HKSAR v. Ma Biao

HCCC 262/2018

[2019] HKCFI 722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 262 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and one charge of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374.

The defendant was seen inside a stationary LGV on the carriageway to have passed something through the passenger’s seat window to a man. He suddenly sped across the carriageway when police officers approached him, causing other vehicles to stop and pedestrian to dodge. He continued to attempt to do a U-turn, damaging the roadside railings, causing other drivers to stop or swerve. He then accelerated uphill at a speed of about 70 to 80 kilometres. When he had to turn around at the end of the road, he rammed into the rear of an unattended vehicle. He then got off the LGV and threw a paper bag he took with him onto the ground. He was eventually apprehended by the police officers.

From the bag that he has discarded there were 12 plastic packets containing 286 grammes of a solid which contained 245 grammes of cocaine. He was searched and found to be in possession of three plastic packets containing 72.5 grammes of a solid which contained 57 grammes of cocaine.

The market value of all the drugs were around $378,000 in powder form or $450,000 in crack form.

The defendant is now aged 31. Although he had a clear record at the material time of the present offences, the present offences were committed whilst he was on bail of an offence of AOABH to which he was sentenced to 2-months-and-1-week imprisonment in November 2018.

By way of mitigation, I was told that the defendant failed in his business and owed debts which led him to commit the present offence. He is now deeply remorseful for what he has done and urge for leniency from the court so that he will have a chance to turn over a new leaf. His family members, including his wife and parents, also wrote in.

In sentencing drug-related offences, very little credit is given by the court to factors other than a defendant’s guilty plea. The tariff is one based on the weight of the narcotics. I have taken into account all that could have been said by his counsel, his guilty plea and the letters in mitigation.

The total narcotics in the present case, being 302 grammes of cocaine, and for trafficking in those cocaine, between 200 to 400 grammes, tariff is one between 12 to 15 years. I adopt a starting point of 13 and a half years, 13 years and 6 months. And since this offence is committed whilst he was on police bail for the AOABH charge, I enhance it for 6 months to 14 years. I shall give him the full one-third discount for his plea, so on the 1st charge he is sentenced to 112 months, that is 9 years and 4 months’ imprisonment.

In relation to the dangerous-driving charge, the section provides a maximum sentence of 3 years’ imprisonment and a level 4 fine. I am of the view that the facts of the case reveal a wanton and erratic driving at high speed to make good the defendant’s escape which posed danger to other road users. An unattended vehicle was damaged in this incident. It is only sheer luck that no one was injured. Whilst accepting that this is not a case where circumstances of aggravation as defined in the section when drugs or alcohol was detected in a driver’s blood or urine, this was nonetheless a bad case of its type as the defendant was using the car as a vehicle to traffic in dangerous drugs. I adjudge that a starting point of 2 and a half years is appropriate. Given the one-third discount for his plea, he is sentenced to 20 months’ imprisonment.

Taking into account totality, I order 12 months in respect of Charge 2 to be served consecutively, making a total of 10 years and 4 months.

Whilst this is the defendant’s first dangerous-driving conviction and I cannot order the disqualification period to start after he has completed his sentence of imprisonment under section 69A, I make an order under section 72A of the Road Traffic Ordinance for him to attend driving improvement course. And under section 72A(3C), he must attend and complete the course within three months beginning on the day he finishes his term of imprisonment, which means that he cannot drive until and unless he has completed that course.