HKSAR v. IP KWOK LEUNG

DCCC24/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 24 OF 2012

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Reasons for Sentence

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1.  The defendant pleads guilty to three charges, namely 1st charge, possession of a dangerous drug; 2nd charge, dangerous driving; and 3rd charge, driving a motor vehicle under influence of drugs.

2.  The facts admitted by the defendant can be summarised as follows.  The defendant was employed by Sun Bus Limited as a coach driver.  He worked over-night shift from 10.15 pm to 9 am the next day.

3.  At 9.15 pm on 15 September 2011, the defendant reported duty and he picked up a coach with registration no. LZ8843 (V1) at Shatin.  He was instructed to drive V1 to Tseung Kwan O to pick up passengers. V1 has a seating capacity of 56, although at all material times there were no passengers on board of V1.       

2nd charge

4.  At all material times, northbound and southbound of Hing Fat Street is divided by a junction and the traffic at southbound and northbound run against each other.  At about 10.10 pm on 15 September 2011, the defendant was driving V1 along Hing Fat Street (southbound).  Upon reaching the traffic light control junction at Tsing Fung Street and Hing Fat Street, the defendant ignored the traffic sign directing him to make a right turn onto Tsing Fung Street.  Instead he drove V1 straight onto Hing Fat Street (northbound), travelling against the flow of traffic at a speed of 30 km per hour.

5.  V1 first collided with the traffic light at the junction of Hing Fat Street and Tsing Fung Street.  It then hit the front of a private vehicle with registration no. NF7730 (V2) driven by Madam Lee Yuk-wah, Fienna (PW2) with no passenger on board.  On collision, V2 was pushed back and it mounted on the pedestrian pavement. 

6.  The defendant continued to drive V1 in an erratic manner against the traffic flow on Hing Fat Street (northbound).  V1 then collided the nearside middle of another vehicle with registration no. LZ7463 (V4) parked at the passing place on Hing Fat Street (northbound) with no one on board.  V1 pushed V4 and causing V4 to hit the rear nearside of another travelling private vehicle with registration no. HL9991 (V3) driven by Ng Kang-nam (PW3).

7.  A pedestrian Ho Kwan-ho (PW5), witnessed the entire accident.  When V1 came to a halt, PW5 saw the defendant alight from V1 looking dazed, dull and wearing no upper clothing.

1st charge and 3rd charge

8.  PC11144 (PW6) was summoned to the scene, he found a plastic bag containing the ketamine particularised in Charge 1 near the rear emergency exit of V1.  He found the defendant looking dull with red eyes.  When asked about the cause of the accident, the defendant failed to answer.  He admitted under caution that the bag of ketamine was bought by him at $300 for self-consumption.  After he consumed ketamine at Kowloon City at around 9.30 pm, he drove V1 but he had no idea where he was going.  A blood sample taken from the defendant was found to contain ketamine detected at a level of 0.34 ug/mL. 

9.  PW2 (driver of V2) sustained tenderness on her right chest wall.  The estimated costs of repairing the damage to V1, V2, V3 and V4 were $47,255, $40,272.60, $26,790 and $76,197.60 respectively.

10.  The bollard, traffic sign and traffic light at the junction of Hing Fat Street and Tsing Fung Street were completely damaged.  The estimated cost of repairing the damage was $16,525.60.            

11.  The packet found on V1 was found to contain 3.68 grammes of a powder containing 0.76 grammes of ketamine.

Background and mitigation

12.  The defendant is aged 30, single.  His family background is unremarkable.  He has two previous criminal convictions, one for possession of dangerous drug in 2008 and the other one for trafficking in dangerous drug in 2009.  He also has two previous traffic convictions for careless driving in 2004 and 2005 respectively. 

13.  Mr Kan, counsel for defendant, tells me that the defendant had been a lorry driver for 8 years before he started to work as a coach driver a few months before the offences were committed. 

14.  The defendant has been on ketamine and “Ice” for seven to eight years.  He takes drug three times a day spending about $300 on the consumption of dangerous drugs every day.  Mr Kan tells me that the defendant is now remorseful.  He accepts that the enhancement of maximum penalty under section 37(2D) and (2E) is applicable in this case.  He submits that the overall sentence in this case after the reduction for plea of guilty should not be more than 3 years.     

Reason for sentence

15.  Drug driving has been regarded as a very serious offence by the courts.  The reasons are simple.  Vehicles used by irresponsible people can be lethal weapons.  Driving requires skill and responsible manner.  Driving under the influence of drug, be it illegal or prescribed drug, is dangerous as the physical and mental condition of the driver can be seriously impaired and catastrophic accidents may be caused as a result.  As the drug driving problem was becoming prevalent in Hong Kong, there has been a growing concern of society that more severe sentence should be passed to deter this kind of offence.      

16.  As a result, new law was passed in December 2010 by adding subsection 2D and 2E to the original section 37 of the Road Traffic Ordinance, Cap.374.  The amendment increases the maximum penalty for this offence. The maximum penalty is increased by 50 per cent, when an offender commits the offence in circumstances of aggravation which include, if at the time of committing the offence, any amount of a specified drug is present in the offender’s blood or urine.  Ketamine is one of the specified drugs. Section 37(2D) is therefore applicable in this case. 

17.  The present case is almost the worse of the kind.  The defendant was a professional coach driver.  He reported duty at 9.15 pm on 15 September 2011 with the instruction to drive a very big coach to pick up passengers.  But he consumed ketamine, a prohibited dangerous drug, at about 9.30 pm apparently before he started driving.

18.  Although there was no evidence as to how many passengers he was going to pick up, given the maximum capacity of the coach, the number of passengers to be picked up should not be a small number.  It was a totally irresponsible and dangerous behaviour putting the passengers to be picked up and other innocent people’s lives and property at risk.

19.  Having been on drugs for seven years, he must be aware of the effect of ketamine and the risk of driving after consuming the drugs.  Although there is no expert evidence to prove the effect of the ketamine in this case, the crazy driving manner of the defendant clearly shows that he was under a very high intoxication. 

20.  Four vehicles were seriously damaged and one driver sustained minor injury.  The total estimated costs of repairs for the four vehicles involved and the government property was about $160,000. 

21.  The defendant driving was in an erratic manner. It was only sheer luck that no serious causality was resulted.  No doubt a deterrent sentence is called for.  The maximum sentence for Charge 2 is 4½ years after the enhancement under section 37(2D). I adopt 4 years as a starting point.  For Charge 3, the maximum imprisonment remains 3 years.  I adopt 2 years and 9 months as a starting point.  For Charge 1, I adopt 6 months as a starting point.  The only mitigating factor is the defendant’s plea of guilty for which he will get one-third reduction. 

22.  He is therefore sentenced as follows:

1st charge: 4 months’ imprisonment;

2nd charge: 32 months (i.e. 2 years and 8 months’ imprisonment);

3rd charge: 22 months’ imprisonment.

The sentences in Charge 2 and Charge 3, being part and parcel, should run concurrently.

23.  Charge 1 is a separate offence and the sentence should run consecutively in principle.  To reflect an appropriate overall culpability of all the offences, I order 2 months of the sentence in Charge 1 to run consecutively to other sentences, the rest to run concurrently.

24.  The total term of imprisonment for the three offences is therefore 2 years and 10 months.  For 2nd and 3rd charges, I also order disqualification of the defendant from driving any vehicles for 5 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.

25.  Because of the re-test requirement, I shall make no order for driving improvement course under section 72A(1A) of the Road Traffic Ordinance, Cap.374.