HKSAR v. OR KA WAI AND ANOTHER

DCCC 409/2017

[2018] HKDC 747

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 409 OF 2017

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Reasons for Sentence

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Charges

1.  D1 pleads guilty to the charges as follows:

(i) Dangerous driving (Charge 1), contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374;

(ii) Driving without a valid driving licence (Charge 2), contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap. 374;

(iii) Driving an unlicensed vehicle (Charge 3), contrary to section 52(1)(a) and (10)(a) of the Road Traffic Ordinance, Cap. 374;

(iv) Using a motor vehicle without third party insurance (Charge 4), contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272;

(v) Using a vehicle not in good and serviceable condition (Charge 5), contrary to regulations 5(1)(b) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A;

(vi) Using a motor vehicle with an illegal visual display unit (Charge 6), contrary to regulations 37 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A;

(vii) Using a motor vehicle with attachment which was liable to cause injury to person (Charge 7), contrary to regulations 36 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A;

(viii) Assaulting a police officer in the due execution of his duty (Charge 8), contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212.

2.  D2 pleads guilty to trafficking in a dangerous drug (Charge 9), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Facts

Charges 1 and 8

3.  On 28th January 2017 the first day of Lunar New Year, at around 11:30 p.m., while police officers including Chief Inspector LAU Tat-fai, Edwin (“the CIP”), SGT LAI Kwok-keung (“the SGT”) and SSGT LAI Yuk-fai were on patrol on their Police motorcycles, they saw a private car PX 2950 coming out from Portland Street to Argyle Street, Mong Kok, Kowloon, Hong Kong.

4.  At that time, D1 was the driver of PX 2950. D2 sat on the front passenger seat and another person CHUNG Wye-yan, Bryan was sitting at the back passenger seat. The officers asked. PX 2950 to pull over for inspection. The instructions were ignored. PX 2950 fled along Argyle Street (Westbound) and jumped the red light at the junction of Argyle Street / Ferry Street. The CIP and the SGT went on pursuit. 

5.  PX 2950 stopped at the junction of Cherry Street / Hoi Wang Road, Mong Kok, Kowloon when it was blocked by another vehicle ahead. The CIP blocked PX 2950 at the front with his police motorcycle as well. He stood at the offside of PX 2950 and asked D1 to stop PX 2950. D1 ignored and reversed PX 2950 to gain more momentum before moving forward, thereby hitting the CIP's left arm, twisting his left ankle in the process and bumping into his police motorcycle.  

6.  PX 2950 fled along Hoi Wang Road (Southbound). The SGT gave chase. PX 2950 jumped another red light at the junction of Hoi Wang Road / Hoi Ting Road, and travelled against the flow of traffic on Hoi Wang Road (Northbound).

7.  As PX 2950 went along that road, it jumped two further red lights. It went past the junction of Hoi Wang Road / Hoi Ting Road and returned to Hoi Wang Road (Southbound).

8.  At 11:33 p.m., PX 2950 stopped as it rammed into the flowerbed at the junction of Hoi Wang Road and Yan Cheung Road, Yau Ma Tei, Kowloon, Hong Kong. D1 got off the vehicle and fled along Yan Cheung Road. The SGT subdued and arrested D1. 

9.  Afterwards, the CIP was treated at Kwong Wah Hospital and was diagnosed with (i) tenderness on left shoulder, left wrist and neck and (ii) bruising and swelling on left ankle.

10.  The CIP's police motorcycle was damaged as follows: (i) Front and rear crash bars was slightly deformed and scratched; (ii) Rear side box was slightly deformed and scratched.  The costs of repair were around HK$13,560.00.

Charges 3 and 4

11.  The Police found PX 2950 having a vehicle licence expired on 20th November 2016.  This is confirmed by records of the Transport Department which also revealed that there was no valid third party insurance coverage. 

Charge 2

12.  Under caution, D1 admitted that he drove away because he did not have a driving licence. D1 was arrested. D1 had a breathing test and a preliminary drug test with nil results.

Charge 9

13.  The police found (i) a tissue paper wrapping over 15 plastic bags which contained 2.69 grammes of a solid containing 2.40 grammes of cocaine and (ii) a plastic bag containing 16 plastic bags containing 2.87 grammes of a solid containing 2.56 grammes of cocaine near the waist of D2. The estimated street value of the drugs found upon D2 was HK$6,842.96.

14.  D2 was arrested. Under caution, D2 admitted possession of the drugs found upon herself. D2 had a urine test which had nil result.

Charges 5 – 7

15.  PX 2950 was examined with the following defects: (i) Rear registration mark plate lamp inoperative (lamp not fitted); (ii) Failing to comply with visual display unit regulation (VCD display installed forward of the driver's seat); (iii) Rear additional spoiler with sharp edges fitted on rear truck-lid where it was likely to strike a person with whom it might collide into.

D2’s VRI

16.  D2 stated as follows: (i) D1 was her boyfriend and CHUNG was her friend; (ii) On 28th January 2017, D1, D2 and CHUNG were heading to play mahjong in Mong Kok; (iii) The drugs found upon her were for her own consumption and she bought them from a male called “Ah Wing” in Mong Kok one to two weeks ago; (iv) She had never consumed cocaine before.

Mitigation

17.  D1 is 23 years old, educated to junior secondary level.  He was unemployed at the time of arrest.  He had 2 theft convictions in 2009 and 2011 respectively, resulting in probation.  In 2014, he was sentenced to Training Centre for trafficking in dangerous drugs. 

18.  Mr. Li submits that D2 committed the offence for no reward, only to help out a friend.  She was 17 at the time of offence.  She is now 18 years old, educated up to junior secondary level.  She has a clear record.  She worked as a waitress at the time of arrest.  Her father has contracted a serious heart disease in recent years.  He is unable to take up employment.  Her mother has been diagnosed to have major depression since more than 10 years ago.  Her elder brother is seriously mentally retarded.  Her elder sister is the sole breadwinner of the family.  D2 worked for her own upkeep.  Citing the miserable state of D2’s family, Mr. Li seeks to mitigate for a shorter sentence on humanitarian grounds. 

19.  I order a Training Centre report and a Rehabilitation Centre report.  She is frank with a full account leading up to her part in the present offence.  The main driving force was D1, her boyfriend at that time.  He and his peers had ill-influenced her tremendously.  She had not been thoroughly weak in her academic pursuit. She now reflects that she should resume studies in an evening college.  The reporting officer considers her suitable for placement at the Rehabilitation Centre.   

Sentencing considerations

20.  The sentencing guidelines for trafficking up to 10 grams of heroin shall be 3 – 5 years according to R v Lau Tak-ming [1990] 2 HKLR 370, as extended and applied to cocaine by Attorney General v Pedro Nel Rojas [1994] HKCA 54.

Sentencing D1

21.  D1 disobeyed the police officers’ instructions to pull over for inspection, then jumped the red traffic light to escape.  When later ordered by the CIP to stop, he reversed his car to gain momentum before advancing.  His car hit the CIP’s left arm and twisted the CIP’s left ankle as well as damaged the blocking police motocycle.  The car jumped another red traffic light and went against the flow of traffic.  It jumped two other sets of red traffic light.  It hit the flowerbed at a road junction.  He alighted and fled on foot.  He had no valid driving licence.  His car was unlicensed.  There was no third party insurance cover.  In sum he was of the type of most irresponsible drivers. 

22.  I take 2 years as the starting point for Charge 1 (dangerous driving).  A one-third discount is accorded for his plea of guilty.  D1 has made available $13,560 by way of full compensation for the repair cost of the police motorcycle.  I reduce the sentence by one month.  The sentence is 15 months.  In my view, the disqualification shall also apply to learner licence.  I order disqualification for 2 years commencing from today.  It means the soonest that he can have a learner licence is at the expiry of 2 years from the date of sentence. 

23.  I take 6 months as the starting point for Charge 8 (assaulting police officer in due execution of duty).  A one-third discount is accorded for his plea of guilty. The sentence is 4 months.  This aspect of the case has been included as the basis of the sentence on Charge 1.  Such 4 months’ imprisonment shall be concurrent with Charge 1. 

24.  I take 3 weeks as the starting point for Charges 2 and 3.  A one-third discount is accorded for his plea of guilty.  The sentence is 2 weeks each. 

25.  I take 6 weeks as the starting point for Charges 5 – 7.  A one-third discount is accorded for his plea of guilty.  The sentence is 4 weeks each. 

26.  I take 3 months as the starting point for Charge 4.  A one-third discount is accorded for his plea of guilty.  The sentence is 2 months.  I order disqualification for 2 years.  This period shall be concurrent with Charge 1.   This aspect of the case has been included as the basis of the sentence on Charge 1.  Such 2 months’ imprisonment shall be concurrent with Charge 1. 

27.  I consider the totality principle.  I order all sentences to run concurrently.  The overall sentence is 15 months. 

Sentencing D2

28.  If a term of imprisonment is called for, I shall consider a starting point of 3 ½ years. There is no merit in D2’s mitigation on humanitarian grounds.  She has been aware of her family’s misfortunes before the present offence.  Humanitarian grounds for reduction of sentence can only avail to a defendant where the misfortunes are newly developed and not within the contemplation of the defendant at the time of the offence. 

29.  Be that as it may, she has been in custody since 28/1/2017, the date of arrest.  Up to today, it has been 1 year and 1 month.  She was 17 at the time of offence and is now 18.  She had a clear record before.  She has gained some insight into her problem.  She is considered suitable for detention at the Rehabilitation Centre.  I am satisfied that such placement shall be in the best interest of herself and the community.