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DCCC 300/2019
[2019] HKDC 1086
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 300 OF 2019
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| Before : |
His Honour Judge G. Lam |
| Present : |
Mr. Ho Cheuk Hei, PP, of the Department of Justice,
for HKSAR. |
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Mr. Chan Yip Hei instructed by M/s Francis Kong &
Co. for the defendant. |
| Offences : |
(1) Possession of a dangerous drug（管有危險藥物） |
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(2) Driving a motor vehicle with any concentration of specified illicit drugs（在體內含有任何濃度的指明毒品時駕駛汽車） |
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(3) Possession of a dangerous drug（管有危險藥物） |
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(4) Possession of an offensive weapon in a public place（在公眾地方管有攻擊性武器）
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REASONS FOR SENTENCE
1. The defendant pleaded guilty to 2 charges of "Possession of a dangerous drug" (Charges 1 and 3); a charge of "Driving a motor vehicle with any concentration of specified illicit drugs" (Charge 2); and a charge of "Possession of an offensive weapon in a public place" (Charge 4).
Summary of Facts
Charge 1
2. About 4:00 a.m. on 1 November 2018, a private car suddenly stopped near the junction of Nathan Road and Hillwood Road in Tsim Sha Tsui. PC 24915 (PW1) saw the defendant alighting from that car and leaving the scene. PW1 went up to the car and found no one inside.
3. Through his beat radio, PW1 checked the identity of the registered owner of that car, which turned out to be the defendant. Suddenly, the defendant returned to the scene. He looked lost, did not answer PW1’s questions and moved irregularly. Upon search, 2 paper packets which contained a total of 0.60 gramme of a powder containing 0.52 gramme of ketamine (E1) were found in the defendant’s right front trouser pocket. Under caution, he admitted that the drug was for his own consumption.
4. PW1 then searched the car and found 2 paper packets which contained a total of 0.01 gramme of a powder containing ketamine (E2). The defendant also admitted that the drug was for his own consumption.
5. In his cautioned interview which took place on the following day, the defendant repeated his admissions concerning E1 and E2. He also explained why he left the scene and returned shortly afterwards.
Charges 2 to 4
6. About 7:00 a.m. on 14 December 2018, the defendant was driving a private car VV3831 (the Car). In the course of making a high speed right turn from Salisbury Road onto Kowloon Park Drive, he lost control of the Car. It crashed into a signpost and stopped at the junction. Both the signpost and the Car were seriously damaged.
7. PC 10094 (PW2) was on duty inside a police vehicle nearby and he witnessed the incident. The defendant was trapped in the driver's seat by the airbag. PW2 rescued him and took him to the police vehicle.
8. About 7:15 in the same morning, PW2 handed over the defendant to PCs 45581 (PW3) and 12520 (PW4). PW3 conducted a breath test with the defendant and the result was negative. PW4 searched the black bag which the defendant was holding and found a plastic bag which contained 0.32 gramme of a solid containing ketamine (E3). Under caution, he admitted that the drug was for his own consumption. This is Charge 3.
9. PW3 then conducted a drug influence recognition observation test on the defendant, which he failed. With the defendant's consent, his blood sample was taken on the same day and sent to the Government Laboratory for analysis. The results revealed that his blood sample contained 0.37 μg/ml of 3,4 methylenedioxymethamphetamine and 0.23 μg/ml of ketamine, both of which are "specified illicit drugs" for the purpose of the Road Traffic Ordinance (Cap.374). This is Charge 2.
10. PW3 also searched the Car and found a beef knife (45 cm in length with a 30 cm blade) behind the driver's seat. Under caution, the defendant claimed that the knife was for self-defence since he had many enemies. This is Charge 4.
Mitigation & Sentence
11. The defendant is 39 and has 2 children (aged 15 and 11). He has 8 conviction records, which included 8 drug-related offences[1] and 2 other offences. I assume he has a good driving record since there is nothing before me to suggest otherwise.
12. Defence counsel Mr. Chan informed me that the defendant had an uneasy childhood; his father abandoned the family when he was young. Mr. Chan submitted that the defendant took drugs to relief his stress from work. Prior to this case, the defendant worked in a restaurant earning $18,000 per month. Letters from his employer and ex-girlfriend were placed before me; positive comments from the employer are noted. In view of Charges 1 and 3, I adjourned the sentence pending a DATC Report.
13. Today, Mr. Chan informed me that the DATC Report has been explained to the defendant and he agrees with its contents. The defendant's background is set out in details in the report. I need not repeat them here.
14. For Charges 1 and 3, the defendant had in his possession less than 1 gramme of ketamine in total. Although the DATC Report reveals that he is not a drug dependant, he is not new to drug-related offences. I adopt a starting point of 12 months' imprisonment for each charge. With the timely guilty pleas, the sentence for each charge is reduced to 8 months.
15. Regarding Charge 2, the defendant knew better than anyone that he had consumed dangerous drugs before he sat behind the steering wheel. His driving manner, affected by drugs or not, was appalling. An immediate custodial sentence is required. It is most fortunate that no third parties were injured as a result of the crash; only a signpost and the Car were damaged. Bearing in mind the maximum penalty for this offence[2], I adopt a starting point of 6 months' imprisonment. With the timely guilty plea, the sentence is reduced to 4 months.
16. Charge 4 is a serious offence, so serious that it carries a mandatory sentence of some form of incarceration. Although intended for legitimate purposes, beef knives are no doubt lethal weapons. They are capable of easily causing severe injury or death. When determining the appropriate starting point, I have considered The Queen v LI Chi-lung CACC 363/1995 and HKSAR v IP Chi-wang HCMA 377/2003. I am aware that the defendant has no previous record which is related to violence. I adopt a starting point of 9 months' imprisonment. With the timely guilty plea, the sentence is reduced to 6 months.
17. Mr. Chan submitted that the sentences for Charges 2 and 3 should run concurrently since the ketamine involved in Charge 3 was merely the leftover of what the defendant had consumed. In my view, Charge 1 is obviously separate and distinct from the other 3 charges. Furthermore, the defendant committed Charges 2 to 4 whilst on police bail for Charge 1. Regarding the offensive weapon offence (Charge 4), it is also separate and distinct from Charges 2 and 3.
18. With the totality principle in mind, I consider a global starting point of 2.5 years' imprisonment for all 4 charges to be appropriate. With the timely guilty pleas, the overall sentence is reduced to 20 months. Hence, I order the sentences to run in the following manner :-
(i) Charges 2 and 3 concurrent;
(ii) 4 months in Charge 4 consecutive to Charges 2 and 3; and
(ii) Charges 2 to 4 consecutive to Charge 1.
19. For Charge 2, a disqualification order is inevitable. I make a disqualification order for a period of 2 years[3] (and the disqualification period will start to run from the date of sentencing[4]). I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[5]. In my view, it is unnecessary to order the defendant to re-take his driving licence test.
[1] 5 "simple possession" and 3 "trafficking".
[2] A fine at Level 4 ($25,000) and imprisonment for 3 years.
[3] Section 39K(2) and (3) of the Road Traffic Ordinance (Cap.374) stipulates a mandatory disqualification period of not less than 2 years in the case of a 1st conviction.
[4] Since the defendant has no previous conviction of a "relevant scheduled offence", by virtue of section 69A(1)(b) of Cap.374, the entire section 69A does not apply. Hence, the court has no power to order the disqualification period not to start to run until he finishes serving his prison term.
[5] See section 72A(3B) of Cap.374.
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