HKSAR v. LAM HO SHING

DCCC 1164/2017

[2018] HKDC 1025

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1164 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (charge 1), one count of “using a mobile telephone when motor vehicle is in motion”, contrary to regulations 42(1)(g)(i) and 61(2) of the Road Traffic (Traffic Control) Regulations, Cap. 374G (charge 2), one count of “dangerous driving”, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374 (charge 3), one count of “driving without a valid driving licence”, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap. 374 (charge 4) and one count of “using a motor vehicle without third party insurance”, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 (charge 5).

Facts

2.  At around 10:35 am on 7 October 2017, near Roundabout No. 5 of Container Port Road South, Tsing Yi, police officers in a police vehicle spotted the defendant using a mobile telephone by holding it in his left hand when he was driving private car bearing registration mark UZ9825 (“the Car”).  Police officers thus requested the defendant to pull over.  The defendant ignored the request and drove towards Ching Cheung Road at high speed.  At that time, the weather was sunny, the road surface was dry and traffic flow was high.  While the speed limit of that section of Ching Cheung Road was 70km/h, the defendant was travelling at a speed around 130km/h, cutting through lanes to drive through. 

3.  At around 10:38 am, the Car collided with a medium goods vehicle causing damage to the right front foot step of the goods vehicle.  The Car was stopped at Ching Cheung Road with its front left wheel detached.  The chase lasted for 1 ½ minutes.

4.  The defendant then got out from the Car and was intercepted after running for around 200m.

5.  Upon search, 21 plastic bags containing a total of 2.96 grammes of cocaine, one electronic scale, cash of HK$16,461.2 and 2 mobile phones were found in the Car while cash of HK$10,150 was found on the defendant.

6.  The estimated street value of the cocaine was HK$3,740.

7.  The defendant was arrested.  Under caution, he admitted using a mobile telephone while driving the Car, that he did not have a driving licnece and that the cocaine seized was for his self-consumption.  In subsequent video-recorded interview, the defendant further admitted that the third-party insurance of the Car did not cover him as he did not have a driving licence.

8.  The registered owner of the Car was Mr Chiu.  The third-party insurance of the Car was in Mr Chiu’s name.  On 7 September 2017, Mr Chiu purchased the Car from a garage.  He then asked the garage to refurbish the Car and sell it on his behalf.  On 26 September 2017, the car was sold to the defendant.  Although the defendant was urged by the garage staff to complete the transfer of ownership, such was not completed. 

Mitigation

9.  The defendant is aged 20, single and lives with his family.  Prior to the arrest, he worked as a part-time waiter earning about HK$3,000 to HK$5,000 per month.  Since end of 2015 or early 2016, the defendant met some undesirable peers and started the habit of taking dangerous drugs.  He has one previous conviction record for possession of dangerous drug in 2016.

10.  The defendant committed the offence of trafficking in dangerous drug in order to fund his drug taking habit.  It was submitted that if not all the drug was sold on the offence date, he would consume a small percentage of the remaining drug.  The car involved was purchased by him with support from his family.  It was his plan to learn driving and get a job of driver eventually.  He knew it was wrong to drive without a licence.  Since his remand, he had reflected on his wrongdoings.  He pleaded guilty to all the charges indicating he was deeply remorseful.  Counsel for the defence submitted that for charge 1, the appropriate starting point would be 2-3 years’ imprisonment.  For the offence of dangerous driving, counsel conceded some aggravating features were present in this case, namely, driving without a licence, driving without valid insurance, driving at high speed and as a result of which an accident was caused.  Counsel also pointed out that although the driving was bad, it only lasted for 1 ½ minutes and luckily nobody was injured in the incident.  Counsel referred to the case of HKSAR v Or Ka Wai & Anor, DCCC 409/2017, [2018] HKDC 747 and submitted that the facts in that case were more serious than the present case and urged the court to consider the totality principle and impose a lenient sentence on the defendant.   

Sentence

11.  Given the defendant is under 21 years old and by virtue of section 109A(1) of the Criminal Procedure Ordinance, Cap. 221, I adjourned the case so that pre-sentencing report could be called for.  The suitability report on Detention Centre / Training Centre is now available.

12.  It was revealed from the report that the defendant was brought up in a working-class family.  His relationship with father was remote.  His mother was caring but ineffective in supervising him.  The defendant’s academic and conduct performance was far from satisfactory throughout his primaries. After proceeding to Form One, he failed to catch up with the school curriculum and his performance began to deteriorate.  He became rebellious and playful at school.  He was required to repeat Form One.  He was cautioned under the Police Superintendent’s Discretion Scheme for a theft committed in early 2011.  He was then put on Care or Protection Order for 12 months in June 2011 for a theft committed in mid-2011.  In September 2012, he was required to repeat Form One.  Then, he was promoted to Form Two in September 2013.  However, he did not complete the studies for Form Two or other courses he subsequently enrolled.  He quitted schooling in July 2015.  Since then, he started working and began to mix with some triad elements and started to abuse different types of dangerous drugs.  In December 2016, he quitted his job and became engaging himself as a drug-trafficking driver earning around HK$6,000 per day since early 2017.  After he was arrested for the present offence, he was remanded since 9 October 2017. The defendant was assessed to be of carefree attitude.  He admitted his wrongdoings and preferred to be sentenced to imprisonment. 

13.  The conclusion and recommendation of the report is as follows:

“Defendant is mentally and physically fit for detention in a Detention Centre or a Training Centre. From the information available and after a general assessment of his behaviour and attitude whilst on remand and taking into consideration his drug history, triad affiliation, prolonged participation in drug-trafficking activities and the serious nature of the present offences, I consider him more suitable for detention in a Training Centre where he will undergo a more comprehensive programme including educational and vocational training; character, value and life-skill development and a longer period of statutory supervision.”

14.  Counsel for the defence referred to Secretary for Justice v Chau Tsz Tim & Anor, CAAR 4 & 5/2014, and submitted Training Centre was not appropriate for a serious offence such as trafficking in dangerous drugs.

15.  I fully understand the rationale of that case and agree that it is generally inappropriate to impose Training Centre order in cases involving trafficking in dangerous drugs.

16.  For the amount of cocaine involved in this case, the starting point would be in the range of 2-3 years. Given the defendant’s plea, the sentence would be reduced by 1/3 to 16 months to 2 years.

17.  For Training Centre, the average detention period is around 18 months to 2 years.

18.  Given the defendant has been remanded for almost 1 year, if he was sentenced to Training Centre, he would have to be detained for another 18 months to 2 years on average. As counsel for the defence submitted, the period that the defendant would lose his freedom would be longer if he was sentenced to a Training Centre. In such special circumstances of this case, I consider Training Centre is not a soft option.

19.  Given the defendant’s young age, I consider that in the special circumstances of this case that the option of Training Centre is more beneficial to the defendant, in that he would be assisted to rehabilitate and reform in order to lead a future law-abiding life. I therefore consider it more appropriate to sentence him to a Training Centre for all the offences in the present case except charge 2, for which he will be fined HK$500.

20.  For charge 3, the defendant is disqualified from holding or obtaining a licence to drive in respect of all classes of vehicles for 12 months.  As the defendant does not hold any valid driving licence, I do not intend to make an order for him to complete a driving improvement course pursuant to section 72A of the Road Traffic Ordinance, Cap. 374.

21.  For charge 5, the defendant is also disqualified from holding or obtaining a licence to drive in respect of all classes of vehicles for 12 months pursuant to section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272. 

22.  Sentences for all charges are to run concurrently.

23.  For the sake of completeness, I would indicate the starting point for the offences had I considered it more appropriate to impose immediate imprisonment on the defendant. 

24.  As far as charge 1 is concerned, it involves 2.96 grammes of cocaine.  According to the sentencing guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate starting point would be 2 years and 9 months.  Although the defendant has the habit of taking drugs, it was submitted that he would only consume a small percentage of the drug if the drug was not all sold out on the offence date. In other words, a significant proportion was for trafficking as opposed to self-consumption.  In the circumstances, no discount would be granted for the assertion of self-consumption (see HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121). 

25.  For charge 3, the offence of dangerous driving, there is no evidence of jumping red lights but the defendant was travelling at very high speed of around 130km/h and cutting through lanes to drive through when the traffic flow was high.  As a result, the Car collided with a medium goods vehicle causing damage to that vehicle.  Further, the fact that the defendant was driving without third party insurance is an aggravating factor justifying enhancement (see R v Cooksley and Others [2004] 1 Cr App R (S) 1 and Secretary for Justice v Poon Wing Kay & Anor [2007] 1 HKC 289).  In the circumstances, I consider the appropriate starting point to be in the region of 2 years’ imprisonment.   

26.  For charges 4 and 5, I consider 3 months’ imprisonment to be the appropriate starting point for each charge.

27.  Taking into consideration the guilty plea and the totality principle, the total sentence would be approximately around 28 months’ imprisonment.