleagues. It therefore resulted in a reduction in D’s income. In the circumstances, D stupidly agreed to help transport some dangerous drugs in return for money to pay for the family expenses.
Considerations
Charge 1 & 2: Driving while disqualified and without third party
16. D has a history of disqualification and clearly is no stranger to road traffic offences.
17. By driving as D did he put other road users at risk and he also was in contempt of the original court ordered disqualification. The breach was flagrantly committed.
18. As for the road traffic offences, I adopt a starting point of 9 months’ imprisonment on each of Charges 1 and 2 after taking into account D’s previous convictions and offending for the same offences. I reduce by one third for his guilty pleas to 6 months’ imprisonment on each charge.
19. The penalty under that Road Traffic Ordinance under sub-section 44 (2)(a) is disqualification for a period of not less than 12 months in a case of a first conviction and under sub-section (2)(b) for a period of not less three years in case of a second or subsequent conviction under that section.
20. Therefore, D is disqualified from driving for 4 years for Charge 1.
21. He is also disqualified for 2 years for charge 2.
22. I order the sentences and disqualification for both charges to run concurrently, making a total sentence of 6 months’ imprisonment and disqualification for 4 years.
Charge 3: TDD
23. It was held in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 that the sentencing guidelines laid down in R v Lau Tak-ming [1990] 2 HKLR 370 for trafficking in the drug of heroine is applicable to cocaine as well.
24. The band of tariff for trafficking less than 10g of cocaine is that of 2 to 5 years’ imprisonment.
25. An arithmetical application of the said tariff sentence to the total of 4.26g of cocaine would lead to a starting point of 39 months’ imprisonment and reduced to 26 months upon his guilty plea.
Totality
26. The driving offences and the trafficking in dangerous drugs offence are separate and distinct. In principle, the sentences for the two types of offences should be served consecutively. However, bearing in mind the principle of totality, I order that 4 months of the sentence in charge 1 and 2 be served consecutively to the 26 months in charge 3.
27. D is, therefore, sentenced to a total of 30 months’ imprisonment (26 + 4).
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( Amy Chan ) |
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Deputy District Judge |
[1] contrary to s. 44(1)(b) of the Road Traffic Ordinance (Cap. 374)
[2] contrary to s. 4(1)and (2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance
(Cap. 272)
[3] contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134)
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