HKSAR v. TAI CHEUK KIN

HCCC 169/2023

[2023] HKCFI 2747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 169 OF 2023

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty at the committal stage to a total of four offences. They are, first, using a false instrument, charged him on 20 June 2021, in Tsim Sha Tsui, used a false instrument, namely, an acknowledgement of application for a Hong Kong permanent identity card in the name of a Mr Chan, with the intention of inducing a police officer to accept it as genuine. The 2^nd charge, dangerous driving, charged you on the same at the same spot, you drove a private car on a road dangerously. The 3^rd charge is possession of a false instrument, charged you on the 25^th day of June 2021, that is some five days later, at another location in Mong Kok, you had in your custody or under your control a false or forged acknowledgement of application for a Hong Kong permanent ID card in the name of a Mr Yeung, with the intention that someone else or you would use it to induce others to accept it as genuine. 4^th charge charged you on the same occasion on 25 June, that is you had trafficked dangerous drugs, namely, 8.22 grammes of a solid containing 7.69 grammes of cocaine and 3.97 grammes of a crystalline solid containing 3.78 grammes of methamphetamine hydrochloride.

When you pleaded to those offences at the committal stage, you also admitted a set of Summary of Facts. The facts are as follows.

At about 1.40 in the early hours on 20 June 2021, Sergeant Au Yeung was driving a police vehicle patrolling along Austin Avenue when he saw a private car on the next lane moving at the opposite direction. Since the headlight of that vehicle was turned off, Sergeant Au Yeung instructed the vehicle to stop outside No. 17 Austin Avenue. The vehicle duly stopped, you were the driver. You alighted from the vehicle and also there was a front seat passenger. Other than the two of you, there was no one else inside the vehicle.

Sergeant Au Yeung went up and asked you for your identity documents. In response, you gave him an acknowledgement of application for Hong Kong permanent ID card in the name of a Mr Chan. That acknowledgement was subsequently confirmed to be a false instrument containing only your photo but the particulars of Mr Chan. You also produced to Sergeant Au Yeung the driving license of Mr Chan. You were told to take off your mask and Sergeant Au Yeung found that your face matched with the photo on the acknowledgement.

Since your vehicle was blocking the road, Sergeant Au Yeung instructed you to get back into the vehicle and park it on the pavement while he was conducting check on the acknowledgement and the driving license. However, after you returned to your vehicle, you suddenly drove the vehicle out to Austin Avenue and travelled along the opposite direction of the lane and entered the junction with Austin Road (West Bound). According to Sergeant Au Yeung, your vehicle was travelling at about 40 kilometres per hour. He immediately boarded his vehicle to chase after you. Meanwhile the front seat passenger fled on foot.

At the same time, another driver, Mr Yeung who was driving his vehicle in the vicinity. When you were instructed to stop your vehicle outside No. 17 Austin Avenue, he was inside his vehicle. After you and the front seat passenger had alighted from your vehicle, Mr Yeung drove his vehicle and left the scene. Mr Yeung first drove from Austin Avenue into Chartham Road South. He then entered Austin Road (West Bound). When he followed the traffic light at Austin Road and entered the junction of Austin Avenue and Austin Road, your vehicle dashed out from the junction in the opposite direction and crashed into Mr Yeung’s vehicle.

The car cam of Mr Yeung’s vehicle captured that before your vehicle stopped at No. 17 Austin Avenue, your vehicle had a slight contact with another vehicle parked behind. After you and the front seat passenger alighted from vehicle, Mr Yeung’s vehicle left the scene and entered Chartham Road. Mr Yeung’s vehicle later entered the junction of Austin Avenue and Austin Road following the traffic light. Suddenly, your vehicle dashed out from the junction and crashed into vehicle B. In a nutshell, what Mr Yeung described is captured in his car cam.

Due to the collision, the front bumper of your vehicle was completely destroyed. On the other hand, the nearside bodywork of Mr Yeung’s vehicle was deformed. In addition, the nearside tyre of Mr Yeung’s vehicle became detached from the vehicle. Fortunately, Mr Yeung did not suffer any injury. He saw you getting out from your vehicle after the crash and fled towards the direction of Chatham Road South and you disappeared from the scene.

Upon reviewing the CCTV in the vicinity, police found that at about 1.10 in the early hours of the morning on 20 June 2021, you parked your vehicle outside Mira Hong Kong. You left the vehicle and entered the hotel. You took the lift and went up to the 12th floor. Upon further inquiry with the Mira, your identity was revealed. It was found that you had registered to stay in the Mira from 18 June to 20 June 2021. You checked out on 21 June 2021.

After your identity had been revealed, police found out that your reported address was a public housing unit in Tin Ming House, Tin Ping Estate. In addition, it was also found out that you had been disqualified from driving since 30 September 2020. Police visited your address for a couple of times but no one answered. However, the CCTV of Tin Ping Estate revealed that in the evening on 23 June 2021, you had driven a private vehicle and once returned home. In other words, although you were not being charged but you drove vehicle whilst disqualified on at least two occasions, once on 20 June 2021 and the other time on 23 June 2021.

Extensive search of the vehicle that you drove on 23 June 2021 was conducted. At 10.55 in the morning on 25 June 2021, police found the vehicle which you drove on 23 June was parked outside the Cordis Hotel in Mong Kok. Upon inquiry with the hotel and viewing the CCTV of the hotel, it was confirmed that you had often attended Room 2205 of the hotel since 21 June 2021, that is after you had checked out from the Mira. Further, it was revealed that you had been staying in the room since the small hours of 25 June.

Police officers therefore put the main lobby of the Cordis Hotel under observation. At about 12.50 pm on 25 June 2021, you took lift from the 12th floor down to the main lobby of the hotel. At that time, you were carrying a black handbag. You were stopped and inside the bag the police found:

(1)  A plastic bag containing two plastic bags of suspected cocaine;

(2)  two plastic bags containing suspected ‘Ice’.

It is confirmed that the suspected dangerous drugs were in fact 8.22 grammes of a solid containing 7.69 grammes of cocaine and also 3.97 grammes of a crystalline solid containing 3.78 grammes of ‘Ice’.

Other than the drugs, police also found on you in the handbag an acknowledgement of application for a Hong Kong permanent ID card bearing identity card number in the name of Mr Yeung dated 18 June 2021. That acknowledgement was subsequently confirmed to be a false instrument containing your photo.

You were arrested and police interviewed you under caution. You stated inter alia on 20 June 2021, you stated that Chan was your good friend. You borrowed the vehicle from him in Kowloon, in an evening on 19 June. Though you were disqualified from driving, Mr Chan did not know. After borrowing the vehicle, you found Mr Chan’s driving license was also inside the vehicle. You then had a joyride in Kowloon area until you met your friend known as Red Hair half an hour before the traffic accident.

Insofar as the acknowledgement is concerned, it is a false instrument. You gave the particulars of Chan and your own photo to a friend who then helped you to make the false document. You paid 1,500 for that. However, you refused to disclose the details of your friend.

You admitted the reason for carrying the false identity was that you believed you were being wanted by the police and you stated the reason for fleeing when you returned to your vehicle was because your vehicle had collided with a nearby vehicle slightly, and you also felt scared that the police would find out that the acknowledgement was a false instrument. You said after the traffic accident, you ran towards Chatham Road direction and later made your way to the New Territories by taxi.

Insofar as the matter on 25 June 2021 is concerned, you admitted the suspected dangerous drugs were cocaine and ‘Ice’. You said you bought the cocaine and ‘Ice’ at $3,000 and $1,000 respectively from a male in Tsim Sha Tsui around a week ago. You had consumed some cocaine and ‘Ice’ and was about to go for breakfast before you were arrested. You told the police that the dangerous drugs were for your own consumption.

Insofar as the false identity is concerned, you purchased that from a friend at $1,500 on 23 June 2021. You admitted other than the photo, the particulars stated on the acknowledgement did not belong to you and you had no idea who Mr Yeung was. You provided your own photo to your friend in order to make that and you say that you appeared at Cordis Hotel as your girlfriend had rented the room for a few days.

The street value of the drugs was 11,132.

Your fingerprints were also lifted and DNA also found at the driver seat of the vehicle you drove on the 20th. You also now admitted on 25 June 2021 in Cordis Hotel, you unlawfully trafficked in dangerous drugs, though you admitted for self-consumption under caution.

You were born in 1989 and you are now 34 years of age. You have received education up to Form 1 and worked casually at the time of the offence. You are single and no doubt from your previous convictions, you are a drug abuser.

I must say you have an appalling record. You first ran into trouble with the law when you were 14 years of age and committed a serious offence of robbery. Because of your youth, you were being given an opportunity. You were placed on probation for 12 months. However, you did not treasure that. You committed a further offence while you were on probation. The probation order has to be discharged and you were sent to a rehabilitation centre.

After you had been discharged from the rehabilitation centre, you started to take drugs at the age of 20. Again, you were being given an opportunity to amend and turn a new leaf because you were only being placed on probation for 18 months. Again, you did not treasure that opportunity. You committed a further offence of possession of dangerous drugs and you were, on this occasion, sent to DATC.

Unfortunately, you did not rid of your drug addiction. Worst still, at the age of 23, you started making your living or to support your drug addiction by trafficking in dangerous drugs. In 2012, for three counts of trafficking in dangerous drugs, you were sentenced to a total of 28 months.

Not long after your discharge from that term of imprisonment, in 2014 you committed another offence of trafficking in dangerous drugs. This time, you were sentenced to 52 months’ imprisonment.

Then you committed traffic offences in 2020. You used a vehicle on the road without third party risk and also on that occasion, you possessed or you forged either driving or vehicle documents. You were given a 4-months suspended sentence and disqualified from driving for 12 months. That was on 30 September 2020. As submitted earlier on, you drove a vehicle in June 2021 in breach of the suspended sentence and drove whilst you were disqualified.

You also committed a possession of dangerous drugs prior to the commission of the present offences. You were given bail for that possession of dangerous drugs case. You failed to report bail and while you were on the run, you committed the present offences. You also committed in March 2021 two offences, driving whilst disqualified and using vehicle without insurance. Again, you were given bail and while you jumped bail for that offences as well as the possession of dangerous drugs, you committed the present offences.

Ms Wong, in her written submission, has said everything that can be said on your behalf. I also received a letter from you this morning. You said because of financial needs, you committed the present offence because you do not have sufficient work. You also regret what you have done and regret that you cannot accompany your mother to hospital when needed.

I have difficulty, I must say, to accept that you committed the present offences due to financial need. You can afford to pay your so-called friend on two occasions for a forged identity document. You can also afford to stay in hotels. You also drove around in vehicles.

For the 1^st charge, in the case of Li Chang Li, HCMA 935/2004, the Court of Appeal said in paragraph 40 and 41, the Court of Appeal said 12 months for a plea of guilty is appropriate for possessing of forged identity card, irrespective whether the offender is lawful in Hong Kong or otherwise. 15 months for pleading guilty in cases where the offender concealed his true identity in order to find employment or extend his stay.

In Wu Chun Ming, HCCC 26/2016, the defendant in that case used a forged identity card to conceal his true identity as he is in breach of a supervising order. The learned judge commented that:

“I consider that a person who has a forged identity card for the purpose of concealing their true identity is of the same degree of culpability of a person who possesses an ID card for the purpose of gaining employment - if not arguably more serious.”

You possessed the forged acknowledgement on 20 June 2021 in order to conceal your identity not only because you are a wanted person but also you wanted to drive whilst disqualified as you were in possession of Mr Chan’s driving license as well as the forged acknowledgement in his name.

So the forged document not only enabled you to conceal your true identity but also enabled you to drive whilst disqualified which you have done so, as I said, at least on two occasions.

You drove on 23 June and showed that you paid no regard to the disqualification order imposed by the court. In the circumstances, even on your own plea of guilty, I sentence you to 15 months’ imprisonment for the 1^st charge.

The maximum sentence for the 2^nd charge is one of Level 4 fine and imprisonment of 3 years. The seriousness of this offence lies on you driving dangerously in order to avoid being investigated by police. On that occasion, you committed driving whilst disqualified, possession of a forged identity document, careless driving, before you were intercepted. Your dangerous manner of driving and the consequences was outlined in the Summary of Facts which you have admitted.

In Kwan Wan Ki, CACC 5/2019, the court said in paragraph 25:

“Vehicles, in the hands of irresponsible drivers, can be extremely destructive weapons which can cause serious casualties and economic loss. Drivers must always remember to drive carefully to avoid causing casualties to innocent road users. The court has to impose deterrent sentences in dangerous driving cases with appalling facts.”

The court also said on that occasion that most of the defendants who commit dangerous driving offences have good backgrounds and do not have a propensity to commit a crime. However, factors such as that are not strong mitigating factors to the degree that the court should pass a non-custodial sentence. The Court of Appeal said:

“On the contrary, if the defendant has a criminal record, especially of multiple similar convictions, it will be an aggravating factor.”

As I said, you have a very bad record. Though they are not similar to dangerous driving, some of them are related to vehicle offences. I, on this occasion, will not take those as aggravating factors. However, in the circumstances you should not expect any mercy from me. As the Court of Appeal has said in Kwan Wan Ki, in respect of sentencing for dangerous driving, the main concern of the court is the culpability of your dangerous driving and the seriousness of the consequences. I take a serious view of your bad driving because it was not a misjudgement or inattention but deliberate taking serious risk in order to flee from the scene. Luckily, only damages to vehicles was caused.

I take a starting point of 2 years for this offence. For your timely plea, I reduce it to 16 months. For this offence, I also disqualify you for 2 years in accordance with section 69A(2)  of the Road Traffic Ordinance. And the disqualification would not start to run until you finish the term of imprisonment that I am going to impose.

I also make an order under section 72A that you have to undergo at your own expense a driving improvement course before you can get your license back after the disqualification period.

For the 3^rd charge, no doubt the purpose of possessing the false acknowledgement on 25 June 2021 was to conceal your true identity as not only you were still wanted but also you just run into trouble with police some five days ago. You repeated the same offence five days after with a different identity. This is an aggravating factor for this offence. Hence, I adopt a starting point of 17 months, in other words an enhancement of 2 months, even with your plea of guilty.

As to the 4^th charge, it involved two drugs, cocaine and ‘Ice’. Both the prosecution and the defence, pursuant to direction made by my learned brother, have submitted their calculations in accordance with the three tests enunciated in Chan Yuk Leong, CACC 318/2013. Their calculations agrees roughly with my own and I will adopt them accordingly. There is no evidence to suggest your role is other than a courier. I will therefore sentence you on the lowest category of culpability as said in Yusuph, CACC 93/2019.

However, you have previous convictions relating to trafficking in dangerous drugs. This is an aggravating factor. Furthermore, you committed the dangerous drugs offence while you were on bail in relation to another dangerous drugs case. I will take an initial starting point of 6 years and I enhance it by 6 months with those aggravating factors that I have outlined. My ultimate starting point is one of 6 years and 6 months. For your plea, I reduce it to 4 years and 4 months.

In theory, all four terms of imprisonment are imposed for commission of offences which are different and on different occasions. They could be made to run consecutively to each other. However, I have to stand back and have in mind the totality principle in order to come to a just sentence.

You have paid no regard to law and continued to commit crimes in order to make your own living. I suspect, had you not been apprehended on 25 June 2021, you would have continued with your criminal activity. You committed the present offences in breach of a suspended sentence while you were on bail for two other matters and while you are a fugitive. I am of the view that you need to be deterred. I reckon a total sentence of 7 years is the right sentence for you.

To arrive at that proper sentence and using the 4^th charge, which is the most serious charge, as the base, I order that the sentence on the 1^st count to run consecutively to the 4^th, sentence on the 2^nd charge to run concurrently to the 4^th, sentence on the 3^rd to run consecutively to the 1^st and the 4^th count, total 7 years for the four offences which you have pleaded guilty before me.

For the breach of the suspended sentence, I activate half of the term, ie, 2 months, but that has to be run consecutively to the 7 years I just imposed.

Therefore the total, you are going to jail for 7 years and 2 months.