HKSAR v. Chan Chun Hei

DCCC 267/2021

[2022] HKDC 1022

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 267 OF 2021

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REASONS FOR SENTENCE

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1.At about a quarter to 6 in the morning on 26 September 2020, the defendant, Chan Chun-hei, a young man of previously good character, was driving his vehicle approaching a roadblock set up on a two-lane, one-way road to Shatin. The defendant’s car did not have its headlights on.

2.When the defendant approached the roadblock, he slowed down, and threw a cigarette box out of his car and drove on the reverse against the direction of the traffic in order to evade the police.  He then drove backwards for about 20 metres and had to stop to avoid colliding with an oncoming vehicle. 

3.It was confirmed that inside the cigarette box there were 20 resealable bags containing a total of 2.7 grammes of cocaine. 

4.From the above facts, he was charged with one count of「Trafficking in a Dangerous Drug」, contrary to sections 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, and 「Dangerous driving」, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374.  He pleaded guilty to the driving charge and was convicted upon the facts summarised above. 

5.In respect of the trafficking charge, he pleaded guilty to possession of the dangerous drugs of but not guilty to the trafficking.  The plea was not accepted by the prosecution.  After trial, I did not find the evidence sufficient to prove beyond all reasonable doubt that the defendant had the drugs for trafficking.  He was therefore convicted of simple possession of the drugs involved. 

Personal Background

6.The defendant was 25.  He is of clear record.  He was a partner to a car-repairing firm.  He came from a modest but financially comfortable family. Considering the kind of expenses his parents had to pay for the flat they were staying and that his elder sister was also working, the family was in a financial comfortable situation.  I accept that the defendant had a good character.

7.For the possession of dangerous-drugs charge, there is no clear sentencing guideline, although the usual sentence ranged from 12 to 18 months.  I would use 15 months as a starting point.  In this case, I have to consider that it consisted of 20 packets and the quantity was in the total of 2.7 grammes. The authorities dictated that even when the defendant is convicted of simple possession, the court has to consider the latent risk that apart from using the drugs for his own recreational purpose, he would also pass some of it on either for free or for profit to other users. 

8.By reasons, the number of bags involved in this case, I find there existed a latent risk.  Therefore, I would order another 3 months be added to take into account the latent risk.  Therefore in all, for this charge, the defendant is sentenced to 18 months imprisonment; reduced to 12 months by reason of his guilty plea. 

9.In respect of the dangerous driving charge, again there is no tariff. The severity of the punishment should to be proportionate to the culpability of the driving behaviour involved.  In this case, he drove a car on the reverse against the flow of the traffic.  Although it was still taking when the offence took place, but in Hong Kong, it is the time when traffic begins to appear.

10.The defendant stopped after reversing for 20 metres.  He did not have his headlights on.  He had the presence of mind to stop in time to avoid colliding with an oncoming traffic.  He was in defiance of the direction of the traffic signs and also in an obvious attempt to evade the police from stopping him.  Therefore, I consider on the whole a term of imprisonment of 9 months will match the culpability of his behaviour.  These 9 months is now reduced down to 6 months in view of his guilty plea. 

Mitigation

11.I turn to consider his mitigations.  He had a clear record.  He was gainfully employed.  I have also considered the recommendation of the Commissioner of the Correctional Service.  It was confirmed in the report that he was a drug addict and a DATC order was recommended.  DATC, in my view, is for the purpose of rehabilitation but the circumstances in this case mean that deterrence must take precedence.  In my view, such behaviour and also the latent risk of trafficking are important.  Even accepting he was obviously driving dangerously in a panic he must be punished for his behaviour in order to out a clear message to the public that such behaviour would not be tolerated.  I decided not to accept the recommendation of the Correctional Service, Commissioner. 

12.The two offences are of a different nature and as a matter of principle, they should run consecutively.  However, I consider that the facts of the two cases and therefore the two charges are somehow connected.  I also consider the fact that his dangerous driving could be partly the result of his panic and fear of being intercepted whilst in possession of the dangerous drugs. 

13.Having considered the totality principle, I order that 3 months of the 2^nd charge to run consecutive to the first.  In respect of the 2^nd charge, in accordance of the ordinance, I also order that he be disqualified from driving for 12 months.

14.For the two charges, the defendant is to be imprisoned for a total of 15 months.  He is also disqualified for 12 months and complete the drive improvement course as required by the law.