HKSAR v. CHAN KIN FUNG

DCCC 984/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 984 OF 2015

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REASONS FOR SENTENCE

1.  Chan Kin Fung you have pleaded guilty to one charge of possession of an offensive weapon in a public place, namely an extendable steel baton, contrary to section 33 of the Public Order Ordinance[1] (charge 1); one charge of possession of 0.70 gramme of a powder containing ketamine, contrary to section 8 of the Dangerous Drugs Ordinance[2] (charge 2); one charge of driving while disqualified, contrary to section 44 of the Road Traffic Ordinance[3] (charge 3); one charge of driving an unlicensed vehicle, contrary to section 52 of the Road Traffic Ordinance (charge 4), and one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[4], (charge 5).

2.  Full details of the offences are set out in the facts admitted by you today.  In summary at around 9:50 on the morning of 26 May last year the police intercepted you when you alighted from the driver’s seat of private car RR 436. 

3.  The police carried out a search and found an extendable steel baton from your right front trouser pocket; one transparent re-sealable bag contining the ketamine from the right front door of RR 436 and an electronic scale and some transparent re-sealable plastic bags from the storage compartment between the driver’s seat and the front passenger seat.  Under caution you admitted that RR 436 had been assigned to you by the registered owner. 

4.  Investigation revealed that you were disqualified from driving for 8 months from 12 November 2014; the insurance of the vehicle had expired on 10 September 2014; and the vehicle licence had expired on 29 October 2014. 

Mitigation

5.  In passing sentence I have taken into account everything said on your behalf by Mr Boyton.  I am told that you worked part-time for Jet Fame International Limited who bought the car for your use in visiting construction sites.  Mr Boyton has submitted the witness statement of the project officer of Jet Fame which details your use of the car and your responsibility to licence and insure the car.  The vehicle licence and insurance had expired because you knew you were to be disqualified.

6.  You cannot be given credit for a clear criminal record having previous convictions, inter alia, for offences of dishonesty; drugs and acting as a member of a triad society.  I take into account that your last criminal conviction was in 2007. The same cannot however be said of your traffic record which shows you have been disqualified three times in 2006, 2013 and 2014.

Possession of an offensive weapon in a public place (charge 1)

7.  Mr Boyton tells the court that you had the extendable baton for warding off wild dogs when visiting construction sites.  As indicated in court taking into account that you were stopped not on or near a construction site but on a street in Yuen Long with the baton in your pocket, I do not accept this explanation. 

8.  Section 33(2)(d) of the Ordinance provides that a person convicted of an offence who is of the age of 25 years or more shall be sentenced to imprisonment for not more than 3 years.  There are no guideline sentences, the length of sentence depending on the facts of each case. 

9.  An extendable steel baton is capable of causing very serious harm.  The carrying of such a baton in a public place is a serious offence.  I am satisfied the proper starting point after trial is 9 months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 6 months imprisonment.

Driving whilst disqualified (charge 3)

10.  I am told that on that morning you received a call from your girlfriend who was shopping in Yuen Long.  Your girlfriend said she was feeling unwell and wanted to see a doctor.  Foolishly you drove to collect your girlfriend and while waiting for your girlfriend you were intercepted by the police.  

11.  I have real reservations about accepting this explanation for driving while disqualified.  Even on what I am told this was not an emergency situation as clearly there was available public transport.  Your girlfriend could quite easily have taken a taxi or gone to a nearby clinic for medical treatment.  I am satisfied your driving was a flagrant breach of the disqualification order.

12.  Unless there are very exceptional circumstances a custodial sentence is appropriate where there is a flagrant breach of the disqualification order (see for example HKSAR v Ng Suen Wai[5]). I am satisfied the appropriate starting point is 3 months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months imprisonment.

Disqualification

13.  There is mandatory disqualification for driving while disqualified unless the court finds special reasons.  The minimum period of disqualification stipulated in section 44(2) of the Road Traffic Ordinance for a first offence is 12 months. There being no special reasons I am satisfied the appropriate period of disqualification is 12 months.  You are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months. 

Driving an unlicensed vehicle (charge 4)

14.  I am satisfied for a first offence a fine only is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to a fine of $500, which you have consented can be taken from your bail money. 

Using a vehicle without third-party insurance (charge 5)

15.  Driving without insurance places all other road users at risk. This being your second offence of using a vehicle without third-party insurance I am satisfied a custodial sentence is appropriate.  A starting point after trial of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months imprisonment. 

Disqualification

16.  By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance unless the court finds special reasons there is also mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction.  Again I find no special reasons not to disqualify you.

17.  Considering this is your second offence I am satisfied a period of 18 months disqualification is appropriate.  You are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today.  I order the two periods of disqualification to run concurrently.

Totality

18.  Possession of an offensive weapon and the driving offences are separate and distinct offences for which consecutive sentences are appropriate.  I am satisfied wholly consecutive sentences are appropriate making a total sentence on charges 1, 3 & 5 of 8 months imprisonment.   

Possession of a dangerous drug (charge 2)

19.  Section 54A of the Dangerous Drugs Ordinance provides that no sentence of imprisonment may be imposed for the offence of possession of a dangerous drug without first considering the suitability for cure and rehabilitation.

20.  Although the calling of a report appears mandatory, in my view, this is only mandatory where a court can impose a sentence of detention in a drug addiction treatment centre.  I am satisfied that where at the same time sentence of imprisonment is mandatory for other offences, in this case possession of an offensive weapon, the provisions of section 54A do not apply.  Both Mr Hotten and Mr Boyton agree where a court cannot impose a drug addiction treatment centre the provision should not apply.  To call for a report only to disregard the report would be a waste of public funds. 

21.  In HKSAR v Mok Cho Tik[6] the Court of Appeal said for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  Taking into account the small quantity of ketamine, I am satisfied a starting point of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months imprisonment.

Totality

22.  Possession of a dangerous drug is separate and distinct from possession of an offensive weapon and the driving offences.  I am satisfied a wholly consecutive sentence is also appropriate making a total sentence to be served by you of 10 months imprisonment, which I am satisfied properly reflects your criminal culpability on the five charges.

Sentence

23.   In summary you are convicted and sentenced as follows:

Charge 1 – 6 months imprisonment;

Charge 2 – 2 months imprisonment consecutive to charge 1;

Charge 3 – 2 months imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months;

Charge 4 – fined $500 from bail;

Charge 5 – 2 months imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today concurrent with the disqualification on charge 3;

The terms of imprisonment on charges 3 & 5 are ordered to be served concurrent to each other but consecutive to charges 1 & 2.

Total sentence 10 months imprisonment.