COURT: The defendant, Shek Tsz-chung, pleaded guilty to the following two charges before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The first one was trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The second one was causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Chapter 374.
The Admitted Facts disclosed that on 11 May 2019, a team of police officers were conducting anti-dangerous drugs operation in Hung Hom. The team included a Detective Sergeant, that is PW1, and a police constable surname So, that is PW2.
The defendant was seen driving a private car along Shun Yung Street. The defendant stopped the car near a motorcycle parking space outside Lok Man Sun Chuen. PW1 and another officer drove their respective police cars close to the defendant’s car. PW1 stopped his car, that is described as police car 1, next to the defendant’s car with a distance of about two feet from the off side and about two to three feet ahead of the defendant’s car. The other officer stopped his car, that is police car 2, behind the defendant’s car.
PW2 ran towards the defendant’s car and stood between the driver’s door and police car 1. PW2 declared his police identity, showed his warrant card to the defendant and told the defendant to alight from the car. The defendant just looked at PW2 and his warrant card without otherwise responding. PW2 tried to open the driver’s door but it was locked. PW2 again declared his police identity and told the defendant to alight. The defendant turned to look ahead and suddenly drove the car forward.
After colliding with the motorcycle in front of the car, the defendant accelerated to his right, collided with police car 1 and PW2 who was then trapped between the defendant’s car and police car 1. The defendant accelerated again and drove off towards Tin Kwong Road. PW2 fell onto the ground. PW2 felt pain in his right leg and he could not stand up or straighten his right leg. PW2 also suffered abrasion on the back of his left hand.
PW1 gave chase and the defendant was eventually stopped by police car 1 at Ma Tau Wai Road near Bailey Street.
The defendant alighted from the car and took out a black object from the door of the driver’s seat. PW1 chased the defendant and the defendant fell, dropping the black object. The black object was seized and found to have three packets of substance, which was later confirmed to be a total of 743 grammes of a solid containing 570 grammes of ketamine.
The defendant was arrested for the offence of furious driving. Under caution, the defendant said “I had dangerous drug in the car. I worried about being arrested by the police so that I immediately accelerated and drove off.”
The defendant was also arrested for trafficking in a dangerous drug. Under caution, the defendant said “Ah Sir, I sell the ‘K Chai’ to others in order to earn money.”
The estimated retail value of the dangerous drug in question was HK$417,566.
The defendant was also found to be in possession of cash HK$3,206 and renminbi 780 and also a mobile phone.
PW2 was sent to the Accident and Emergency Department of the Queen Elizabeth Hospital. Medical examination revealed that he had abrasion and tenderness at his right knee and abrasion at his left hand. X-ray of his right knee showed fracture around the neck and head of fibula. The clinical diagnosis was fracture of right neck of fibula. PW2 was admitted to the Department of Orthopaedics and Traumatology. He was discharged from hospital on 14 May 2019 and was granted sick leave between 12 May 2019 to 31 July 2019.
Background and Mitigation
The defendant was born in August 1991 so he is now 29 years of age. He is not a man of clear record, having appeared in court on four occasions and has seven convictions. His first conviction was deception in 2007, followed by possession of dangerous drugs in 2012, followed by two triad-related convictions, that is acting as member of triad society and claiming to be a member of triad society and then followed by driving while under the influence of alcohol, failing to report after accident and failing to stop in case of accident.
As for traffic offences, the defendant also had a rather bad record. There was a record of failing to comply with traffic signals in 2014 and 2018. I have already mentioned the driving under influence of alcohol, failing to stop in 2015, there is a careless driving in 2019, there is a driving without necessary light illumination in 2017 and also there were five fixed penalties for driving in excess of speed limit.
According to the antecedents statement, the defendant received education up to secondary Form 2. It was said he did electricity work at a construction sites earning $30,000 previously but was unemployed at the time of the offence. The defendant admitted to be a ketamine user.
Mr Phil Chau, counsel for the defendant, submitted a letter from the Hospital Authority to this Court. It indicated that the defendant suffered from perforated duodenal ulcer in January 2019 and had undergone an operation. Mr Chau submitted that the defendant’s illness explained why he was not working at the time of the offence. Mr Chau clarified that the defendant was not a qualified electrician but was doing sort of odd jobs at the construction sites.
Now, in relation to the trafficking in dangerous drugs offence, Mr Chau submitted a sentence of between 11½ years and 12 years would be appropriate according to the guidelines.
In relation to the dangerous driving charge, Mr Chau accepted the defendant committed the offence while trying to escape from lawful apprehension which is an aggravating factor. Nevertheless, Mr Chau submitted the injuries sustained by the police officer was not too serious. While the defendant must have driven aggressively and may even be erratic, the duration was four minutes.
Regarding to the aggravating factors listed out by the Court of Appeal in the case of Chu Wing Yin, Mr Chau submitted that the defendant’s escape from police pursuit was the major aggravating factor. Mr Chau also asked this Court to consider the totality principle and to order part of the sentence of the dangerous driving to run concurrently with the sentence for the drug offence. There is no quarrel on the disqualification order prescribed by law.
The defendant wrote to this Court himself. Basically, defendant is saying that he is deeply sorry for having caused injury to the policeman and damage to public property. He planned to better himself and equip himself while in gaol and is determined to start afresh. He realised how much he had hurt his family and asked for a chance to reform.
I was also provided with a letter from a chaplain of the Christian Prison Pastoral Association Limited. Chaplain Lam informed this Court that he came to know the defendant and was of the view that the defendant was truly remorseful and wanted to reform himself and Chaplain Lam indicated that he himself and the church would be supporting the defendant.
Consideration for the sentence
Now, I will consider the appropriate sentence for the offence of trafficking in a dangerous drug first. Trafficking in a dangerous drug is a serious offence, a person convicted of this offence upon indictment is liable to be imprisoned for life and a fine of $5 million.
In the case of Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine. The ketamine involved here amounted to 570 grammes, which falls under the category of 300 to 600 grammes, with an appropriate starting point between 9 and 12 years. On a mathematical approach, the starting point should be one of 11 years and 9 months.
Although the defendant is not a first offender, he does not have any conviction of trafficking in a dangerous drug before and I do not propose to increase this starting point. The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. So the sentence for trafficking in a dangerous drug is therefore 7 years and 10 months, that equals to 94 months altogether.
I will now consider the appropriate sentence for causing grievous bodily harm to PW2 by dangerous driving.
A person convicted of this offence on indictment is liable to imprisonment for 7 years and a fine at level 5. I am grateful to Ms Lilly Wong, Senior Public Prosecutor, for providing me with a number of authorities. Basically, the principles in the UK case of Cooksley is applicable to cases of dangerous driving causing death and dangerous driving causing GBH. I will use the aggravating factors listed by the Court of Appeal in the case of Chu Wing Yin in my consideration.
The circumstances of this case was bad. The defendant, knowing that PW2 was a police officer who had stopped his car, tried to escape by driving away and accelerating with no regard for the wellbeing of PW2 as his car collided with PW2 and pinned PW2 between his car and the police car 1. The defendant then sped off and was only stopped by PW1 who gave chase. PW2 suffered from a fracture of his right fibula at its neck. He also suffered from abrasions to his right knee and left hand. He was hospitalised for two days and was given sick leave for 2½ months.
This is not a case of a momentary error of judgment but the deliberate act of driving in a dangerous manner with the sole purpose of trying to escape from the pursuit of the police after being caught for having committed the serious offence of trafficking in dangerous drugs.
The defendant did not just put PW2 in danger, his act also put the other driver, that is PW1, at risk. The defendant’s driving was aggressive but he was not showing off or racing. He must have ignored warnings given by the police under the circumstances but the duration of such dangerous driving was not long, four minutes. Having considered all the circumstances of this offence, I am of the view that a starting point of 2 years and 9 months is appropriate for this offence.
As mentioned earlier, the defendant had a rather bad record relating to traffic offences. He appears to be a habitual “speeder” and has been convicted of driving under the influence of alcohol, failing to stop after accident with damage, and careless driving among others. So I treat his previous record as an aggravating factor and enhance the starting point by 3 months, making an enhanced starting point of 3 years. Now, again, the defendant will be given the full one-third discount for his plea, so the sentence is one of 2 years.
Now, I have to consider the totality principle. No doubt, as admitted by the defendant, he committed the offence and causing GBH to PW2 by dangerous driving in an attempt to escape from legal sanction as he was in possession of a large quantity of ketamine for trafficking. I am of the view that 1 year of the 2 years imposed on Count 2 should run consecutively to the sentence of 7 years and 10 months’ imprisonment imposed on Count 1, making a total of 8 years and 10 months’ imprisonment.
So the actual sentence for Count 1, trafficking in a dangerous drug, 7 years and 10 months’ imprisonment. Count 2, causing grievous bodily harm by dangerous driving, 2 years, 1 year to run consecutively to the 7 years and 10 months imposed on Count 1, making a total of 8 years and 10 months’ imprisonment.
Disqualification order
Section 36A(2) of the Traffic Ordinance, Chapter 374 provides:
“If a court convicts a person of an offence under subsection (1), the court must order that the person be disqualified in accordance with subsection (3) or (4) unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.”
Under subsection (3):
“Subject to subsection (4), the period for which a person is to be disqualified is, for a first conviction, a period of not less than 2 years.”
Now, this is the defendant’s first conviction under this section, and I do not see any special reason to order the disqualification to be for a shorter period and certainly no reason not to disqualify the defendant at all. The defendant is therefore disqualified for a period of 2 years to run from the time the defendant is discharged from prison after serving his sentence.