HKSAR v. TANG KA KIT

HCCC 374/2023

[2024] HKCFI 1934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 374 OF 2023

Transcript of the audio recording of the Proceedings
in the case of HKSAR v Tang Ka-kit, charged with
Trafficking in dangerous drugs, etc, before the
Honourable Madam Justice Toh

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(Proceedings before 10.15 am not required)

COURT: The defendant had pleaded guilty in the lower court to one count of trafficking in a dangerous drug, namely 23.41 grammes of a solid containing 19.71 grammes of cocaine and 33.4 grammes of a solid containing 28.88 grammes of ketamine. He is also charged with dangerous driving on the day when he committed the 1st offence.

The facts disclose that at about 5.05 pm on 25 June 2021, police officers approached the vehicle driven by the defendant which was parked in the layby area at Locwood Court, Tin Shui Wai, Yuen Long. PW1, one of the two police officers who were patrolling in the area, approached the vehicle and stood near the driver’s door. The defendant then abruptly turned the car right, leaving the layby area, and, as can be seen from the video, narrowly missing injury to the police officer.

Despite the fact that PW1 had declared his identity, the defendant continued driving away in high speed and ran into the back of a shuttle bus down the road. Apart from crashing into the back of the bus, he also crashed into some flower pots which then caused his vehicle to stop.

Fortunately, none of the passengers on board the bus were hurt and also fortunately there were no pedestrians using that part of the road at that time.

The vehicle driven by the defendant was subsequently searched and the drugs, which is the subject matter of Count 1, were found inside the vehicle. They were distributed in three different locations. Two resealable plastic bags were found inside a storage compartment on the driver’s door, which is Exhibit 1, which contained a total of 0.26 grammes of a solid containing 0.22 grammes of cocaine. Then resealable plastic bags containing 247 resealable plastic bags were found containing drugs, ketamine, cocaine, all stored beneath the window control panel on the driver’s door. And then one resealable plastic bag was found containing 0.15 grammes of a powder containing 0.13 grammes of cocaine were found inside a storage compartment near the steering wheel.

So it is clear that this is no ordinary courier case where a courier is tasked with bringing something from point A to point B.

Furthermore, upon investigation, it was discovered that the defendant was driving without a valid licence that day. He had an expired probationary driving licence and that had expired on 8 January 2021, so therefore the insurance on the vehicle would not be valid, and that means if anyone was injured they will not be fully compensated.

Now, the only mitigating factor I can see is that he, the defendant, pleaded guilty at the earliest opportunity.

The defendant is only aged 30, but he has a poor record as he has two previous convictions. The second one is similar, which he committed in 2011, trafficking in dangerous drugs, for which he was sentenced to 12 years’ imprisonment. I am informed by Mr Wong in mitigation on his behalf that the defendant is divorced and has a young son of 2 years old. The defendant was educated up to Form 1 level in Hong Kong and prior to his arrest he was earning a living as a delivery worker and warehouse attendant.

The drugs are ketamine and cocaine, and in working out the proper starting point Mr Wong has very properly worked out the various approaches that the court would need to consider in arriving at a proper starting point. And having considered all the various approaches, I agree with Mr Wong that the combined approach would be the best, would be the fairest way to proceed. And I would also agree with Mr Wong that, using the combined approach, the notional starting point for Count 1 would be between 75 and 81 months.

However, I do not agree with Mr Wong when he says that the defendant is a mere courier.  It is clear that from the way the drugs were packaged and the places they were being put that he was more than a mere courier.

Another matter to consider is also the fact that the defendant had previous conviction, one of which was similar in 2011 when he was sentenced to 12 years’ imprisonment.  And obviously, even despite such a lengthy sentence, it has not deterred him from committing this present offence.

So in view of all these matters, I would adopt a starting point on Count 1 of 84 months’ imprisonment.  And giving the defendant the usual one-third off for his early plea, it will reduce the sentence to one of 56 months.  So the defendant is sentenced to 4 years and 8 months on the 1st count.

Now, in relation to the 2nd charge of dangerous driving, as I have indicated to Mr Wong, it is not ordinarily an offence that arises out of the offence of drug trafficking.  So when I was considering the starting point in the 1st offence, I did not take into account the offence of dangerous driving.  As Mr Wong correctly pointed out, the maximum term of imprisonment is 3 years for dangerous driving and also a mandatory disqualification for driving for no less than 6 months.  And Mr Wong pointed out that no one was injured as a result of the defendant’s driving.

And one of the cases cited by Mr Wong was Mok Lai Man, Edward, which is CACC 260/2017, where the appellant had ignored police’s repeated signals to stop and drove past a roadblock and collided with other vehicles.  The court in that case agreed a 30-month starting point was appropriate as the whole saga lasted 30 minutes with a 3-year disqualification order.

In the present case, Mr Wong submitted that the incident did not last long, it was less than a minute, and the distance covered was not long, merely about 100 metres or so, and that the defendant does not have a bad driving record, and so he suggested, submitted, that a lower starting point can be adopted.

First of all, the driving record of the defendant is not bad because he is not licensed to drive and has not had a valid driving licence and it is only pure luck that no one was injured as I had stated above.  So the defendant cannot be given the advantage in the sentence for pure fortuitous luck.

It was a time, 5 pm or thereabouts, when students would be going home after school, when people will be going home from market, etc, or going out from the office.  So at such a dangerous time, to be driving in this manner, really calls for a deterrent sentence.  As I said, it was very lucky the police officer who approached the car was not injured in the circumstances.

So I would adopt, in these circumstances, a starting point of 36 months.  And giving him one-third off, he will be sentenced to 24 months’ imprisonment.  I would also disqualify him for 3 years.

And as far as the totality principle is concerned, I have considered it and this is the final sentence: on the 1st count he goes to prison for 4 years and 8 months; and in the 2nd count he goes to prison for 2 years and that will be served consecutively to the 1st count, and so he goes to prison for a total of 6 years and 8 months.

And the 3 years’ disqualification will only run from the time when he leaves prison.

All right, anything else?  Yes, Mr Wong.

MR WONG: My Lady, before we move on to some other matters...

COURT: Yes.

MR WONG:  ...I understand there is a mandatory order for driving improvement course.

COURT: He has no driving, valid driving licence, therefore how would a driving improvement course apply?

MR WONG:  Well, that’s not what the Ordinance says.  It’s mandatory under section 72A.

COURT: Yes. How can he go to a -- if I sentence somebody who drives without a licence, there is no driving improvement because he has no licence. It doesn’t make sense that he has to go to a driving improvement course.

MR WONG:  Well, it works in relation to the disqualification period. 

COURT: Yes.

MR WONG:  In some cases, it runs within the last three months of the disqualification...

COURT: Yes.

MR WONG:  ...which I think applies here.  That’s, that’s how it works; 72A.

COURT: Let me see. What are you referring to, the?

MR WONG:  Road Traffic Ordinance, Chapter 374.

COURT: Yes. Do you have a copy of that for me?

MR WONG:  I have no spare copy, but this is my working copy.

COURT: Yes. Let me have a look. Yes.

MR WONG:  Certainly.  And actually, I’ve highlighted the relevant parts.

COURT: Thank you. Power of Court or Magistrate. “Where a court or magistrate convicts a person of an offence, the court may do either of both of the following...”, “...may do either of both of the following...”, it doesn't say...

MR WONG:  But if we go further down.  If we go further down.

COURT:

“That is impose any penalty that may be imposed and order the person to...(reads) the person to attend and complete a driving improvement course.  Unless...”

Yes, “...the court or magistrate for special reasons decides not to make such an order.”

And the special reason is that your client has no valid driving licence.

MR WONG:  Well, in which case...

COURT: Yes.

MR WONG:  ...if the court makes it clear.

COURT: You see? I thought about that and it would -- I do not think that the court should impose condition when it is laughable in the sense that if he has no valid driving licence, I order him to attend a driving improvement course, for what? He hasn't got a valid driving licence. So I don’t think I should impose such an empty penalty.

MR WONG:  Very well.  If the court makes it clear that that’s the special reason.

COURT: Yes. Thank you, Mr Wong, for drawing that to my attention. That was very properly done.

MR WONG:  Another matter is the start of the disqualification period.

COURT: Yes.

MR WONG:  I understand it should start today, the day of the order.

COURT: Why?

MR WONG:  That’s how it usually, how it is usually done. 

COURT: That may be. But...

MR WONG:  But there is a special provision relating to the starting of the disqualification upon release from custody.  But that wouldn’t apply in the present case.

COURT: Why?

MR WONG:  Because under that provision -- I’m not sure if it’s in there, but under that provision, there are certain conditions have to be fulfilled for...

COURT: And the section applies, “Start of disqualification period”:

“This section applies if the court or magistrate convicts a person of ...(reads) is not to run until  the person finishes serving the term of imprisonment.”

MR WONG:  Well, the first condition is not fulfilled.  This is his first scheduled offence...

COURT: That may be, applies if -- it doesn't say, “And A and B and C and D”. You see?

MR WONG:  It doesn't, my Lady.

COURT: So, it is the – it is not...

MR WONG:  There’s no “or” between those conditions.  And there’s a...

COURT: Yes. And there’s no “or” and there’s no “and”.

MR WONG:  There’s an “and” between the third and the fourth conditions.

COURT: That's right, between the third and the fourth, which makes sense, because the third and the fourth:

“A court or magistrate sentences a person to undergo a term of prison and...(reads) court or magistrate order that the person be disqualified for a fixed period.”

I...

MR WONG:  But the way I read it, my Lady...

COURT: Court or magistrate – no, I do not, I do not – I think this section applies, “If of a relevant scheduled offence, the conviction is the person’s second or subsequent conviction of a relevant scheduled offence, regardless of if it’s for the same or for a different relevant scheduled offence”. “A term of prison or detention is not suspended and the court or magistrate orders that”...

MR WONG:  So, it’s four conditions, my Lady.

COURT: I am not sure about that. Yes, Mr Kong?

MR KONG:  Yes, I kind of agree with the interpretation of my learned friend.

COURT: Yes.

MR KONG:  Yes.

COURT: You agree?

MR KONG:  I agree, agree with my learned friend.

COURT: Then I cannot order that the...

MR KONG:  Yes, I...

COURT: ...disqualification runs...

MR KONG:  Upon his release, I think it should start today.

COURT: ...upon his release.

MR KONG:  Yes, I think it should start today, for the reasons given by my learned friend.  Yes.  I tend to agree, agree with him.

COURT: I’m sorry. I can’t hear you...

MR KONG:  I agree with, I agree with my learned friend.  I think it should only start today, not...

COURT: But it doesn’t make sense. If it runs from today, by the time he’s released from prison...

MR KONG:  Yes.  But I think often, it happens very often.

COURT: Because it doesn’t make sense because if the; if that is the case, then why therefore is the...

MR WONG:  My Lady, if that’s the case, then this section would not be necessary, and the legislature would not have legislated for -- in those terms.

COURT: Yes.

MR WONG:  Because the Common Law, as I understand it, the Common Law is that the disqualification period starts on the day of sentence.

COURT: Yes.

MR WONG:  And to cure the injustice, so to speak, the legislature legislated section 60; is it section 69 or 69A.

COURT: M’m.

MR WONG:  That’s how it came about.

COURT: Yes.

MR WONG:  And the legislation provides...

COURT: This section applies -- all right. All right. In that case, then I will not order that it runs from after his release from custody then. He is only disqualified for three years.

MR WONG:  Very well, my Lady.

(Proceedings after 10.52 am not required)

Court adjourns – 10.54 am

25 June 2024