HKSAR v. KONG KA CHEUNG

DCCC 875/2018

DCCC 886/2018

[2019] HKDC 966

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 875 & 886 OF 2018 (heard together)

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REASONS FOR SENTENCE

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DCCC 875/2018

1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug and one count of possession of Part 1 poison.

2.  The summary of facts is that at about 11:13 on 13 February 2018, the defendant was about to walk towards a private vehicle with registration mark PM1222 (“PM1222”).  At that time, the defendant noticed some uniformed police officers in the area and immediately walked away.  However, he was intercepted by police.  When he was asked to open the car doors of PM1222, he refused and remained uncooperative.

3.  At about 11:26, the defendant fled but was ultimately caught by the police. He was arrested.  Later on, PM1222 was unlocked and the following items were found:-

(1) 9.87 grammes of methamphetamine hydrochloride (“E1”); and

(2) A foilpack containing 2 tablets sildenafil (“E2”).

4.  The defendant possessed E1, which had an estimated street value of $5,757, for the purpose of trafficking; and was in possession of E2, which is a Part 1 poison.

DCCC 886/2018

5.  The defendant is facing a total of 8 charges :-

(1) Dangerous driving (“Charge 1”);

(2) Driving while disqualified (“Charge 2”);

(3) Using a motor vehicle without third party insurance (“Charge 3”);

(4) Driving an unlicensed vehicle (“Charge 4”);

(5) Using a motor vehicle on a road without displaying a valid vehicle licence (“Charge 5”);

(6) Forgery of vehicle document (“Charge 6”);

(7) Resisting a police officer (“Charge 7”); and

(8) Possession of dangerous drugs (“Charge 8”).

6.  He pleaded guilty to Charges 1 to 6 and 8 and not guilty to Charge 7, which will be left on the court file and will not proceed without the leave of the court.

7.  The summary of facts is that at about 01:00 on 28 May 2018, police officers saw a vehicle with registration mark DD407 (“DD407”) drive by a roadblock at So Kwun Po Road near the junction of Jockey Club Road, Fanling. The officers gave chase to DD407 with 2 police vehicles of registration marks AM8132 and AM8070.  DD407 stopped at the red traffic light at the junction of Jockey Club Road, but as the police vehicles closed in on DD407 and as the traffic light turned green, DD407 forced its way out and turned into Jockey Club Road (Fanling bound) despite having collided with AM8132.

8.  DD407 ran 3 sets of red traffic lights along Jockey Club Road and then turned into Sha Tau Kok Road (Fanling bound), then San Wan Road (Sheung Shui bound) and ran 2 sets of red traffic lights along San Wan Road.  The speed limit along Jockey Club Road was 50km/h but AM8132 had to give chase at 120-150km/h and was still unable to intercept DD407.  DD407 then made a U-turn along San Wan Road, turned into Pik Fung Road, and then into Jockey Club Road (Sheung Shui bound).  DD407 then ran another set of red traffic light before turning into Ling Shan Road and stopping near Good View New Village at No 55 Ling Shan Road, Fanling.  The defendant, who was the only man in DD407, then ran away from the driver’s seat but was subsequently found by a police officer.

9.  At the material times, the defendant drove DD407 on a road dangerously.  He was also disqualified from driving on 28 May 2018.  Furthermore, DD407 was an unlicensed vehicle and it displayed no vehicle licence.  Therefore, the defendant drove DD407 on a road when it was not registered and licensed in accordance with Road Traffic Ordinance.  He also used DD407 on a road when a valid vehicle licence in respect of DD407 was not displayed.  The defendant used DD407 on a road when there was not in force in relation to the defendant such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks) Ordinance.  He, with intent to deceive, used one pair of number plates with registration mark DD407 on vehicle DD407.

10.  Later on, the following dangerous drugs were found inside DD407:-

(1) 3.93 grammes of methamphetamine hydrochloride; and

(2) A cigarette containing 0.10 gramme of cannabis in herbal form.

11.  The defendant was in possession of the said dangerous drugs with an estimate value of $2,500.

Background of the defendant

12.  The defendant is now 45 years old, single, but has 1 son (aged 19) and 2 daughters (aged 9 and 4).  Before arrested by the police, he resided with his mother, a 60 years old housewife, his elder brother, a 48 years old transportation worker, and his children.  He received education up to Form 2.  He worked as a casual decoration worker or a vehicle attendant, earning around $13,000 per month.

13.  He has many previous records, including 4 convictions of dangerous driving, 6 convictions of driving while disqualified, 7 convictions of using a motor vehicle without third party insurance, 2 convictions of driving an unlicensed vehicle, 3 convictions of forgery of vehicle documents, 5 convictions of possession of a dangerous drug and 1 conviction of trafficking in dangerous drugs.

Sentence

DCCC875/2018

14.  Mr Yuen, counsel for the defendant, correctly points out that the sentencing authority for trafficking in “ice” is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  The sentencing guideline for trafficking “ice” up to 10 grammes is 3 to 7 years’ imprisonment.

15.  In mitigation, I am told that the defendant just bought the bag of drug and had agreed to bring it to someone else.  Mr Yuen once submits that the defendant intended to take one-third of the “ice” for his own consumption.  In the absence of any evidence, I do not accept that the defendant intended to consume a “significant proportion” of the ice in this case.  Mr Yuen finally decides not to proceed on this point.

16.  The “ice” involved is almost 10 grammes.  I adopt a 7 years’ imprisonment as the starting point.  In this case, the only mitigating factor is the guilty plea.  Given the usual one-third discount, the defendant is sentenced to 4 years and 8 months’ imprisonment.

17.  I accept Mr Yuen’s submission that in this case, a fine is appropriate for the charge of possession of Part 1 poison.  For this charge, the defendant is fined $600, to be paid within 2 months, or a 3 days’ imprisonment in default of the payment of the fine.

DCCC 886/2018

Charges 1, 2, 3, 4, 5, 6

18.  Mr Yuen submits that the vehicle in question is a “vintage car” close to 20 years old and was directly imported from Japan 2 months prior to the day of offence.  The defendant had not done the necessary registration procedure but was so kin to drive it.  Therefore, he chose to drive it at the small hours of the day in question.  He tried to flee when he spotted the police.

19.  For Charge 1, as Mr Yuen correctly submits, there is no tariff.  The various authorities with resembling facts submitted by Mr Yuen (HKSAR v Ip Cheong-hing, Michael, DCCC389/2012; HKSAR v Tsang Sui Lun, CACC 66/2014; HKSAR v Jim Chong Shing, CACC 186/2003) seems to suggest that a starting point of 2 to 2½ years’ imprisonment is appropriate.  For other Charges, Mr Yuen submits that a fine or a short custodial sentence is appropriate.

20.  For Charge 1, the defendant’s driving manner was appalling.  At the material time, he had jumped a total of 6 sets of red traffic lights, travelled at a speed of no less than 120 km/h where the speed limit was only 50km/h and had once collided with the police vehicle.  Still, I do not consider his driving manner falls within the category of the worst of is kind.  Having considered the whole circumstance, his previous conviction records of dangerous driving and bearing in mind the maximum prison term for this offence is 3 years, I adopt a 2 years and 6 months’ imprisonment as the starting point.  Apart from the guilty plea, there is no mitigating factor warrant any further reduction.  For Charge 1, the defendant is sentenced to 20 months’ imprisonment.

21.  It is plain that Charge 2 constitutes a flagrant breach of a disqualification order.  For Charge 3, the defendant deprived all potential victims of adequate financial protection, particularly when he drove the vehicle in such a dangerous manner.  Too kin to drive a “vintage car” is not an excuse. 

22.  For each of Charge 2 and 3, a custodial sentence is appropriate where there is a “flagrant” or a “blatant” breach.  The defendant’s attitude towards driving was obviously very poor.  He has a number of similar conviction records.  There is absolutely no reason for him to drive at the material time.  He simply intended to drive a newly purchased “vintage” car.

23.  Immediate custodial sentences are necessary for both charges.  I adopt a starting point of 6 months' imprisonment for each charge.  With the guilty plea, the sentence is reduced to 4 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 4 months' imprisonment each of Charge 2 and 3.

24.  For Charges 4 and 5, I accept Mr Yuen’s submission that a fine is appropriate.  For each of them, the defendant is fined $600 or 3 days’ imprisonment in default of payment.  The said fines are to be paid within 2 months.

25.  For Charge 6, there is no sentencing guideline.  However, the “forgery” vehicle document was obviously prepared for the sake of covering up the “unlicensed” vehicle.  The defendant also has 3 previous conviction records for this kind of offence.  I adopt a 9 months’ imprisonment as a starting point.  After given the one-third discount, the defendant is sentenced to 6 months’ imprisonment.

Charge 8

26.  For Charge 8, the quantity of the dangerous drugs involved is not negligible.  Taking into account the “latent” risk, the appropriate starting point is 15 months’ imprisonment.  Given the one-third discount, the defendant is sentenced to 10 months’ imprisonment.

Disqualification (Charges 1, 2 and 3)

27.  The defendant has a poor driving record. For all the “driving” offences, a disqualification order is inevitable.  In HKSAR v Yu Chi Chiu [2017] 1 HKLRD 400, the Court of Appeal said, “A disqualification order is forward-looking and preventative rather than punitive.”  I am told that the defendant is now subject to other disqualification orders, which will be expire in 2023.

28.  For Charge 1, I make a disqualification order of 2 years, consecutive to the current disqualification orders imposed upon him.  In other words, this 2 years’ disqualification order shall not start to run until the expiry of all the existing disqualification orders imposed upon the defendant.

29.  For Charges 2 and 3, I make a disqualification order of 3 years, and they shall run concurrently from the date of conviction (see R v Tang Sik Hung [1995] 1 HKC 723).

30.  The defendant’s driving manner and his repeated flagrant disobedience of disqualification orders render him a serious threat and danger to other road users.  If he wishes to drive again, which is a privilege and not a right, he must learn properly from the very beginning and therefore pursuant to section 70 of the Road Traffic Ordinance (Cap 374), I order him to be re-tested upon the expiry of all disqualification orders.

Overall sentence

DCCC 886/2018

31.  In DCCC 886/2018, the defendant committed driving related offences and dangerous drug related offence.  Nature of these 2 types of offences are different.  However, having considered the totality principle, for the sentence imposed in DCCC 886/2018, I order that all the prison term to be run concurrently.  In other words, the total sentence (regarding only the prison term) is 20 months’ imprisonment.

DCCC 875/2018 and DCCC 886/2018

32.  Regarding the total sentence to be imposed for the present 2 cases, Mr Yuen submits that HKSAR v Ip Cheong Hing, Michael, DCCC389/2012 is a good demonstration of the application of the totality principle.  Also, in reliance on HKSAR v Wong Wan Shan, CACC 9 & 10/2002, Mr Yuen submits that the limitation in passing a 7 years’ imprisonment by a District Court Judge is confined to situations in which the sentences are imposed by the same judge on the same occasion.

33.  However, I am not persuaded that I am capped to impose a sentence of only 7 years’ imprisonment in the present 2 cases.  Obviously, the present 2 cases are to be heard together for the purpose of convenience.  They are not consolidated as one single case.  In any event, I can, if appropriate, to pass a sentence up to 7 years’ imprisonment by adopting a starting point exceeds 7 years.

34.  DCCC 875/2018 involves trafficking in a dangerous drug. DCCC 886/2018, which was committed some 3 months after DCCC875/2018, primarily involve “driving” offence.  For all charges carrying a prison term in the present 2 cases, I adopt a global starting point of 7 years and 6 months’ imprisonment.  With the guilty pleas, the overall sentence is reduced to 5 years.  To achieve this, I order 4 months’ imprisonment (out of the total 20 months’ imprisonment) imposed in DCCC886/2018 to be run consecutively to the 4 years and 8 months’ imprisonment imposed in DCCC875/2018.