HKSAR v. LAM CHUN YIN

HCCC 115/2023
[2023] HKCFI 3275
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 115 OF 2023
________________________
HKSAR
v
LAM CHUN YIN Defendant
________________________
Before:
Deputy High Court Judge D Yau
Date of Hearing:
12 December 2023
Date of Sentence:
12 December 2023
Date of Reasons for Sentence:
12 December 2023
________________________
REASONS FOR SENTENCE
________________________
1.
The defendant pleaded guilty to the following counts before Magistrate Mr Lam Tsz Kan on 2 May 2023 and was committed to the Court of First Instance for sentence:
(1)
Count 1
Dangerous Driving, contrary to s.37(1)  of the Road Traffic Ordinance, Cap 374 (“RTO”).
(2)
Count 2
Trafficking in a dangerous drug, contrary to s.4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.
(3)
Count 3
Driving a motor vehicle with any concentration of specified illicit drug, contrary to s.39K of the RTO.
2.
The defendant confirmed his guilty pleas and his admission to the summary of facts before me and was duly convicted.
SUMMARY OF FACTS
COUNT 1
3.
The defendant was spotted acting suspiciously inside a parked vehicle in Kwai Shing Circuit at shortly before 0203 hours on 14 April 2021 by Police officers who were on patrol in the area in a police vehicle.
4.
Upon being asked by one of the officers to get out of the vehicle for enquiry, the defendant suddenly sped off, almost hitting the officer.  The officers immediately returned to their Police vehicle and gave chase.
5.
The defendant drove along Kwai Shing Circuit, Hing Shing Road and Kwai Fuk Road, going through 2 red lights in the process.  The defendant drove against the flow of traffic at one point, and suddenly veered to the left, crossed the double white line and crashed into the Police vehicle giving chase.  Both vehicles stopped after the collision.
COUNT 2
6.
The officers got out of their vehicle and ordered the defendant to get out of his.  The defendant refused.
7.
One of the officers saw that the defendant showed intention of driving away again, so he smashed open the driver side window with his baton and reached in to control the defendant.  The defendant put up a fierce struggle.  A different officer discharged OC foam at the defendant’s face twice.  The defendant shifted to the front passenger seat.
8.
The officer who broke the driver side window went over and broke the passenger side window.  The officers managed to open the passenger door and dragged the defendant out and subdued him on the ground.  One of the officers suffered injuries and was cut by the glass debris from the smashed windows.
9.
The officers found from inside the defendant’s mouth 8 plastic bags, which contained a total of 11.1g of a solid containing 9.33g of ketamine.
10.
From inside the defendant’s vehicle were found cash of HK$7,550, and 9 more plastic bags containing a total of 6.67g of a solid containing 1.22g of methamphetamine (commonly known as “Ice”)  and 4.46g of ketamine.
11.
The defendant was arrested at 0205 hours.
COUNT 3
12.
A Rapid Oral Fluid test was conducted and the defendant’s oral fluid tested positive for ketamine and cocaine.
13.
The defendant was, therefore, arrested for ‘drug driving’.
14.
The defendant was taken to Princess Margaret Hospital at his request for an alleged stomach ache. Blood specimens were taken with the consent of the defendant.  Subsequent examination of the specimens by government chemists confirmed the presence of 0.05µg/mL
[1]
of cocaine and 1.37 µg/mL of metabolite derived from cocaine.
CAUTIONED VIDEO RECORDED INTERVIEW
15.
The defendant claimed in the subsequent cautioned video recorded interview that he fled because he had dangerous drugs in his possession, which he tried to swallow but failed.  He bought the drugs from a male whom he only knew as ‘Shing’ at Sun Kui Park near Kwai Chung Estate.  He paid $3,200 for 18 to 19 packets of ketamine, 2 packets of which were immediately consumed by him in a nearby public toilet.  He kept the rest in his trousers pockets.
16.
The vehicle he was driving was borrowed from a male only known to him as “Ah Ming” in a game centre in Mongkok.  He was supposed to return it the following day.
17.
The cost of repair for the Police vehicle that the defendant crashed into was $62,580.
18.
Through his admission to the summary of facts read out to him before the Magistrate, the defendant had admitted that he had driven dangerously along Kwai Shing Circuit and its vicinity on 14 April 2021; that he unlawfully trafficked in the drugs found on his person and in the vehicle that he was driving; and that he was driving the vehicle while a concentration of a specified illicit drug, namely cocaine, was present in his blood.
PREVIOUS CONVICTIONS
19.
The defendant has 5 previous convictions from 2 court appearances.  He was first convicted of 2 charges of wounding with intent to do grievous bodily harm, and 2 charges of common assault on 6 November 2013 when he was 16 years old and sentenced to 18 months’ probation.
20.
He was next convicted on 31 October 2017 for trafficking in dangerous drugs and was sentenced to 52 months’ imprisonment.  He was discharged from prison on 1 June 2019.
BACKGROUND AND MITIGATION
21.
The defendant is 26 years old.  He is single and lives with his father and elder brother in a public housing unit.  His parents divorced in 2003 and the defendant had had no contact with his mother since.
22.
The defendant’s 60 year old father and 31 year old brother are both restaurant kitchen workers. The defendant himself quit school after finishing Form 3 and started working as kitchen worker and storeroom keeper.
23.
After he had been discharged on 1 June 2019, the defendant found work as a bartender earning around $20,000 per month.  The bar had to close down because of the pandemic and the defendant lost his job.
24.
The defendant was jobless for about 6 months and had been working as a casual lorry attendant.  Unfortunately, due to an injury to his spine, he was not able to take up manual work.
25.
When the defendant was gainfully employed, he contributed $7,000 to the family.
26.
Ms Cindy Lee for the defendant told the court that the defendant felt depressed that he was not able to support the family financially.  He found the burden too hard to bear and had resorted to consuming dangerous drugs as an escape, and in the process had gotten back together with his undesirable peers.
27.
This led the defendant to borrow from financial institutions to pay for his drugs.  As at the time of his arrest, he was in debt for around $200,000.  Debt collectors began showing up at his home to harass and threaten him and his family.  The defendant had no choice but succumb to the request of one of the loan sharks to deliver dangerous drugs from Kwai Shing to Mongkok as partial settlement of his debt in the amount of $5,000.
28.
The defendant borrowed the car from his friend because he was afraid of being stopped and searched by Police if he used public transport.  He committed the count 1 and 3 offences “simply because he was in enormous fear” when the Police told him to stop his vehicle.
29.
The defendant had been thinking about his future and is extremely remorseful.  He feels apologetic for what he had done to the Police, but insisted that he had acted out of panic and confusion, hoping to escape.
30.
The defendant’s father had repaid some of his loans.  The defendant wishes to serve his sentence and rejoin the work force to try to repay his father.
31.
During the present remand, the defendant had looked into the possibility of taking up courses such as English and safety courses to better himself, but was told that they could only be arranged after a sentence had been passed.
SENTENCE
COUNT 1: DANGEROUS DRIVING
32.
By operation of s.37(2D)  of the RTO, the maximum sentence for count 1 on conviction upon indictment is increased by 50% from the original maximum of 3 years’ imprisonment and fine of level 4, to that of 4 years 6 months and a corresponding increase in the fine level amount.
33.
In the case of
Secretary for Justice
v
Ko Wai Kit, Paul
CAAR 12/2001, the Court of Appeal dealt with what they described as a shocking case of dangerous driving that can be called the worst of its type:
“At about 5:30 p.m. on 6 April 2001, a patrolling motorcycle police officer, saw the respondent driving a van in Kowloon and doing so erratically. The respondent's van suddenly made an unlawful 'U-turn', crossing double solid white lines in Jordan Valley Road, Ngau Tau Kok, Kowloon. When the officer attempted to intercept the van, the respondent disobeyed the command to stop, and drove off. In the course of a crazed journey from Jordan Valley Road to Prince Edward Road East, Prince Edward Road West, Waterloo Road, Chatham Road, Austin Road and Canton Road, he committed one traffic offence after another, jumped red lights, collided with motor vehicles, and with motorcycles, injuring a police officer and two civilians, failed to obey police commands to stop, and when ultimately he was stopped, violently resisted arrest, injuring a number of police officers. That is the picture in its very broadest summary.”
34.
The 22 years old respondent’s dangerous driving included driving against traffic on a one way road, failing to stop at red traffic signals, striking a petrol tanker, striking into cars while passing through a gap between them, hitting a Police Emergency Unit vehicle injuring its driver, driving through a Police roadblock causing a Police officer to fear being run down to the extent that he drew his revolver and fired at the respondent’s van, driving against flow of oncoming traffic, colliding with a taxi and three private vehicles injuring one driver and two passengers, and reversing into and damaging a lorry and three Police motorcycles.
35.
Upon the van stopping, nine Police officers went up to arrest the respondent but he resisted violently, injuring five of them in the struggle.  He was eventually subdued and taken to hospital, where he was found to have amphetamine drug overdose.
36.
The respondent was charged with dangerous driving and resisting Police officers in the due execution of their duties.
37.
The learned trial judge adopted a starting point of 2 years for the dangerous driving, and one week’s imprisonment for the resisting charge.  The total sentence was 12 months and one week’s imprisonment.
38.
The Court of Appeal found that the starting point for the dangerous driving ought to have been the maximum sentence of 3 years’ imprisonment given the facts of the case. At the time of the appeal, s.37(2D)  had not yet been enacted.
39.
They found the judge erred in giving a discount in sentence for the fact that the respondent was under the influence of drugs when he drove since it was not a mitigating factor, but an aggravating factor instead.
40.
The Court also found that the age of the respondent not a mitigating factor.  The only matter in mitigation was the respondent’s guilty plea, and the appropriate sentence for the dangerous driving charge was a sentence of 2 years’ imprisonment after plea.
41.
The Court also found the sentence imposed on the resisting charge manifestly inadequate.  The resistance offered was violent and resulted in injury to several of the officers.  The correct starting point was 18 months’ imprisonment.
42.
The Court found that the resisting offence was a separate matter to the dangerous driving and not part and parcel of it, observing that it is one thing to drive dangerously, quite another to behave violently when approached by Police officers after the driving episode is over.
43.
Having considered the totality principle, the Court found that the appropriate total sentence after plea should be 3 years’ imprisonment, and the two sentences were ordered to be served wholly consecutively.  The period of disqualification was also raised to five years.
44.
In the case of
HKSAR
v
Yip Sing Yeung
[2022] HKCA 175; CACC 216/2021, the applicant, who at the time had no valid driving licence and was under the influence of Ice, drove a rented private car past a police roadblock dangerously and at high speed despite being signalled to stop, and subsequently crashed into a crash barrier after driving for about 600 meters, severely damaging the vehicle.  He was charged with, and pleaded guilty to, (1)  dangerous driving; (2)  driving a motor vehicle without proper control under the influence of a specified illicit drug; (3)  driving without a valid driving licence; and (4)  using a motor vehicle without third party insurance.
45.
After noting section 37(2D)  had raised the maximum sentence for dangerous driving by 50%, the learned trial judge adopted a starting point of 30 months’ imprisonment for charge 1, and 27 months for charge 2.  The applicant was fined for charge 3 and sentenced to 8 months’ imprisonment on charge 4.  The sentences were ordered to run wholly concurrently, resulting in a total sentence of 20 months’ imprisonment.
46.
In refusing leave to appeal against sentence, Macrae VP found ‘absolutely no merit’ in the application, referring to the defendant’s appalling record and the manifest dangers inherent in his driving when lawfully required by a Police officer to stop for inspection, both to the Police and other road users.  He found that it was ‘a sheer matter of luck’ that no one was injured or worse, and that the applicant could not have complained if he had received an even longer overall sentence.
47.
By way of a general comparison of culpability, I would say that the driving manner of the defendant in the present case is less serious than the respondent in
Ko Wai K
it and about on a par with the applicant in
Yip Sing Yeung
.
48.
I find that the sentence imposed in this kind of dangerous driving cases involving the driver going on a rampage when being intercepted by Police officers must carry a very strong element of deterrence.
49.
The defendant is being charged separately for driving his vehicle with drugs present in his blood in count 3.  I have not incorporated this aggravating factor when considering the appropriate starting point for count 1 to avoid double punishment.  The fact that the defendant drove dangerously and had drugs in his blood will be dealt with by the application of the totality principle.
50.
I will adopt a starting point of 30 months’ imprisonment for the defendant’s dangerous driving.  The only mitigating factor is his timely plea.  The sentence is discounted to 20 months’ imprisonment.
COUNT 2: TRAFFICKING IN DANGEROUS DRUGS
51.
The maximum sentence for trafficking in dangerous drugs on conviction upon indictment is that of life imprisonment.
52.
The defendant trafficked in 1.22g of Ice and 13.79g of ketamine.
GUIDELINE BANDS
53.
For 1.22g of Ice, the relevant guideline band under
HKSAR
v
Tam Yi Chun
[2014] 3 HKLRD 691 is between  3 and 7 years’ imprisonment, whereas that for 13.79g of ketamine under
Secretary for Justice
v
Hii Siew Cheng
[2009] 1 HKLRD 1 is between 4 and 6 years’ imprisonment.
ROLE AND CULPABILITY
54.
The defendant was found to be in possession of the dangerous drugs in a vehicle stopped on the street.  Although he did have $7,550 on his person, it is not the only reasonable inference that he must have been dealing in the dangerous drugs to others as the actual or direct trafficker.  It is possible that he was delivering, distributing or conveying the drugs in question for a dealer.
55.
As such, I find that the defendant should be sentenced on the basis of him being a courier with the attached culpability.
STARTING POINT IN BAND
56.
An arithmetical application of the guidelines would lead to starting points of 3 years 6 months for the Ice, and 4 years 2 months for the ketamine.
57.
Since there are two different types of dangerous drugs, with Ice being the more potent one, I will adopt the combined approach and have conducted the following tests.
ABSURDITY TEST
58.
If all the drugs were Ice, the starting point would be 7 years and 4 months.  A sentence above this will be absurd.
CONVERSION TEST
59.
2.9g of Ice would have a starting point of 4 years and 2 months, which is the starting point for 13.79g of ketamine.  Add this converted quantity to the actual 1.22g of Ice would result in 4.12g and a converted starting point of 4 years 8 months’ imprisonment.
60.
7.6g of ketamine would have a starting point of 3 years 6 months, which is the starting point for 1.22g of Ice.  Add this converted quantity to the actual 13.79g of ketamine would result in 21.39g and a converted starting point of 4 years 7 months’ imprisonment.
RATIO TEST
61.
Based on the proportion of the two different drugs, the sentence would be 4 years 6 months’ imprisonment.
62.
Taking into consideration the test results and the circumstances of the commission of the offence, I will adjust the starting point of 3 years 6 months for the 1.22g of Ice up by 13 months to take into consideration the 13.79g of ketamine, leading to a combined starting point of 4 years 7 months.
63.
The next step is to consider factors that would have a bearing on the eventual notional sentence after trial.
AGGRAVATING FACTORS
64.
I find the following aggravating factors present in this case.
65.
The defendant was last convicted of trafficking in dangerous drugs in 2017 and was discharged on 1 June 2019, just short of 2 years before his commission of the present offence.  For this being his second conviction for trafficking in dangerous drugs, I will enhance the sentence by 2 months.
66.
It is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor.  For this, I will enhance his sentence by 3 months.
67.
The enhanced sentence is, therefore, 5 years.
MITIGATING FACTORS
68.
The fact that the defendant had chosen to traffic in dangerous drugs in order to settle his debt incurred by his drug abuse cannot be a mitigating factor.  The only mitigating factor is the defendant’s timely plea, for which he is granted the full one-third discount.
69.
The defendant is sentence to
40 months’ imprisonment after plea for count 2
.
COUNT 3
70.
The maximum sentence for count 3 on conviction upon indictment is a fine at level 4 and imprisonment of 3 years.
71.
In the case of
Yip Sing Yeung
referred to above, the applicant was charged under s.39J, which carried the same maximum sentence but a higher minimum period of disqualification than an offence under s.39K.  Macrae VP found the 27 months’ starting point for the driving without proper control under the influence of illicit drug charge appropriate.
72.
As mentioned before, the facts in
Yip Sing Yeung
are comparable to the present case.  Both offenders were intercepted by Police officers, both refused to comply and drove off, driving past the Police officer.  There the applicant had 0.23µg/ml of methamphetamine in his blood, whereas the defendant in our case had 0.05 µg/ml of cocaine and 1.37 µg/ml of metabolite derived from cocaine in his blood.
73.
The manner of the defendant’s driving was slightly worse than the driver in
Yip Sing Yeung
, since the defendant had drove against traffic, through red lights and crashed into a Police vehicle, causing considerable damage.  The concentration of drug was also higher in the defendant’s case.
74.
I find that a proper starting point for count 3 is that of 30 months’ imprisonment.  The only mitigating factor is the defendant’s timely guilty plea, and he is sentenced to 20 months’ imprisonment on this count.
TOTALITY
75.
The fact that the defendant was trafficking in dangerous drugs was likely to be the reason why he decided to flee and in the process drove dangerously.  Although the commission of the offences are connected, I find that the trafficking and the driving are separate matters, each contributing its own degree of culpability to the defendant’s situation.
76.
The defendant did not have to flee and did not have to drive dangerously despite being in possession of drugs for trafficking.  Yet he chose to do so.  The final sentence must reflect his culpability properly, as well as to achieve a strong deterrent effect.
77.
Taking a step back, I order that 30 months of the sentence for count 2 to run consecutively to the sentence of count 1, and 3 months of the sentence in count 3 to be served consecutively to the above sentence, the balance concurrently, resulting in the final sentence of 53 months’ imprisonment after plea for the 3 counts.
DISQUALIFICATIONS
COUNT 1
78.
Pursuant to s.37(2)  and s.37(2A)(a)  and s.37(2D), there being no special reasons not to do so, and given the circumstances of his commission of the offence, I order the defendant to be disqualified for a period of 5 years.
COUNT 3
79.
Pursuant to s.39K(2), there being no special reasons not to do so, and given the circumstances of his commission of the offence, I order the defendant to be disqualified for a period of 5 years.
80.
The disqualification periods for count 1 and count 3 to take effect concurrently, effective today.
DRIVING IMPROVEMENT COURSES
81.
Pursuant to s.72A(1A), (3)  and (3B)(b), there being no special reasons not to do so, the defendant is ordered to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.
(Douglas TH Yau)
Deputy High Court Judge
Ms Paggie LEE, Senior Public Prosecutor of the Department of Justice, for the           Prosecution/HKSAR
Ms Cindy LEE instructed by Messrs. Tai, Tang & Chong, assigned by D.L.A., for the Defendant
[1]
Micro-gram per milli-Liter.