HKSAR v. Wong Kam Lung

HCCC 188/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 188 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a single offence of dangerous driving and a single offence of trafficking in a dangerous drug at the earliest opportunity in Eastern Magistrate’s Court on 5 June 2017. The defendant was committed to this Court for sentence.

2.The facts agreed in relation to this offence can be summarised as follows.  In the evening of 22 July 2016, police officers in an unmarked police vehicle observed that the defendant was sitting in a vehicle outside Lam Hau Pok public toilet at Lam Hau Tsuen, Yuen Long.  The police officers parked their vehicle alongside the defendant’s vehicle.  Two police officers alighted from the police vehicle and informed the defendant that they were police officers and asked that he leave his vehicle.  However, the defendant in an attempt to escape rammed his vehicle into the side of the police vehicle and his vehicle ended up colliding into a tree in front of him. The defendant was forcibly removed from his vehicle and subdued by the police officers.  The police vehicle was damaged as a result of the defendant’s actions.

3.The police officers searched the defendant’s vehicle and found on the front passenger’s seat in a recycled bag three packets of suspected dangerous drugs.  It was later confirmed that two of the packets contained 1,230 g of a solid containing 518 g of ketamine, whilst the other bag contained 44.1 g of a solid which did not contain any dangerous drug.  The street value of the ketamine at the time of the offence was HK$292,740. 

4.After the defendant was arrested and cautioned he said: “The Ke was given to me by Fat Chai, who told me to “drag” them over here and would afterwards give me $1,000 as the reward.”  “Ke” is an expression for ketamine.

5.The defendant is 29 years of age.  He was born in Hong Kong, and after completing Form 3 in secondary school worked as a decoration worker.  At the time of the offence, the defendant was living with his girlfriend in Yuen Long.  He admits he is a drug addict.  He has a prior conviction for possession of dangerous drugs in December 2008 for which he was fined $5,000 and another two convictions for assaulting a police officer in February 2011 which he received concurrent sentences of 14 days’ imprisonment.

6.The defendant has submitted a letter to the Court in which he expresses his remorse for what he has done.  He explains in detail his personal circumstances and the impact his behaviour has had on the rest of his family.  His father has recently undergone brain surgery and he feels guilty that he is not there to give him comfort and support during his time of need.  He also extends his apology to the police officers involved and regrets his actions.

7.The narcotic content of ketamine involved in the present case falls within the band as set out in the tariff case of S of J v Hii Siew Cheng [2009] 1 HKLRD 1, of 300 to 600 grammes with a corresponding sentence of 9 to 12 years’ imprisonment.  I will adopt a starting point of 11 years’ imprisonment which I will reduce by one-third for the defendant’s guilty plea to 7 years and 4 months’ imprisonment. 

8.The defendant has also been charged with dangerous driving.  This relates to the incident at the time of his arrest where he used his vehicle to side swipe the police vehicle which resulted in his vehicle careering into a tree.  In other words, he used his vehicle in an attempt to resist arrest, and by doing so, put in jeopardy the safety of the police officers concerned.  It would seem in the circumstances that a more appropriate charge would have been an offence of resisting a police officer in the due execution of his duty under section 36(b) of Offences against the Person Ordinance, Cap 212, or criminal damage under section 60 of the Crimes Ordinance, Cap 200.  I am informed that the defendant has also been charged in relation to this case with driving an unlicensed vehicle and using a vehicle without third party insurance.  These two offences have been laid in the Magistrate’s Court where they will be dealt with in due course.  I have naturally not taken them into account when dealing with the offences before this Court. 

9.A person is liable on conviction on indictment for dangerous driving to a fine of level 4 and to imprisonment of 3 years.  For this offence, I would adopt a starting point of 6 months’ imprisonment which I will reduce by one third for the defendant’s guilty plea to 4 months’ imprisonment.  It involved the dangerous use of a vehicle in order to avoid apprehension by police officers in the due execution of their duty.  It occurred in a narrow village road and for a distance of about 7 feet.  There were no other road users on the road at the time. 

10.The offence calls for a period of disqualification which for a first conviction should be not less than 6 months.  I therefore order that the defendant be disqualified from holding or obtaining a driving licence for a period of 12 months.  This order is somewhat meaningless in light of the substantial term of imprisonment that has been passed in relation to the drug trafficking offence.

11.Ms Pauline Leung, on behalf of the defendant, has very helpfully taken me to the photographs of the scene where the defendant was arrested which depicts the position and damage of the vehicles.  Whilst it would appear that it was not a significant collision between the vehicles, it nevertheless was an attempt by the defendant to avoid apprehension which put the safety of the police officers at risk.  As an aggravating factor to the circumstances of the drug trafficking offence, I would have enhanced the sentence by 2 months’ imprisonment.  However, as the defendant has been sentenced in relation to the two separate offences of dangerous driving and drug trafficking, and taking into account the totality principle, I order that 2 months of the sentence on the dangerous driving offence run consecutively to the sentence on the drug trafficking offence. 

12.The defendant is therefore sentenced to 7 years and 6 months’ imprisonment.

Ms Sabra Lo, SPP of Department of Justice, for HKSAR

Ms Pauline Leung, instructed by Ho & Associates, assigned by Director of Legal Aid, for the defendant