HKSAR v. WONG CHUN PO

DCCC 24/2018

[2018] HKDC 1091

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 24 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant Wong Chun Po is charged with 4 charges, namely Charge 1 – Driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374; Charge 2 – 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 3 – Failing to comply with a traffic sign, contrary to regulations 59(1)(a) and 61(1) of the Road Traffic (Traffic Control) Regulations, Cap 374G; and Charge 4 – Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  Mr Wong pleaded guilty to Charges 1, 2 and 4.

3.  The Prosecution asked that Charge 3 be left on court file not to be proceeded with without the leave of the court.  I so ordered.

4.  Particulars of Charge 1 are that Mr Wong, on 12 October 2017, in Hong Kong, being a person who was disqualified from holding or obtaining a driving licence, while he was disqualified, drove a motor vehicle, namely a private car bearing registration mark UG4606, on a road.

5.  Particulars of Charge 2 are that Mr Wong, on 12 October 2017, in Hong Kong, used a motor vehicle, namely a private car bearing registration mark UG4604 on a road when there was not in force in relation to the user thereof by him 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, Cap 272.

6.  Particulars of Charge 4 are that Mr Wong, on 12 October 2017, on a private car bearing registration mark UG4606, at Prince Edward Road East, outside Kam Pik House, Choi Hung Estate, Wong Tai Sin, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 5.69 grammes of a solid containing 4.15 grammes of cocaine.

Admitted Facts

7.  The facts admitted by Mr Wong may be summarized as follows.

8.  On 12 October 2017, while Mr Wong was disqualified from driving, he drove a private car bearing registration mark UG4606 from Tsing Yi to Wong Tai Sin.  Since he was disqualified from driving, no policy of insurance or security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks) Ordinance was in force in relation to Mr Wong’s use of the car.

9.  At almost midnight the same day, at Prince Edward Road East, outside Kam Pik House, Choi Hung Estate, a police motor cycle intercepted Mr Wong’s car. The officer searched the car and found under the ashtray at the control unit one plastic bag containing 19 small plastic bags containing 5.69 grammes of a solid containing 4.15 grammes of cocaine.

10.  Body search of Mr Wong unearthed 2 mobile phones and a zipper bag containing $6,210 cash.

11.  Under caution, Mr Wong stated that he knew he had been disqualified from driving for 6 months from 9 August 2017 and he bought the cocaine for self-consumption.

12.  Mr Wong now admits he was in possession of the cocaine for the purpose of unlawful trafficking.

Criminal record

13.  The agreed criminal record shows Mr Wong to have 3 previous convictions relating to dutiable commodities.

14.  The agreed road traffic record shows that Mr Wong has 10 previous convictions two of which were for driving in excess of speed limit by more than 45 km/h.

Antecedents

15.  The agreed antecedents statement shows Mr Wong to be aged 24 (23 at the time of the offences); that he was educated to F3; that he was an owner of car repairing company.  Mr Wong claimed to be a drug addict of cocaine.  Mr Wong lived in Tsing Yi with his parents and siblings.

Mitigation

16.  Mr Albert Li of solicitor mitigated on behalf of Mr Wong.

17.  The following is a summary of the mitigation submissions.

18.  After some discussion between court and counsel and some negotiation between the parties, Mr Li informed the court that the parties agreed that 25% of the drug involved was for self-consumption.  On this basis, Mr Li asked for discount in the sentence.

19.  Mr Li submitted the following authorities:-

(a) Archbold Hong Kong para 5-533 on “Dangerous Drugs (Trafficking)” at p 599 only;

(b) R v Lau Tak Ming & Ors [1990] 2 HKLR 370;

(c) HKSAR v Ngai Ho Ting, CACC 417/2011; and

(d) HKSAR v Wu Chun Kin (transliteration) [2018] HKDC 820, DCCC 1036/2017, Reasons for Sentence in Chinese.

20.  Mr Li has also submitted a copy of his letter to the prosecution dated 2 May 2018 which confirmed the prosecution’s neutral stance towards the defence’s claim that part of the drug was for self-consumption.

21.  Mr Li relied in particular on para 46 of Ngai Ho Ting and para 20 of Wu Chun Kin.  Mr Li submits that the facts in Wu Chun Kin were much more serious than the present facts and asks for sentences to reflect the difference in seriousness.

22.  Mr Li submits that on this occasion, Mr Wong had not displayed acts of bad driving and had dutifully obeyed the instructions of police officer to stop.

23.  Mr Li asks for concurrent sentences for all three charges but has no submissions to make on the disqualification order.

Sentence

24.  I have considered the mitigation submissions made by and the authorities submitted by Mr Albert Li.

25.  The maximum penalty for the Driving while disqualified offence is a fine of $10,000 and imprisonment for 12 months.

26.  The maximum penalty for the Using a motor vehicle without third party insurance offence is a fine of $10,000 and imprisonment for 12 months.

27.  There is no tariff sentence for either offence; but prison sentences are not uncommon.  The seriousness lies in the fact that victims in traffic accidents may be left without compensation.  The District Court sentencing case of Wu Chun Kin, supra, is no more than a singular instance of how a sentencing judge has dealt with a defendant before him on the fact matrix peculiar to that case.  It has no binding force on this court.

28.  In the case of either offence, assuming first conviction and unless special reasons exist, the court must impose a disqualification order of not less than 12 months’ duration.

29.  For each of Charges 1 and 2, I will adopt a starting point of 3 months’ imprisonment.

30.  Charge 4 being trafficking in a dangerous drug is a serious offence for which a deterrent sentence is called for.

31.  The tariff sentences for trafficking in cocaine are to be aligned with those for trafficking in heroin for weights of pure narcotic up to 600 grammes: Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

32.  The tariff sentences for trafficking in heroin are set in the case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  For trafficking in up to 10 grammes of the drug, the sentence should be between 2 and 5 years.

33.  For Charge 4, I will take a starting point of 3 years and 1 month’s imprisonment.

34.  The offences subject of the three charges occurred at about the same time.  However, the subject of the Charges 1 to 2 pair on the one hand and of Charge 4 on the other are not concomitant offences and therefore should not attract wholly concurrent sentences.

35.  Having considered totality, I will order partially consecutive sentences as between those limbs.

36.  Mr Wong has pleaded guilty in time for which he will be entitled to a 1/3 discount.  In respect of Charge 4, I will give him a further 10% discount for the self-consumption factor.  There are no other mitigating factors that I consider of significance which will earn him any further discount in respect of any of the charges.

[Mr Wong, please stand]

37.  For Charge 1, Mr Wong will go to prison for 2 months.  For Charge 2, Mr Wong will go to prison for 2 months, to be served concurrently with the sentence for Charge 1.

38.  For Charge 4, Mr Wong will go to prison for 22 months (a rounded down figure).  One month of the concurrent sentences for Charges 1 and 2 will be served consecutively to the sentence for Charge 4.  The total sentence is therefore 23 months’ imprisonment.  In addition, in respect of Charges 1 and 2, Mr Wong will be disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months; the periods of the two disqualification orders are to run concurrently.