HKSAR v. WU PUI SUN

DCCC 995/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 995 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to three charges, namely trafficking in 13.67 grammes of cocaine (“Charge 1”); driving a motor vehicle with any concentration of a specified illicit drug (“Charge 2”); and driving an unlicensed vehicle (“Charge 3”).  All these offences happened on 7 August 2016 in Yuen Long district. 

2.  The facts to which the defendant admitted show that at about 0131 hours on the offence day he was seen driving a private car with registration mark UD 6705 (“the vehicle”) along Fung Cheung Road.  He finally stopped at Ping Wui Street (“the stop position”).

3.  At 0134 hours, PC 7008 (“PW1”) intercepted the vehicle and the defendant at the stop position.  There was no passenger on board.

Charge 1

4.  A body search was conducted on the defendant with no suspicious item found.  A search of the vehicle was carried out by PC 4435 (“PW3”) who found and seized from the storage box at the front offside car door of the vehicle an orange bag.  The following items were found inside the orange bag:-

(a) 24 plastic bags containing 5.49 grammes of a solid containing 4.98 grammes of cocaine;

(b) 24 plastic bags containing 5.59 grammes of a solid containing 5.09 grammes of cocaine; and

(c) 17 plastic bags containing 3.95 grammes of a solid containing 3.6 grammes of cocaine.

5.  In total, there were 65 plastic bags containing 15.03 grammes of a solid containing 13.65 grammes of cocaine.

6.  The street value for each gramme of cocaine was $1,198, thus the street value for 15.03 grammes of cocaine was $18,006.

7.  In other storage boxes of the vehicle, police also found a dangerous drug transaction record book, cash 14,100 and three mobile phones.  PW3 found and seized $8,922 from the right back trousers pocket of the defendant. 

8.  PW1 arrested the defendant at 0201 hours.  Under caution, he said that the dangerous drugs belonged to him for self-consumption.

Charge 2

9.  Given that the defendant’s response to the demands of the police at the stop position showed that he was under the influence of the dangerous drug and that there was dangerous drug found in the vehicle, PW1 had reasonable cause to suspect that the defendant had been driving the vehicle while any concentration of a specified illicit drug was present in his blood or urine.  Hence, PW1 conducted a drug influence recognition observation test against the defendant and formed an opinion that he was under the influence of a drug.

10.  The defendant was then required to undergo an impairment test conducted by an authorised police officer, Sergeant 46602, at Tuen Mun Police Station. The Sergeant confirmed that the defendant’s ability to drive properly was impaired.

11.  With the consent of the defendant and Dr YY Chan, a specimen of blood was taken from the defendant at Pok Oi Hospital.  Upon examination, the government chemist found that benzoylecgonine of 0.28 ug/mL and ecgonine methyl ester of 0.01 ug/mL were detected in the blood specimen.  Both benzoylecgonine and ecognine methyl ester are metabolite derived from cocaine which fall within the definition of “specified illicit drug” in accordance with Schedule 1A of the Road Traffic Ordinance, Cap 374.

12.  PW1 arrested the defendant for driving a motor vehicle with any concentration of a specified illicit drug.  Under caution, he remained silent.

Charge 3

13.  Record of the Transport Department revealed that the vehicle licence of the vehicle expired on 30 June 2016.

14.  PW1 arrested the defendant for driving an unlicensed vehicle.  Under caution, he admitted that he knew the vehicle was an unlicensed vehicle and he drove the vehicle.

Previous criminal conviction

15.  He has one previous criminal conviction of trafficking in a dangerous drug for which he was sentenced to a detention centre in July 2009 when he was aged 15. 

Antecedent

16.  It revealed that the defendant is now aged 22.  He has a girlfriend and they both have a son aged 4.

Mitigation

17.  The defendant is represented by Mr David Boyton.  He referred this court to a number of authorities, namely HKSAR v Abdallah [2009] 2 HKLRD 437, SJ v Chan Hon Hoi [2011] 1 HKLRD 808, HKSAR v Ip Kwok Leung DCCC 24/2012 and HKSAR v Tang Chun Leung HCCC 6/2014. 

18.  He submitted to the court that the defendant was born in China and he came to Hong Kong when he was 8 years old.  He was educated up to Form 2. Prior to the present offence, he worked as a car salesman. 

19.  In 2015 the defendant’s father passed away.  The defendant then suffered great pressure and he started taking dangerous drugs again.  He admitted that he took dangerous drugs 10 hours before the commission of the offences. 

20.  A number of mitigating letters written by the family members of the defendant and by the Hong Kong Christian Service were submitted to this court.

21.  I have carefully considered the contents of these letters.  In summary, the defendant was described to be the sole breadwinner of the family and he cared for his parents and siblings.  It was under great financial stress that he committed the present offences.

22.  Mr Boyton further said that the defendant claimed that some of the cocaine seized was for his self-consumption.  Upon instructions, he submitted to the court that the defendant consumed two packets of cocaine a day.  As shown in the facts, each plastic bag contained a small amount of cocaine and it could last for his consumption for a month.  Besides, there was dangerous drug found in his urine test conducted by the Correctional Services Department.

23.  Having said so, Mr Boyton said that the defendant was not willing to testify on this issue.  Besides, he submitted words to the effect that he understood that the authorities said that a discount of sentence was to be afforded only where the court accepted that a significant proportion of the dangerous drugs in which the defendant trafficked unlawfully was for self-consumption. 

24.  I told Mr Boyton that I was not prepared to accept his mitigation that the defendant self-consumed a significant proportion of the drugs seized.  In coming to this view, I took into account the principles laid down in HKSAR v Tam Yuen Ling [2016] 2 HKLRD 572, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.

25.  In reply, Mr Boyton said that he could not take the case further than that and he agreed with the court that it was a bare assertion on the part of the defendant.

Reasons for sentence

26.  I have carefully considered everything said and written on behalf of the defendant by Mr Boyton and all the mitigating letters.

Charge 1

27.  In respect of Charge 1, the Court of Appeal in Lau Tak Ming [1990] 2 HKLR 370 and in HKSAR v Abdallah laid down sentencing guidelines for trafficking in cocaine.  Between 10 and 15 grammes of cocaine, the sentence range is between 5 and 8 years’ imprisonment.

28.  The narcotic content of the cocaine involved in Charge 1 is 13.67 grammes.  Having considered all the circumstances of the case and the mitigation put forward, I take a starting point of 5 years’ (60 months) imprisonment. 

29.  Given that the defendant indicated his pleas of guilty at the plea day hearing and in light of the judgment of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, he is entitled to a full one-third discount of sentence.   The sentence is therefore reduced to 40 months’ imprisonment.  There is no other mitigating factor which justifies a further discount of sentence.

Charge 2

30.  In respect of Charge 2, the maximum sentence is a fine at Level 4 and to imprisonment for 3 years.  Besides, the court must order that the convicted person be disqualified for a first conviction a period of not less than 2 years. 

31.  The Court of Appeal in SJ v Chan Hon Hoi said, at page 814, that:-

“23. Vehicles, in the hands of irresponsible drivers, can be lethal weapons as demonstrated by the catastrophic consequences of serious traffic accidents.

24. Driving is a very complex skill determined by changes in physical, emotional and mental conditions all of which can be impaired by the use of drugs. Drugs also impair motor co-ordination skills and judgment, rendering a driver incapable of driving responsibly and safely. Driving under the influence of drugs is a clear danger on the roads and must be deterred in order to protect the public at large. Drivers...”

“27. Drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence.”

32.  Obviously, this is a serious offence and a deterrent sentence is called for.  The facts do not suggest that it is a bad case of its kind.  The facts show that the vehicle was intercepted by the police.  The defendant was not seen driving a motor vehicle without proper control under the influence of the specified illicit drug.  If so, he might be charged with an offence under section 39J. 

33.  However, the defendant was found to have 0.28 ug/mL of benzoylecgonine and 0.01 ug/mL of ecgonine methyl ester in his body specimen which is not a low level of intoxication.

34.  In light of all the circumstances of the case, I adopt a starting point of 12 months’ imprisonment and reduce it to 8 months’ imprisonment for his plea of guilty.  Again, there is no other mitigating factor which justifies a further discount of sentence.

35.  Mr Boyton said that there were no special reasons and I am satisfied that there were none.  As such, I order that the defendant be disqualified for driving all classes of vehicles for a period of 2 years to run concurrently and a re-test order under section 70 of the Road Traffic Ordinance so that he cannot drive after the disqualification period until he has passed a test of competence to drive.

Charge 3

36.  The maximum penalty is a fine of $5,000 and to imprisonment for 3 months.  The offence was committed almost 40 days after the vehicle licence was expired.  The defendant knew the vehicle was unlicensed.  I was told that the usual sentence for this offence was a fine. 

37.  Having been told of his financial ability and bearing in mind he has pleaded guilty to this offence, I impose a fine of $2,000 for Charge 3.

Totality

38.  Although all the offences were committed at the same time by the defendant, they were separate and distinct offences.  The nature of the offence in Charge 1 is totally different from that of Charge 2, therefore, the sentence for each offence should, in principle, run consecutively.

39.  Having considered the overall criminality of the defendant, I consider that a sentence of imprisonment after trial is 66 months’ imprisonment.  Upon plea, the sentence should be 44 months’ imprisonment.  As such, I order that 4 months of the sentence of Charge 2 is to run consecutively to the sentence of Charge 1, making a total of 44 months’ imprisonment. 

40.  To conclude, the sentence for Charge 1 is 40 months; Charge 2 is 8 months, 4 months of which is to run consecutively to that of Charge 1 and a fine of $2,000 for Charge 3.