HKSAR v. Cheng Joseph (also known as Cheng Yeuk Sat)

DCCC 249/2022

[2023] HKDC 167

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 249 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleaded guilty to 5 charges: -

Charge 1: Trafficking in dangerous drugs, namely 37.5 grammes of ketamine, 1.99 grammes of cocaine, traces of a solid containing cocaine and ketamine;

Charge 2: Driving with the concentration of 0.17 microgramme of ice per milliliter of blood in his blood;

Charge 3: Dangerous driving;

Charge 4: Driving while disqualified;

Charge 5: Using a motor vehicle without 3^rd party insurance.

SUMMARY OF FACTS

2.At around 4:15 am, on 1 November 2021, the police intercepted the defendant vehicle and noticed that he avoided eyes contact with the police.

3.The police instructed him to drive to the search area, the defendant drove slowly initially, but accelerated to around 50 km/h and drove past the search area.

4.The defendant failed to stop at the junction of Tai Nan Street and Wong Chuk Street where there was a stop sign post and a stop sign on the road surface, he drove into the junction and hit the left side of the taxi.  Both vehicles stopped as they were about to crash into the ground shop located at 172-174 of Tai Nan Street (Charge 3).

5.The defendant escaped through the driver’s side window and made his way to Boundary Street, but he tripped and fell onto the ground outside 154 of Tai Nan Street.

6.During the search, the police found the drugs in Charge 1:-

(a)  9 resealable plastic bag which contained 20.9 grammes of ketamine;

(b)  18 resealable plastic bag which contained 1.99 grammes of cocaine;

(c)  28 resealable plastic bags which contained 16.6 grammes of ketamine;

(d)  One blue cardholder containing traces of cocaine and ketamine.

7.There were also two mobile phones and a wallet containing HK$10,202.

8.The defendant was arrested for trafficking dangerous drugs.  He admitted under caution that those drugs were for his consumption.

9.The defendant was arrested for driving offences, he admitted that he had been disqualified from driving for speeding for 1 years by a court order on 24 September 2021 (Charge 4).  He rushed past the roadblock because he had drugs in the vehicle.

10.The government chemist confirmed that there was a detection of 0.17 microgrammes of ice presence in his blood sample (Charge 2).

11.The estimated value of the drugs was $26,263.90.

12.The taxi driver suffered a swelling and tenderness at his scalp and tenderness on his neck, lower back, left thigh and knee.  There were also 2 abrasions at his thigh, each was about 3 cm.

13.The taxi driver was discharged from hospital on the same date, but he is still on sick leave.

14.The vehicle driven by the defendant had a serious damage on various part of its vehicle.

15.The insurance policy did not cover a driver when being disqualified.  ( charge 5 )

RECORD OF INTERVIEW

16.The defendant said that:-

(a)  The drugs (cocaine and ketamine)  were purchased at about 3 am on 1 November 2020 for about $8,000.

(b)  Each packet of cocaine weighted 0.5 grammes while each packet of ketamine weight 0.6 grammes.

(c)  He usually put the drugs into the cardholder to grind them. He then poured the powder out to sniff it.

(d)  He had been a drug addict for 2 to 3 years and consumed 10 grammes of ketamine and cocaine each time.

(e)  The paid the daily rate of $300 to rent the car from a friend 10 days before the date the offences.

(f)  He was aware that he was disqualified from driving , but believed that it was alright for him to drive in the early hours of the morning.

(g)  He ran away from the vehicle because he was disqualified from driving and he had drugs in the vehicle.

(h)  He did not see the taxi when he was making his escape.

CRIMINAL RECORD

17.The defendant has 4 previous criminal convictions: -

(a)  Conspiracy to export a prohibited article without a license;

(b)  2 convictions of trafficking dangerous drugs in 2013;

(c)  Dangerous driving in September 2021 – he was fine $2,500 and disqualified from driving for 6 month and to complete a driving improvement course (this conviction was some 3 months before the present incident )

MITIGATION

18.The defence provided a very brief mitigation, in essence he said that the defendant is now 63 years old, married with 3 sons and 1 daughter.  He has been separated from his wife since 2018.  He is a causal worker making a living of $20,000 per month.

SENTENCE

Charge 1

19.There are sentencing guidelines for trafficking of ketamine and cocaine: -

(a)  (i)  As to cocaine: R v Lau Tak Ming [1990] 2 HKLR 370 – up to 10 grammes, falls into the sentencing bracket of 2 to 5 years.

(ii)  In the present case, 1.99 grammes of cocaine attracts a sentence of 2 years 7 months.

(b)  (i)  As to Ketamine: S J v Hii Siew Cheng [2009] 1 HKLRD 1 – between 10 to 50 grammes, falls into the sentencing bracket of 4 to 6 years.

(ii)  In the present case, 37.5 grammes of ketamine, attracts a sentence of 5 years and 5 months.

20.As this case involved 2 different types of drugs, I have referred to the case of HKSAR v Islam SM Majharul CACC 67/2019 for sentencing.

21.As stated in HKSAR v Yip Wai Yin and another [2004] 3 HKC 367 that “by more or most serious drug, we are not referring to quantities, but to seriousness in term of the potency of the drug.”

22.In the present case, the most serious and potent drug should be cocaine, in term of calculation, cocaine should be used as the base drug.  Therefore, the result of the 3 tests in its starting point is as follows: -

(a)  Absurdity test: 7 years 3 months;

(b)  Conversion test: 5 years 6 months

(prosecution calculation is 5 years 7 months);

(c)  Ratio test: 5 years 6 months

(prosecution calculation is 5 years 7 months).

23.I therefore take 2 years 7 months as the starting point, and increase the sentence by 3 years to take into account of the quantity of ketamine.  It arrives at a sentence of 5 years 7 months.

24.As there are two types of dangerous drugs in Charge 1, it clearly called for an enhancement of sentence.  As said in many appeal cases that in such situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.

25.As such, I enhance the starting point by 2 months to arrive at 5 years 9 months.  Given 1/3 discount, the sentence in Charge 1 is now come down to 46 months, that is 3 years 10 months.

26.As the defence confirmed that the defendant is no longer advancing on the point of self-consumption because: -

(a)  The drug found in his blood is not cocaine /ketamine, it was ice.

(b)  The quantity claimed for self-consumption must reach the thresh hold of “significant proportion” of the total drugs being seized.

27.As such, the defendant is not entitled to any further discount.

28.I now turn to the 4 driving offences: -

The maximum sentence for the driving offences charges: -

Charges	Fine	Maximum sentence	Disqualification period	Improvement driving course
2 –  Drug Driving	Level 4	3 years	1st conviction – 2 years	Yes
3 –  Dangerous Driving	Level 4	3 years	2nd conviction – not less than 2 years + 50 % increase of sentence for aggravating circumstances	Yes
4 –  Driving While Disqualified	Level 3	12 months	1st conviction – not less than 12 months and in addition to any disqualification period
5 –  Driving without 3rdparties insurance	Level 3	12 months	Disqualification period is not less than 12 months nor more than 3 years from the date of conviction

Charge 2 –Driving a motor vehicle with any concentration of a specified illicit drug

Charge 3 – Dangerous Driving

29.In the case of HKSAR v Yip Shing Yeung CACC 216/2021, the appellant was convicted upon his guilty plea for 4 charges: -

(a)  Dangerous driving – drove a rented private vehicle past a police road block dangerously at a high speed, subsequently crashed into a barrier, severely damaged the vehicle. Starting point 30 months was upheld and disqualified for 5 years.

(b)  Driving under the influence of ice – received a sentence of 18 months after discount.

(c)  Driving without a valid license – fine $1,500.

(d)  Driving without 3^rd party insurance – a sentence of 8 months after discount. Disqualified for a period of 3 years.

(e)  All sentence and disqualification period are to run concurrently.

30.I accepted that Yip Shing Yeung is a more serious case as the defendant had an extensive criminal records of the similar nature.

31.As to Charge 3, dangerous driving, there is no sentence guideline, however, with the presence of an illicit drug in the defendant’s blood had the effect of increasing the maximum sentence by 50%.

32.According to S.37(2D)  of the Road Traffic Ordinance – that if an offence under S.(1)  is committed in aggravating circumstances, the maximum fine and term of imprisonment for the offence as set out in S.(1)  also applies to the disqualification period.  That means the term of imprisonment and disqualification period will be increased: -

Term of imprisonment	50% increased	Disqualification period for 2nd conviction	50% increased
3 years	4.5 years	2 years	3 years

33.S.(2E)  (b)  listed out the circumstances of aggravating if at the time of committing the offence: “any concentration of a specified illicit drug is present in the person’s blood or urine.”

34.In the defendant’s blood, there was a concentration of 0.17 microgramme of ice per milliliter.

35.S.4 and S.5 stated that when the defendant is to be regarded as driving dangerously within the meaning of S(1).

36.While S.(6)  stated that “dangerous” refers to danger either of injury to any person or of serious damage to property.

37.In the present case: -

(a)  The taxi driver was injured. Today, I am told that he is fully recovered;

(b)  The defendant’s driven vehicle was seriously damaged as stated in para 15 of the summary of facts.

(c)  I have the opportunity to look at the photos of the 2 vehicles – they were seriously damaged. Air bags of the defendant’s vehicle were also blown out.

38.The defendant also avoided legal consequences by escaping from the police.

39.As stated in the judgement of Yip Shing Yeung, there is a need of deterrence and instilling social responsibility in drivers to drive safely.

40.With all this information in mind, I adopted a starting point of 30 months, reduce to 20 months for his guilty plea and disqualified the defendant from driving for a period of 3 years (Charge 3).

41.In respect of Charge 2, I adopted a starting point of 15 months, reduce to 10 months after 1/3 discount.  He is also ordered to be disqualified from driving for a period of 2 years.

42.I also order the defendant to attend and completed the driving improvement course at his own costs according to S72A (1A)  of the Road Traffic Ordinance for both Charges 2 and 3.

Charge 4 – Driving While Disqualified

Charge 5 – Using a Motor Vehicle Without Third Party Insurance

43.Driving while disqualified is clearly a flagrant breach of court order.  The disqualification order was imposed on the defendant just under 6 weeks prior to the present incident.

44.In his admission, he thought that it was fine to drive in the morning.  Clearly, he was taking chances that the police would not be able to catch him when there was not much traffic on the road.

45.He also said that he needed to drive to different places and they were far away.

46.He had a large number of small packets of dangerous drugs in his car, obviously, he used the car for delivery of drugs to different places in Hong Kong.  At 4 am, MTR and public transports were not yet in operation. He took the risk to drive, therefore, when he met with the police, he ran away from them.

47.This was exactly what he said in admission: -

(a)  He had the drugs in the car;

(b)  He was under a disqualification order.

48.He knew that he was breaking the law.  What was even worst, he did not stop at the junction, he could not see the taxi was already in the junction, he hit the taxi and caused the taxi driver injuries.

49.Once he was under the disqualification order, he was not covered by insurance.

50.As stated in the judgement of R v Lui Wing Han [1997] HCMA 502/1997that: -

“driving while disqualified and, hence, without third party insurance, is a very serious offence as other road users who are injured in any traffic accident may be left without any compensation.”

51.Simply put, the defendant’s vehicle is not covered by insurance.  The defendant just ignored the consequences of his legal liability.

52.A term of imprisonment needs to call for.

53.In such circumstances, I consider: -

(a)  starting point of 9 months for both Charge 4 and 5, reduce to 6 months.

(b)  disqualified for a period of 12 months in both charges.

(c)  as to disqualification period in charge 4:-

S44(3)  stated that “the period of any disqualification under subsection (2)  shall be in addition to any other period of disqualification ordered under any other provision of this Ordinance.”

(d)  As such, disqualification period in Charge 4 is to run consecutively to other charges.

TOTALITY

54.Charge 1:  Imprisonment for 3 years and 10 months

Charge 2: Imprisonment for 10 months.

Disqualified from driving for 2 years and to attend a driving improvement course.

Charge 3: Imprisonment for 20 months.

Disqualified from driving for 3 years and to attend a driving improvement course.

The defendant only needs to take one driving improvement course at his own costs within the last 3 months of his disqualification period.

Charge 4: Imprisonment for 6 months.

Disqualified from driving for 12 months.

Charge 5: Imprisonment for 6 months.

Disqualified from driving for 3 years.

55.Sentence of Charges 2 to 5 are to run concurrently, with 10 months to run consecutively to Charge 1.  The total sentence is 4 years and 8 months.

56.Disqualification period for Charges 2, 3 and 5 are to run concurrently, with a total of 3 years.  While Charge 4 is to run consecutively to Charges 2, 3 and 5.  The total disqualification period is therefore 4 years.