HKSAR v. Lee Man Tai

DCCC 965/2020

[2021] HKDC 1580

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 965 OF 2020

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REASONS FOR SENTENCE

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1.The defendant was convicted on his own plea and agreement to Summary of Facts to:-

(a)  a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (1^st charge);

(b)  a charge of possession of offensive weapon in a public place, contrary to section 33(1)  and (2)  of the Public Order Ordinance, Cap 245 (2^nd charge);

(c)  a charge of forgery of documents, contrary to section 111(1)(a)  of the Road Traffic Ordinance, Cap 374 (3^rd charge);

(d)  a charge of forgery of a documents, contrary to section 111(1)(a)  of the Road Traffic Ordinance, Cap 374 (4^th charge);

(e)  a charge of driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374 (5^th charge); and

(f)  a charge of using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272 (6^th charge).

Facts

2.At around 0118 hours on 3 July 2020, police on patrol spotted a private car registration number VY9537 manoeuvring around the Caltex Petrol Station air pump at 89 San Wai Tsuen, San Tam Road, Lok Ma Chau, but the driver did not alight from the car.  Police intercepted the car and told the driver, ie the defendant, to switch off the ignition.

3.The defendant alighted and when asked if there was any contraband on the car, he took out a cigarette box from the storage compartment of the car’s driver door in which 23 transparent resealable bags containing 17 grammes of a solid containing 13.9 grammes of ketamine was found.

4.Upon search of the car, a knife of 50 cm long (total length)  with holster was found underneath the driver’s seat.

5.It was discovered that the car was registered under WV224.  The defendant had no valid driving licence and insurance.  The motor vehicle licence, registration number VY9537, was not valid at the material time. Investigation also showed that the car was once registered under VY9537 but WV224 superseded to be the registration plate number of the car at the material time.

6.The defendant’s learner driving licence expired on 25 March 2015.

7.At all material times, the defendant possessed the seized drugs for unlawful trafficking; and he in a public place, without lawful authority or reasonable excuse, had with him an offensive weapon, namely one knife; and he, with intent to deceive, used a pair of number plates, VY9537, on the car, and likewise used one vehicle licence, VY9537, on the car with intent to deceive; he also drove the car on a road when he was not the holder of a valid driving licence in respect of the vehicle that he was driving; and he used the car on a road when there was not in force in relation to the user thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.

Criminal Record

8.The defendant has 6 previous records relating to 7 charges with none similar to any of the charges for which he was convicted in this case.  Those convictions mostly relate to violence.

Mitigation

9.The defendant was born in the Mainland China and he arrived in Hong Kong in 1994.  He is single and is 28 years old now.  He lived in a public housing estate with his maternal grandmother of which the defendant was the main carer.  Both of the defendant’s parents are working and the defendant also has a younger brother.  He also has a daughter living apart studying Primary 2. The daughter lives with her mother.

10.The defendant received education up to Form 5 and he used to be a decoration worker earning $32,000 per month, but because of the pandemic his income dropped substantially.  And he was the main breadwinner of the family, he used to contribute $5,000 monthly to his mother and $5,000 monthly to his maternal grandmother.  He was also responsible for the expenses for his daughter.

11.The defendant is now deeply remorseful for his misdeed and he felt sorry that he has caused worry of the grandmother.  Defence counsel said because of the financial stress, the defendant made the wrong decision to earn quick money and committed the present offences, and that he promised to abide by the law in future and not to transgress the law again upon his release.  In support of this mitigation, defence counsel submitted the letter from the defendant for the consideration of this court.

12.In relation to the 1^st charge, defence counsel submitted that following the guideline in the case of HKSAR v Hii Siew Cheng [2009] HKLRD 1, the appropriate sentencing starting point for trafficking 13.9 grammes of ketamine is about 4 years and 2 months’ imprisonment.  He submitted that by reason of the defendant’s guilty plea, he should be entitled to a full one-third sentencing discount and therefore the sentence for the 1^st charge should not exceed 34 months’ imprisonment.

13.As for the 2^nd charge, defence counsel referred this court to the case of HKSAR v Chan Yiu Shing and Another [2018] 1 HKLRD 990 where it said that if the offender is not less than 14 years of age, a custodial sentence should be imposed and that the maximum sentence is 3 years’ imprisonment.

14.It is also said that there is no sentencing guideline for this offence and that the sentence in each case shall be determined in the light of its overall circumstances, including the nature of the weapon concerned, the degree of injury that might be caused, as well as the ultimate intention of possessing such a weapon.

15.Defence counsel also referred this court to the case of HKSAR v Satwinder Singh, HCMA 198/2018, where the court viewed that a starting point of 12 months is appropriate for possessing a knife of 34 cm as well as the case of 香港特別行政區 訴 王威, HCMA 314/2019, where on appeal the court says that 7 months’ imprisonment is appropriate on a guilty plea.  There is also the case of 香港特別行政區 訴 黃義輝, DCCC 1063/2020, where the court imposed a sentence starting point of 9 months’ imprisonment for possessing an extendable aluminium rod of 31cm in length (unextended)  and 41cm in length (extended).

16.In relation to the 3^rd and 4^th charge of forgery of documents under the Road Traffic Ordinance, defence counsel referred this court to the case of HKSAR v Tsang Kwun Wing, CACC 89/2004, and said that although there is no mentioning of the sentence of forgery of documents, the sentence for this kind of offence runs concurrently with a charge of theft. 

17.Defence counsel also referred this court to the case of 香港特別行政區 訴 麥沾霆, DCCC 62/2021, as well as the case of 黃義輝.

18.He asked this court to give the defendant also a one-third sentencing discount by reason of his guilty plea.

Discussion

19.Before sentencing, this court has considered carefully the mitigation submission by defence counsel including the mitigation letter from the defendant and the legal authorities referred to the court.

1^st Charge

20.Trafficking in a dangerous drug is a very serious offence and personal background is seldom a valid mitigating factor.  The maximum sentence for this offence on conviction of indictment is a fine of $5 million and imprisonment for life. 

21.The court accepts the submission by defence counsel that the appropriate sentencing starting point for this charge is 50.4 months’ imprisonment and that by reason of his guilty plea he is afforded one-third sentencing discount.  He is therefore sentenced to 33 months’ imprisonment for this charge.

2^nd Charge

22.The defendant is aged over 25 years old and for this reason, on conviction of this charge, the maximum sentence is 3 years’ imprisonment.

23.The knife in question is of 50 cm in length.  It is actually a machete knife.  The blade alone measured 14 inches in length and its design with holes on the blade makes the same more deadly.  This knife is obviously not one for normal household use but for combat. 

24.Compared to the nature of the offensive weapons in the cases cited to this court by defence counsel, this machete knife is much more vicious and lethal.  The court has considered the authorities referred to the court and finds the weapon for these cases not as lethal as the machete knife in our case.  The defendant has previous criminal convictions involving violence.

25.The knife at the time when seized was put under the driver’s seat and is therefore easily within the reach of the defendant as the driver. 

26.The offence was committed in the early hours of the day when the defendant was inside a car with false registration plate as well as invalid vehicle licence. 

27.Having regard to the nature of the weapon and the overall circumstances of the case, the appropriate sentencing starting point would be 15 months’ imprisonment.  The same is reduced to 10 months’ imprisonment by reason of the defendant’s guilty plea.

3^rd and 4^th Charge

28.On conviction, a person is liable to a fine of $10,000 and imprisonment for 3 years. 

29.Commission of these offences would make it very difficult for any person to identify the car in question.  However, this court noted, as pointed out by defence counsel, the registration number was in fact the old registration number of this car and not one totally unrelated to the car. 

30.For each of these 2 charges, the appropriate sentencing starting point is 9 months’ imprisonment and the same is discounted to 6 months’ imprisonment upon defendant’s guilty plea.

5^th Charge

31.On first conviction of this charge, a person is liable to a fine of $5,000 and imprisonment for 3 months. 

32.The defendant knew he never had a valid driving licence and that his learner driving licence had expired 5 years before. 

33.The appropriate sentencing starting point is 6 weeks’ imprisonment and the same is reduced to 4 weeks’ imprisonment by reason of the defendant’s guilty plea.

6^th Charge

34.A person convicted of the charge is liable to a fine of $10,000 and to imprisonment of 12 months. 

35.Appropriate sentencing starting point here is 9 months.  The same is reduced to 6 months’ imprisonment by reason of the defendant’s guilty plea. 

36.The defendant is also disqualified from holding or obtaining a driving licence for all classes of vehicles for 3 years from today, ie the date of conviction.

Totality

37.Considering the totality principle and the overall culpability of the defendant in this case, the court considers that after plea, 49 months’ imprisonment is a just and proportionate sentence. 

38.Accordingly, sentence for the 3^rd and 4^th charge is to run wholly concurrent to each other.  Sentence for the 5^th and 6^th charge again to run wholly concurrent to each other.  2 months of the sentence for the 5^th and 6^th charge to run consecutive to the sentence for the 3^rd and 4^th charge. The rest of the sentence to run concurrently with the sentence for the 3^rd and 4^th charge.  Total sentence for the 3^rd, 4^th, 5^th and 6^th charge is therefore 8 months’ imprisonment.

39.The nature of the 1^st, 2^nd charge and the other charges are entirely different although they were committed at the same time. But considering the overall culpability of the defendant, the court now orders that 8 months of the sentence for the 2^nd charge and 8 months of the sentence for the 3^rd, 4^th, 5^th and 6^th charge are to run consecutive to the sentence in the 1^st charge. 

40.Therefore the defendant is sentenced to a total of 49 months’ imprisonment for this case.