HKSAR v. CHUNG HO YIN

DCCC 558/2019

[2020] HKDC 446

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 558 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea and agreement to the Summary of Facts to a charge of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374 (the 1^st charge); two charges of driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374 (2^nd charge and 5^th charge); two charges 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 (3^rd charge and 6^th charge); two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (7^th charge and 8^th charge).

2.  The prosecution offered no evidence against the defendant regarding the 4^th charge, the same shall remain on the court file.

Facts

3.  At around 1555 hours on 7 January 2019, vehicle bearing registration number SC926 (“SC926”) was seen parked on one side of Tin Ho Road near the junction of Tin Mei Street. 

4.  Tin Ho Road in Tin Shui Wai is a two-way and two-lane carriageway with a double white line separating the two lanes.  SC926 then made a U-turn on Tin Ho Road, crossing the double white line and negotiated a right turn to Tin Mei Street.  SC926 then stopped outside Tin Shui Wai Police Station where a female boarded the vehicle. 

5.  Tin Mei Street is a two-way carriageway, comprised of three lanes, with a double white line separating the two-way lane.

6.  PW1, a police officer on patrol in a police car, informed the driver of the traffic violation.  The driver of SC926 held his right hand out of the window to signal that he received the information.  As PW1 alighted from the police car, SC926 made a U-turn on Tin Mei Street, crossing the double white line and stopped in front of the police car.  PW1 saw the defendant in the driver’s seat.  SC926 then fled towards Tin Ho Road and turned left into Tin Yiu Road.

7.  Tin Yiu Road is a two-way carriageway comprised of six lanes with three lanes towards Tin Wu Road.  The first left lane, towards Tin Wu Road, only allows vehicles turning left, while the second and third lanes only allow vehicles turning right.  There is a double white line between the first left lane and the second left lane. 

8.  After entering Tin Yiu Road, SC926 drove on the second left lane towards the direction of Tin Wu Road.  As it reached the traffic light at the junction of Tin Yiu Road and Tin Wu Road, the traffic light was red and it stopped behind a public bus.  Suddenly, it crossed the double white line and moved from the second left lane to the first left lane. Then it overtook the public bus and turned right into Tin Wu Road. 

9.  PW1 kept requesting the defendant to stop the vehicle, while chasing SC926 from Tin Mei Street to Tin Wu Road.  However, the defendant ignored him. 

10.  Tin Wu Road is a two-way carriageway comprising of six lanes of which four lanes head towards Tin Shing Road.

11.  At about 1601 hours, the traffic light at the junction of Tin Wu Road and Tin Shing Road was red.  The vehicles bearing registration numbers VH2176 and LG4241 stood on the third lane and the fourth lane of Tin Wu Road respectively.  SC926 stopped behind VH2176 on the third lane and the police car followed from behind.

12.  PW1 alighted from the police car with intent to intercept the defendant.  Suddenly, SC926 reversed until its back hit the front of the police car.  Then it moved forward and attempted to drive between VH2176 and LG4241.

13.  PW1 immediately demanded the defendant to stop and forewarned the use of a baton.  However, the defendant ignored and continued to drive between VH2176 and LG4241.  With intent to stop the defendant, PW1 hit the windscreen of SC926 with his baton twice.  However, the defendant continued to drive between VH2176 and LG4241.  PW1 thus hit the windscreen for the third time and hit the window of the front passenger’s seat.

14.  Suddenly, SC926 reversed, made a U-turn and drove on Tin Wu Road in the opposite direction of the traffic flow.  Then it turned right into Tin Shui Road and fled from the scene (Charge 1).

15.  As a result of the defendant attempting to drive SC926 between VH2176 and LG4241 on Tin Wu Road:-

(a) The driver and passenger of VH2176 suffered injuries on the neck;

(b) The rear bumper and the offside near the back passenger’s seat of VH2176 were damaged; and

(c) The nearside front of LG4241 was damaged.

16.  At around 1915 hours, SC926 was found at the junction of Tin Shui Road and the private road to Chestwood Court, Kingswood Villas, having crashed into the road fence near a lamppost.

17.  On 29 January 2019, the defendant was identified by PW1 as the driver of SC926 at the material times.

18.  The defendant was suspended from driving for the period between 23 September 2016 and 22 September 2019 and thus not covered by any insurance policy or security in respect of third party risks as required under the Motor Vehicles Insurance (Third Party Risks) Ordinance (Charges 2 to 3).

Charges 5 to 8

19.  On 22 January 2019, the registered owner of SY1367 lent SY1367 to the defendant.  As he had seen the defendant driving in the past and he believed the defendant had a valid driving licence.

20.  At around 1640 hours on 28 January 2019, police saw SY1367 exiting the car park at Kwai Shing West Estate near Kwai Shing West Shopping Centre and moved on the road near the bus terminus and it pulled over at the side of the road (Charges 5 to 6).

21.  The defendant alighted from the driver’s seat of SY1367, while a male alighted from the front passenger’s seat.  The defendant walked towards Kwai Shing West Estate Shopping Centre while the male went to the bus terminus.

22.  Later, the defendant was intercepted on the ground floor outside Shop 18 of Kwai Shing West Shopping Centre.  The defendant appeared nervous and kept pressing the pockets of his jacket with his hands.

23.  Upon body search on the defendant, one metal box was found inside the right pocket of his jacket containing the following items (Charge 7):-

(a) A metal box containing two plastic bags containing a total of 1.22 grammes of a powder containing 1.03 grammes of ketamine;

(b) Another metal box containing one plastic bag containing 15 plastic bags containing a total of 7.3 grammes of a solid containing 4.92 grammes of cocaine.

24.  Upon further search on the defendant, two Samsung mobile phones were found in the pockets of his trousers and two notebooks were found inside his waist bag.  Cash of $7,750 was also found on him.

25.  Upon search of the defendant’s home at Room 1914, Block 9, Kwai Shing West Estate, Kwai Chung, the following items were found in the living room (Charge 8):-

(a) A zipper bag containing 11 plastic bags containing a total of 7.77 grammes of a solid containing 5.78 grammes of ketamine;

(b) One pen containing two plastic bags containing a total of 1.34 grammes of a powder containing 1.09 grammes of ketamine and one plastic bag containing a total of 0.62 grammes of a solid containing 0.48 grammes of ketamine;

(c) One plastic bag containing a total of 0.38 grammes of a solid containing 0.29 grammes of cocaine;

(d) One plastic bag containing a total of 0.82 grammes of a crystalline solid containing 0.82 grammes of ‘Ice’;

(e) One plastic bag containing a total of 0.04 grammes of a crystalline solid containing ‘Ice’;

(f) One plastic bag containing a total of 0.12 grammes of a solid containing 0.08 grammes of cocaine;

(g) One electronic scale;

(h) Two notebooks; and

(i) 20 SIM cards.

26.  In the video-recorded interview that followed, the defendant admitted under caution that:-

(a) He lived at this Room 1914. He was a transportation worker for a vegetable stall earning a salary of $800 a day. His average salary was about 20,000 a month. The cash of 7,750 seized from him was his salary;

(b) At the time of the offences, he was suspended from driving;

(c) He did not tell his friend that he had been suspended from driving when he borrowed his SY1367;

(d) Drugs in the 7^th charge were purchased by him at $7,000 in the early hours of 28 January 2019 and he kept these drugs with him because he wanted to consume some of them at work and that these drugs would be sufficient for his monthly use;

(e) Drugs seized at his residence belonged to him and were for his own consumption;

(f) D’s mobile phones belonged to him. The black one was used by him to purchase dangerous drugs;

(g) The notebooks belonged to him and he used them to make records of his work. In the notebooks, the HK$ dollars numbers represented the costs of the invoices, the word “一粒 (one packet)” meant a box of goods and “7G” means kilogrammes of goods.

27.  The street value of the drugs seized was stated by Detective Senior Inspector of Police Wong Ka Chun in his statement dated 27 August 2019.

Criminal record

28.  The defendant has 15 previous records involving 29 convictions of which 14 relate to dangerous drugs, one of which is trafficking in dangerous drugs.  There are also two previous convictions of dangerous driving and two previous convictions of using a motor vehicle on a road without third party insurance and one previous conviction of driving while disqualified.

Mitigation

29.  The defendant is aged 35, he was born in Hong Kong, has received education up to Form 2. 

30.  He separated from his wife since year 2013 and he presently has a supportive girlfriend who is a clerk earning $20,000 per month.  He has two daughters from his marriage aged 12 and 8 who are being looked after by his father and his relative.  The defendant’s parents are both divorced and working.  Prior to his remand, the defendant was a transportation worker earning about $20,000 a month.

31.  Defence counsel refers this court to the case of HKSAR v Wan Hing Lung, DCCC 284/2019 and HKSAR v To Yuet Ming,  DCCC  963/2018.

32.  Defence counsel concedes that in the present case there are no special reasons for the defendant not to be disqualified for at least 2 years for this charge nor are there special reasons that would allow the court not to impose an order that the defendant shall attend and complete a driving improvement course under section 72A(1)(a) of the Road Traffic Ordinance. 

33.  Defence counsel submitted that the defendant stood to be disqualified from holding a driving licence in respect of the 1^st charge, 2^nd charge, 3^rd charge, 5^th charge and 6^th charge.

1st Charge

34.  Defence counsel admitted that at the time of offence, the defendant was disqualified from holding any driving licence until 22 September 2020.

35.  His last conviction for dangerous driving was dated 23 September 2016.  Defence counsel conceded that there are no special reasons justifying departure from disqualifying the defendant from holding or obtaining a driving licence for no less than 2 years for the 1^st charge.

2^nd and 5^th charge

36.  Defence counsel also conceded that for the 2^nd and 5^th charge, as these are the 2^nd and 3^rd convictions for driving while disqualified, the minimum disqualification period is no less than 3 years for each of the 2^nd and 5^th charge.  Again, he agrees that there are no special reasons justifying ordering otherwise.

3^rd and 6^th charge

37.  As for the 3^rd and 6^th charge of using a motor vehicle without third party insurance, defence counsel again conceded there are no special reasons here and that the defendant would be disqualified for a period of no less than 12 months nor more than 3 years from the date of conviction.

38.  He invited this court to consider ordering the substantial part of disqualification order for Charges 2 and 5 be served concurrent to each other as a matter of totality.

39.  It was conceded by defence counsel that imprisonment was inevitable and he asked this court to deal with the defendant leniently.

40.  As for the drug trafficking charges (7^th charge and the 8^th charge), the defence counsel submitted that the defendant was in need of money and therefore put the drugs in the 7^th charge for sale.  He said some of the drugs in relation to the 8^th charge was for the defendant’s own consumption and the rest was for sale. 

7^th Charge

41.  He invited this court to adopt the combined approach for each of the 7^th and the 8^th charges.  He calculated the sentencing starting point for the 7^th charge as 3 years and 9 months’ imprisonment, 3 years and

6 months’ imprisonment and between 3 years and 7 months’ and 3 years and 8 months’ imprisonment using the absurdity test, conversion test and ratio test respectively.

8^th charge

42.  Defence counsel submitted that all the ‘Ice’, ie 0.82 grammes of methamphetamine hydrochloride and 1.09 grammes of ketamine in powder form and around 1.5 grammes of ketamine out of the 6.26 grammes seized were intended for the defendant’s own consumption.

43.  Defence counsel asked this court to accept the above contention, relying on the defendant’s recent previous convictions on drug relating offences.  He says such amount of drugs intended for the defendant’s own consumption amounts to a significant proportion of drugs as in the case of HKSAR v Choi Chun Wo [2018] 5 HKLRD 717.

44.  Defence counsel submitted that the sentencing starting point using the absurdity test, conversion test and ratio test are respectively 60 months’ imprisonment, 52 months’ imprisonment and 47 to 48 months’ imprisonment respectively.  He asked this court to reduce the same in view of the defendant’s claim for self-consumption.

Discussion

45.  This court has considered all submission in mitigation by defence counsel, including the cited authorities.  The personal background and the circumstances under which the defendant committed these offences did not afford the defendant valid mitigating grounds.

46.  The court will first deal with the road traffic offences.

1^st charge

47.  On the conviction or indictment of this offence, a person is liable to a fine of HK$25,000 and to imprisonment for 3 years.

48.  In the case here, from the agreed Summary of Facts, no doubt the defendant had engaged in persistent, aggressive and deliberate course of very bad driving.  He had repeatedly disobeyed traffic signs, crossing double white lines, making U‑turns, turning right at road junctions where the same was not allowed and rushing red light. 

49.  During his escape from apprehension by police officers, his driving was so dangerous and irresponsible that he collided with the police car on reversing his car.  He further collided with two other vehicles resulting in injury to two persons on board and damages to these vehicles.  He also drove his vehicle in directions opposite to traffic flow.  Further, his car later rammed into the road fence.  He also drove the vehicle in such manner as aforesaid whilst he was disqualified and when he was driving without third party insurance.

50.  Considering the above, this piece of dangerous driving was the most serious type, save that, luckily for all, the injury of the two persons were not very serious.  There was no fatality and the resulting property damage was not as serious as they could be.

51.  The seriousness of the dangerous driving here is more serious than that in the cited case of Wan Hing Lung as it involves injuries to persons. 

52.  The appropriate sentencing starting point for this offence in the circumstances of this case is 2 years and 3 months’ imprisonment. 

53.  The defendant has two previous similar convictions, one in March 2015 and the last one in September 2016 for which he was sentenced to 16 months’ imprisonment. 

54.  This is his third conviction of dangerous driving.  This court considers the defendant a persistent offender for this offence.  That being an aggravating factor, the sentencing starting point is enhanced by 3 months to 2 years and 6 months’ imprisonment.  The only valid mitigating ground in this case is the defendant’s own guilty plea of which he is entitled to a full one-third sentencing discount.  Accordingly, the defendant is sentenced to 20 months’ imprisonment for this offence.

Disqualification

55.   It is also ordered that the defendant be disqualified from holding or obtaining a driving licence of any kind for a period of 3 years, the same to commence after the defendant has finished his term of imprisonment.  He shall also attend and complete a driving improvement course at his own cost within 3 months prior to the expiry of the disqualification orders in this case.

2^nd charge

56.   A person convicted of this offence is liable to a fine of HK$10,000 and to imprisonment for 12 months.

57.  The defendant has a similar conviction in September 2016 for which he was sentenced to 2 months’ imprisonment and disqualified from holding a driving licence for 12 months.   Consecutive to the disqualification order imposed for dangerous driving charge, he was also ordered to attend and complete a driving improvement course.

58.  This is the second conviction of this offence and having regard to the circumstances of this case, the risk posed to the other road users and property around, this court finds the appropriate sentencing starting point is one of 6 months’ imprisonment.  The defendant is again afforded a one-third sentencing discount for his timely guilty plea and he is sentenced to 4 months’ imprisonment for this charge.

59.  As this court has already considered this driving while disqualified aspect when sentencing the defendant for the 1^st charge, the whole of the sentence of this charge is to run wholly concurrent to the sentence in the 1^st charge. 

60.  The defendant is also disqualified from holding or obtaining a driving licence for a period of 3 years, the same to be consecutive to the disqualification order under the 1^st charge.

5^th charge

61.  This is the third conviction of the offence. The offence date here is 3 weeks after the 1^st and the 2^nd charge offence date. 

62.  The appropriate sentencing starting point here is 6 months’ imprisonment.  Again he is afforded a one-third sentencing discount in view of his guilty plea.  He is therefore sentenced to 4 months’ imprisonment for this offence. 

63.  Similarly, the defendant is disqualified from obtaining or holding a driving licence for a period of 3 years.  The period of disqualification shall run wholly concurrent with the period of disqualification in the 2^nd charge.

3^rd charge

64.  A person convicted of this offence is liable to a fine of HK$10,000 and to imprisonment for 12 months. 

65.  This is the defendant’s third conviction of this offence.  There is one similar conviction in March 2015 and another one in September 2016.  For the 2016 conviction, he was sentenced to 4 months’ imprisonment concurrent with the sentence in the dangerous driving and driving while disqualified offences. 

66.  He was also disqualified for 18 months from obtaining or holding a driving licence.

67.  Considering the driving manner of the defendant at the time of the offence, the appropriate sentencing starting point is 9 months’ imprisonment.  The defendant is afforded a one-third sentencing discount by reason of his guilty plea and is therefore sentenced to 6 months’ imprisonment.  Again, as this court has taken into consideration the fact that the defendant was driving without third party insurance when imposing the sentence for the 1^st charge, this court now orders that the whole of the sentence of the 6 months’ imprisonment here is to run concurrent to the sentence in the 1^st charge.

68.  As there is again no special reasons in this case, the court now orders that the defendant be disqualified from holding or obtaining a driving licence of any class for 2 years from the date of conviction here.

6^th charge

69.  This is the defendant’s fourth conviction of this offence.  Considering the circumstances of this case, including the driving manner of the defendant at the time of this offence, the appropriate sentencing starting point is 6 months’ imprisonment.  In view of the defendant’s guilty plea, he is afforded a one-third sentencing discount, bringing the sentence to 4 months’ imprisonment for this charge.  The sentence of this offence is to run wholly concurrent to the sentence imposed on the 5^th charge. 

70.  As conceded by defence counsel, there being no special reasons here, it is ordered the defendant is to be disqualified from holding or obtaining a driving licence of any class for 2 years and this period of disqualification shall run wholly concurrent to the disqualification order imposed under the 3^rd charge.

71.  The court now deals with the drug trafficking charges.

7^th charge

72.  The defendant conceded that all drugs in connection with this charge are for trafficking.  Considering the results from various calculations from the three tests submitted by defence counsel, the court considers that the sentencing starting point of 3 years and 7 months appropriate for this charge.

73.  Two types of drugs were involved in this offence and cocktail drugs being an aggravating factor, the sentencing starting point is enhanced by 2 months to 3 years and 9 months’ imprisonment. 

74.  This is his second drug trafficking conviction, the last one was in year 2010.  This court is not going to enhance his sentencing starting point as if he is a persistent offender.

75.  The defendant said he committed the offence as he was in need of money.  This is clearly not a valid mitigating ground. Personal circumstances of the defendant is not a valid or useful mitigating factor in this case.  The only useful mitigating factor is his guilty plea of which he is entitled to a one-third sentencing discount.  The defendant is accordingly sentenced to 2 years and 6 months’ imprisonment for this charge.

8^th charge

76.  This court knows that the urine test taken from the defendant shortly after his arrest supported the defendant’s contention that he was taking amphetamine at or near the time of his arrest.  The record shows that his conviction of possession of a dangerous drug in the years 2014, 2015 and 2018, all relate to ketamine.  Defence counsel submitted that the 0.82 grammes of ‘Ice’, 1.09 grammes of ketamine in powder form and 1.5 grammes of ketamine narcotic in this charge are all for the defendant’s own consumption.

77.  This court is willing to accept that a significant proportion of drugs in relation to Charge 8 for defendant’s own consumption.  The total drugs in question weighed 8.54 grammes while the drugs for self-consumption weighed 3.41 grammes, ie about 40 per cent of the weight of the drugs.

78.  Considering the various calculation from the three tests as submitted by defence counsel, the appropriate sentencing starting point for this charge is 52 months’ imprisonment. 

79.  Here, three types of narcotics were involved, cocktail of drugs were made available to potential customer, this is an aggravating factor and the sentencing starting point is therefore enhanced by 3 months to 55 months’ imprisonment. 

80.  The defendant is entitled to a full one-third sentencing discount by reason of his guilty plea.  The sentence is adjusted to 36 months and 20 days’ imprisonment.  As this court accepts that the defendant intended a significant proportion of the drugs under this charge for self-consumption, a further sentencing discount of 5 months and 20 days’ imprisonment is given, accordingly the defendant is sentenced to 31 months for this charge.

81.  To be fair to the defendant, although the defendant was convicted of the two drugs trafficking charge, in total, on the date of offence, he had in his possession a total of 8.38 grammes  of ketamine, 5.29 grammes of cocaine and 0.82 grammes of ‘Ice’ for trafficking.  Considering the calculation results from the three tests, ie the absurdity test, conversion test and ratio test, the sentencing starting point would be respectively 87.6 months’ imprisonment, 55.8 months’ imprisonment and 57 to 58 months’ imprisonment respectively.  This court therefore considers that the appropriate sentencing starting point for trafficking in the total drugs under the 7^th and the 8^th charge shall lie at 57 months’ imprisonment.

82.  As said earlier, there is a cocktail of drugs involved here and that being an aggravating factor, the sentencing starting point should be enhanced for 4 months to 61 months’ imprisonment.  The defendant has a timely plea, of which he is entitled to a full one-third sentencing discount.  Accordingly, he will be sentenced to 40 months and 20 days’ imprisonment for the drug trafficking charges.

83.  Clearly the defendant did not have a significant proportion of the total drugs seized for his own consumption.  However, this court is willing to afford him 3 months’ sentencing discount by reason of his self-consumption of just a portion of the total drugs in question and therefore bringing the total sentence for the two relevant charges to 37 months and 20 days’ imprisonment.

84.  Accordingly, 6 months and 20 days’ imprisonment sentence for the 7^th charge is to run consecutive to the sentence for the 8^th charge and the rest of the sentence is to run concurrent to the sentence in the 8^th charge.

85.  As for the road traffic offences, the defendant has been sentenced to, in relation to the 1^st charge, 20 months’ imprisonment; in connection with the 2^nd charge, 4 months’ imprisonment wholly concurrent to the sentence in the 1^st charge; in connection with the 3^rd charge, 6 months’ imprisonment wholly concurrent to the sentence in the 1^st charge, totaling 20 months’ imprisonment.  The 5^th charge is 4 months’ imprisonment and the 6^th charge is 4 months’ imprisonment wholly concurrent to the sentence in the 5^th charge, bringing the total sentence of the traffic offences to 24 months’ imprisonment.

86.  Considering the totality principle and having regard to the overall culpability of the defendant in the present case, the just and proportionate sentence for the defendant in the whole case would be 58 months and 30 days’ imprisonment. 

87.  Therefore, 1 month and 10 days of the sentence for the 5^th and 6^th charge shall run consecutive to the sentence in the 1^st, 2^nd, 3^rd charge, while the rest of the sentence in the 5^th and 6^th charge shall run concurrent to the sentence in  the 1^st, 2^nd and 3^rd charge, making the total sentence for all the road traffic offences totalling 21 months and 10 days’ imprisonment.

88.  The total sentence for the defendant in this case would therefore come to 58 months and 30 days’ imprisonment.  This court is conscious that the notional sentencing starting point here exceeds 7 years imprisonment but is of the view that meaningful discount has already been given to the defendant in view of his guilty plea.