HKSAR v. Lee Wing Ho

DCCC 836/2019

[2020] HKDC 261

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 836 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.The defendant is convicted upon his own guilty plea of the following 15 charges:-

1^st Charge: Dangerous driving, contrary to s 37(1) of Cap 374

2^nd Charge: Taking conveyance without authority, contrary to s 14(1) of Cap 210

3^rd Charge: Breach of condition of learner’s driving licence, contrary to reg 30(1) and 46(2) of Cap 374B

4^th Charge: Breach of condition of learner’s driving licence, contrary to reg 30(4) and 46(2) of Cap 374B

5^th Charge: Breach of condition of learner’s driving licence, contrary to reg 30(3)(b) and 46(2) of Cap 374B

6^th Charge: Using a motor vehicle without third party insurance, contrary to s 4(1) and (2)(a) of Cap 272

7^th Charge: Possession of a dangerous drug (0.36 gramme of a solid containing cocaine), contrary to s 8(1)(a) and (2) of Cap 134

8^th Charge: Taking conveyance without authority, contrary to s 14(1) of Cap 210

9^th Charge: Dangerous driving, contrary to s 37(1) of Cap 374

10^th Charge: Breach of condition of learner’s driving licence, contrary to reg 30(1) and 46(2) of Cap 374B

11^th Charge: Breach of condition of learner’s driving licence, contrary to reg 30(4) and 46(2) of Cap 374B

12^th Charge: Breach of condition of learner’s driving licence, contrary to reg 30(3)(b) and 46(2) of Cap 374B

13^th Charge: Driving an unlicensed vehicle, contrary to s 52(1)(a) and (10)(a) of Cap 374

14^th Charge: Using a motor vehicle without third party insurance, contrary to s 4(1) and (2)(a) of Cap 272

15^th Charge: Possession of dangerous drugs (0.05 gramme of a solid containing ketamine and 1.59 grammes of a solid containing 1.37 grammes of cocaine), contrary to s 8(1)(a) and (2) of Cap 134

The 1^st to 6^th Charges took place on 26 April 2019, the 7^th Charge took place on 27 April 2019, and the 8^th to 15^th Charges took place on 12 May 2019 when the defendant was on police bail after he was arrested on 27 April 2019.

Facts

2.At about 1 am on 26 April 2019, police offices PC26444 (“Officer Liu”) and PC26301 (“Officer Hung”) set up a roadblock outside Shek Kip Mei Estate.  A private car bearing registration mark VN854 (“the Vehicle”) was intercepted for enquiries. The defendant was the driver of the Vehicle with no passengers on board.  When Officer Liu and Officer Hung were about 1 foot away from the defendant, they instructed the defendant to produce his driver’s licence.  When Officer Hung asked the defendant to produce his driver’s licence for the third time, the defendant suddenly pulled over, sped up and left the scene.  Officer hung had to step back to avoid being hit (Charge 1).  They tried to locate the Vehicle in the vicinity but in vain.

3.At about 7 pm on 27 April 2019, police found the Vehicle parked outside Mei Wui House, Woh Chai Street, Shek Kip Mei Estate, Shek Kip Mei.

4.About 45 minutes later, the defendant approached the Vehicle with a car key (the “Car Key”) in his hand, PC24585 (“Officer Yu”) intercepted the defendant for enquiries.  The defendant claimed that his friend Liu Chun Kui (“Liu”) was not in Hong Kong, and hence asked the defendant to pass the Car Key to Liu's father.  The defendant claimed that Liu had not authorized him to use the Vehicle, nonetheless he had been using the Vehicle for a few days (Charge 2). 

5.Upon search of the Vehicle, the following items were found inside the Vehicle:-

(i) two plastic bags containing suspected dangerous drugs (“DD1”) on the floor of the left front passenger seat; and

(ii) one electronic scale inside the left drawer of the driver’s seat.

6.Upon search of the defendant, a mobile phone and cash of HK$10,400 were found.

7.The defendant was then arrested.  Under caution, he admitted having driven the Vehicle and rammed through a roadblock.  He further admitted that he had learner’s driving licence only and had no third party insurance.  He also said that DD1 was for his self-consumption.

8.A number of cautioned interviews were conducted with the defendant who admitted, inter-alia, the following:-

(i) He took the Vehicle for fun without Liu's authorization;

(ii) On 23 April 2019, his friend Liu passed him the Car Key and asked the defendant to pass it to Liu’s father. He drove the Vehicle although Liu had not authorized him to drive; and

(iii) On 26 April 2019, he drove the Vehicle and rammed through the roadblock.

9.The owner of the Vehicle, Mr Tam Ka Lok (“Tam”), confirmed that he had lent the Vehicle to Liu in February 2019.

10.According to the Certificate of Insurance for the Vehicle, the insurance only covered:-

(i) the policy holder Tam; and

(ii) those who are driving on the policyholder’s order or with his permission.

11.According to the Certificate of Driving Licence Particulars, the defendant held a learner’s driving licence on 26 April 2019.  Therefore when he was driving the Vehicle that day:-

(i) He was not accompanied by a driving instructor who was the holder of a valid driving instructor’s licence (Charge 3);

(ii) He was driving otherwise than such times and in accordance with such conditions as specified (Charge 4);

(iii) He had not displayed a plate to be displayed by a learner driver (Charge 5); and

(iv) He was driving without third party insurance (Charge 6).

12.Government Chemist confirmed that DD1 was 2 plastic bags containing a total of 0.36 grammes of a solid containing cocaine.

13.At 2 am on 12 May 2019, PC18052 (“Officer Lau”), SGT54849 (“SGT Wan”), SPC53692 (“Officer Yeung”) and PC19438 (“Officer Wong”) set up a roadblock outside Kwun Tong Swimming Pool, Lei Yue Mun Road, Kwun Tong, Kowloon for random breath test.  Later on, the police officers intercepted the Vehicle for enquiries. The defendant was the driver of the Vehicle and there was no passenger on board.  When Officer Lau was standing at the front nearside of the Vehicle, he asked the defendant to take a breath test and to produce the driver’s licence.  Since the defendant only carried a learner's driving licence, SGT Wan who stood next to the front offside of the Vehicle asked the defendant to get off the Vehicle for further enquiries.  The defendant suddenly locked the vehicle door and rolled up the windows.  Officer Lau then heard the sound of the engine.  The defendant then drove the Vehicle forward for about 1 foot (Charge 9).  As SGT Wan and Officer Yeung were worried that the defendant’s actions would cause injuries to them, they pulled out their extendible batons and broke the front windows.  SGT Wan then pulled the defendant out of the Vehicle and subduced him.

14.Upon search on the defendant and the Vehicle, suspected dangerous drugs wrapped with HK$10, HK$20 and HK$50 banknotes (“DD2”) were found around the defendant’s waist.  Another 9 re-sealable plastic bags containing suspected dangerous drugs (“DD3”) were found in a storage space near the driver’s seat.

15.Cash of HK$3,880 was found in the Vehicle, and cash of HK$8,500 was found on the defendant.

16.The defendant was then arrested.  Under caution, he admitted he drove the Vehicle without the consent of his friend (Charge 8), and the seized dangerous drugs were for his self-consumption.  He further admitted that since he only carried a learner’s driving licence, he knew he could not drive alone.

17.In a subsequent cautioned interview, the defendant admitted, inter-alia, the following:-

(i) At around 8 pm on 11 May 2019, his friend Liu gave him the Car Key of the Vehicle, and asked him to hand the Car Key to Liu’s father. The defendant then drove the Vehicle without the consent of Liu;

(ii) He drove the Vehicle to Tsim Sha Tsui, and bought 10 packets of cocaine at HK$300 each from an unknown male. He opened 1 packet for his self-consumption. He crushed the cocaine into powder and put it on a HK$20 banknote. He then rolled the banknote, and inhaled the powder. He wrapped the remaining with a HK$50 banknote, and placed it near his waist. The remaining 9 packets were placed near the driver’s seat;

(iii) When he was asked to get off the Vehicle, he was worried he would be arrested. He intended to drive off the Vehicle to leave the scene, but was stopped by the police; and

(iv) He knew that he was required to display the plate for learner’s driving licence at the front and back of the Vehicle.

18.According to the Certificate of Insurance for the Vehicle, the insurance only covered:-

(i) the policy holder Tam; and

(ii) those who are driving on the policyholder’s order or with his permission;

19.According to the Certificate of Particulars of the Vehicle, the certificate expired on 2 May 2019.

20.According to the Certificate of Driving Licence Particulars, the defendant held a learner’s driving licence on 12 May 2019.

21.As such, on 12 May 2019 when the defendant was driving the Vehicle:-

(i) He was not accompanied by a driving instructor who was the holder of a valid driving instructor’s licence (Charge 10);

(ii) He was driving otherwise than such times and in accordance with such conditions as specified (Charge 11);

(iii) He had not displayed a plate to be displayed by a learner driver (Charge 12);

(iv) The Vehicle was not registered and licensed (Charge 13); and

(v) He was driving without third party insurance (Charge 14).

22.Government Chemist confirmed:-

(i) DD2 contained (a) a total of 0.05 grammes of a solid containing ketamine; and (b) 0.05 grammes of solid containing cocaine; and

(ii) DD3 contained a total of 1.54 grammes of a solid containing 1.37 grammes of cocaine.

The defendant’s background and previous record

23.The defendant was born in May 1988. He is now 31 years old. He received education up to Form 5 level. He is single. Prior to the incidents in the present case, he used to work as a stage audio technician for concerts in Hong Kong. His income was unsteady as it depended on whether he was hired for any concerts to be held. On average, he used to earn about HK$15,000 per month. Before he was remanded in custody, he used to live with his mother in Shek Kip Mei Estate.

24.The defendant has 4 previous convictions, including 2 convictions of possession of dangerous drugs sentenced in April and October 2008 and 1 conviction of possession of equipment fit and intended for smoking/injecting/inhaling dangerous drugs sentenced in June 2012. His last conviction was of the offence of fraud. A community service order was imposed on 29 January 2013 but on 5 April 2013, a DATC order was imposed for his breach of the community service order. He was discharged on 24 September 2014.

Mitigation

25.Counsel for the defendant Mr Lee submitted very detailed Skeleton Submissions for Mitigation dated 27 February 2020. In his submissions, Mr Lee frankly admitted that the 8^th to 15^th Charges were committed whilst the defendant was on police bail for the 1^st to 7^th Charges. Mr Lee also referred this court to the following judgments:-

Dangerous driving

· HKSAR v Lee Kwok Lam and others DCCC 1340/2011

· 香港特別行政區訴黃康強及另一人 DCCC 596/2012

· HKSAR v Lo Hon-kwan and another DCCC 676/2015

Taking conveyance without authority

· HKSAR v Cheung Kin Lung DCCC 1082/2015

Possession of dangerous drugs

· HKSAR v Muhammad Waqas [2019] 4 HKLRD 323

· HKSAR v Mok Cho Tik [2001] 1 HKC 261

· HKSAR v Leung Ting Fung and another [2015] 1 HKC 290

Concurrent or consecutive disqualification orders

· R v Tung Koon Ming HCMA 879/1985

· R v Tang Sik Hung [1995] 1 HKC 723

26.For the 1^st and 9^th Charges of dangerous driving, Mr Lee invited this court to consider adopting starting points of 7½ months’ and 12 months’ imprisonment respectively.

27.For the 2^nd and 8^th Charges of taking conveyance without authority, Mr Lee invited this court to consider adopting a starting point of 6 to 9 months’ imprisonment.

28.For the 3^rd, 4^th and 5^th Charges of breach of condition of learner’s driving licence, Mr Lee invited this court to impose a concurrent sentence and adopt a starting point of 3 weeks’ imprisonment globally for those charges.

29.For the 10^th, 11^th and 12^th Charges of breach of condition of learner’s driving licence, Mr Lee invited this court to adopt the same starting point of 3 weeks’ imprisonment.

30.For the 6^th and 14^th Charges, Mr Lee invited this court to consider adopting starting points of 4½ weeks’ and 6 weeks’ imprisonment respectively.

31.For the 7^th and 15^th Charges, Mr Lee invited this court to consider adopting starting points of 3 weeks’ and 6 to 9 months’ imprisonment respectively.

32.For the 13^th Charge, Mr Lee invited this court to consider adopting a starting point of 3 weeks’ imprisonment to serve concurrently with the sentences imposed in the 10^th to 12^th Charges.

33.Regarding the disqualification orders, Mr Lee submitted that there is no special reason for this court to order disqualification periods shorter than the statutory minimum. Relying on R v Tung Koon Ming and R v Tang Sik Hung, Mr Lee submitted that all disqualification orders should run concurrently.

34.For the 1^st to 7^th Charges, Mr Lee asked this court to consider imposing (i) concurrent or mostly concurrent sentence in the 2^nd and 7^th Charges respectively with the 1^st Charge, and (ii) concurrent sentence in each of the 3^rd to 6^th Charges with the 1^st Charge.

35.For the 8^th to 15^th Charges, Mr Lee invited this court to consider imposing (i) concurrent or mostly concurrent sentence in the 8^th Charge with the 9^th Charge, (ii) concurrent sentence in each of the 10^th to 14^th Charges with the 9^th Charge, and (iii) partly consecutive sentence in the 15^th Charge to the 9^th Charge.

36.As there are two sets of offences, one being the 1^st to 7^th Charges committed on 26 and 27 April 2019 and the other being the 8^th to 15 Charges committed on 12 May 2019 whilst the defendant was already on police bail, Mr Lee invited this court to consider ordering around 30% to 50% of the sentence in the 2^nd set of offences to run consecutively to the sentence in the 1^st set of offences.

Sentence

37.In imposing sentence in the present case, I will give one-third discount to the defendant for his timely indication of guilty plea. I do not think there is any further valid mitigating factor justifying further reduction in sentence.

38.For sentences in non-imprisonment terms, eg disqualification order and fine, the sentences are imposed having taken into account the defendant’s timely indication of guilty plea.

39.(i) With respect to the 1^st Charge of dangerous driving, it is noted that the defendant sped up the Vehicle and drove away. I adopt a starting point of 9 months’ imprisonment. The sentence for the 1^st Charge is reduced to 6 months’ imprisonment after 1/3 discount. I also order that the defendant (a) be disqualified for a period of 18 months from the date of conviction and (b) to attend and complete driving improvement course at his own expenses within the last 3 months of his disqualification period.

(ii) The 9^th Charge of dangerous driving was committed whilst the defendant was on police bail. I will adopt a starting point of 10½ months’ imprisonment. After giving one-third discount for his timely indication of guilty plea, the sentence is reduced to 7 months’ imprisonment. I also order that the defendant (a) be disqualified for a period of 27 months from the date of conviction and (b) to attend and complete driving improvement course at his own expenses within the last 3 months of his disqualification period.

40.(i) Regarding the 2^nd and 8^th Charges, in addition to the judgments submitted by Mr Lee, I have considered the following Reasons for Sentence:-

· 香港特別行政區訴 武皇英 DCCC 714/2015

· 香港特別行政區訴劉志華 Daniel DCCC 1127/2016

· 香港特別行政區訴郭志聰 DCCC 313/2018

(ii) The defendant committed the 2^nd and 8^th Charges when he was only holding a learner’s driving licence and was not accompanied by a driving instructor. His conduct was extremely irresponsible and could cause great danger to other road users and pedestrians.

(iii) For the 2^nd Charge, I adopt a starting point of 12 months’ imprisonment, and reduced it to 8 months’ imprisonment for his timely indication of guilty plea.

(iv) The 8^th Charge was committed when the defendant was on police bail. I adopt a starting point of 14 months’ imprisonment for the 8^th Charge, and reduced it to 9 months and 10 days’ imprisonment for the guilty plea.

41.(i) Regarding the 6^th and 14^th Charges, in addition to the Reasons for Sentence mentioned in the preceding paragraph, I have also considered the Reasons for Sentence in HKSAR v Chan Chi Keung DCCC 66/2014.

(ii) For the 6^th Charge, I adopt a starting point of 4½ months’ imprisonment and reduced it by one-third to 3 months’ imprisonment for his guilty plea. By virtue of section 4(2)(a) of Cap 272, I order that the defendant be disqualified for a period of 18 months from the date of conviction.

(iii) The 14^th Charge was committed whilst the defendant was on police bail. I adopt a starting point of 5.25 months’ imprisonment and reduced it to 3 months and 2 weeks’ imprisonment for his guilty plea. I also order that the defendant be disqualified for a period of 27 months from the date of conviction.

42.(i) Regarding the 7^th Charge of possession of a dangerous drug, having considered the judgment in HKSAR v Muhammad Waqas [2019] 4 HKLRD 323 I adopt a starting point of 1½ months’ imprisonment, and reduce it to 1 month’s imprisonment for the defendant’s timely indication of guilty plea.

(ii) Regarding the 15^th Charge, in addition to the judgments submitted by Mr Lee, I have considered the following judgements:-

· 香港特別行政區訴陳錦祥 HCMA 189 & 190/2006

· HKSAR v Wong Kam Ho HCCC 315/2011

· 香港特別行政區訴聶多女 HCMA 31/2013

· HKSAR v Cristian Alberto Cardona Quinchia DCCC 155/2016

· 香港特別行政區訴黃世宗HCCC 90/2017

· HKSAR v Mbye Muhammed HCMA 488/2017

· 香港特別行政區訴湯惠鵬HCCC 59/2019

I will adopt a starting point of 9 months’ imprisonment. As the defendant committed the 15^th Charge whilst on bail, I enhance the sentence by 1½ months to 10½ months’ imprisonment. Further, the defendant was intercepted in the early hours on 12 May 2019 outside Kwun Tong Swimming Pool which is quite far away from his home at Shek Kip Mei Estate and since DD2 and DD3 were contained in a number of separate bags/packages, there was a latent risk that those dangerous drugs could reach the hands of other people. I therefore further enhance the sentence by 3 months to 13½ months’ imprisonment. One-third discount is given to the defendant for his guilty plea. The sentence is therefore reduced to 9 months’ imprisonment.

43.For the 13^th Charge, I have considered the Reasons for Sentence in 香港特別行政區訴劉志華 Daniel DCCC 1127/2016. After giving one-third discount for the defendant’s timely indication of guilty plea, the sentence is 3 weeks’ imprisonment and a fine of HK$600.

44.For each of the 3^rd, 4^th and 5^th Charges, after giving one-third discount the sentence is 3 weeks’ imprisonment and a fine of HK$600.

45.The 10^th, 11^th and 12^th Charges were committed whilst the defendant was on police bail. For each of those charges, the sentence is 3½ weeks’ imprisonment and a fine of HK$700 after one-third discount for the defendant’s guilty plea.

46.The total fine for the 3^rd, 4^th, 5^th, 10^th, 11^th, 12^th and 13^th Charges is HK$4,500 to be paid by 4 pm on 25 May 2020.

Total sentence

47.There are two sets of offences, one being the 1^st to 7^th Charges committed on 26 and 27 April 2019 and the other being the 8^th to 15^th Charges committed on 12 May 2019 whilst the defendant was already on police bail. Regarding totality on imprisonment terms after having given one-third discount for the defendant’s guilty plea, I consider a total imprisonment term of 23 months appropriate for the 15 charges in this case. To achieve that end, I order:-

· 2 months in the 1^st Charge,

· 3 months in the 2^nd Charge,

· 1 month in the 7^th Charge,

· 5 months in the 8^th Charge, and

· 3 months in the 9^th Charge

to run consecutively with the 9 months’ imprisonment in the 15^th Charge, and all other sentences are to run concurrently. The total imprisonment term is therefore 23 months.

48.All the disqualification orders are to run concurrently. In other words, the disqualification period is 27 months from the date of conviction.

49.The defendant is required to attend and complete driving improvement course at his own expenses within the last 3 months of his 27-month disqualification period.

50.The defendant is also ordered to pay a total fine of HK$4,500 by 4 pm on 25 May 2020.