HKSAR v. Tsang Ka Kit

DCCC 765/2022

[2023] HKDC 784

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 765 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant is convicted on his own plea of 4 counts of Breach of Condition of Learner’s Driving Licence and one count of Trafficking in a Dangerous Drug. The defendant agreed to the brief facts and was convicted of all charges.

Facts

2.The facts admitted by the defendant reveal that the defendant was spotted by PC 13475 (“PW1”)  whilst on anti-narcotics patrol on 25 March 2022 at around 01:40 hours.  The defendant was driving a vehicle bearing the registration number XD 2420 (“the Vehicle”). Upon interception and initial enquiries, the defendant stated that he did not possess a driving licence. 

3.Upon a search of the vehicle, a resealable plastic bag containing 19 packets wrapped with plastic wrappings was found inside the storage compartment near the gear stick. HK$2,200 cash was found hidden underneath the carpet of the driver’s seat.  The defendant was arrested and under caution he admitted that the seized packets were narcotics known as “coke”, and that he was paid HK$1,000 for transporting the narcotics.  He also admitted that he did not possess a driving licence.

4.Contents of the 19 packets seized were later certified by the Government Chemist to be 2.88 grammes of a solid containing 2.55 grammes of cocaine.  The estimated street value of the narcotics is HK$4,285.44.

5.Further investigation revealed that the Defendant held a learner’s driving licence.  At the time of the offence, “L” plate was not displayed on the Vehicle.  The Vehicle did not have a handbrake readily accessible to a driving instructor, and did not have an effective system of remote braking control under the driving instructor’s manual control.

6.In a subsequent video recorded interview, the Defendant stated that the seized drugs contained cocaine supplied by an unknown person.  Normally he would receive calls from an anonymous person who would inform him of the location of collection.  On the day of the offence he collected the drugs packaged in its present form in Shatin.  He sold some drugs at Ma On Shan and was intercepted by police officers while waiting for further instruction.  HK$800 of the HK$2,200 found underneath the drivers’ seat were proceeds of sale.  He would receive HK$1,000 as reward for selling drugs. 

Previous convictions

7.The defendant has 2 previous criminal convictions including one count of Trafficking in a Dangerous Drug for which he was sentenced a Training Centre Detention Order in 2014, and one count criminal damage for which he was sentenced to a HK$500 fine in 2014.

Personal Background and Mitigation

8.The defendant was born in the People’s Republic of China and is 24 years of age.  He completed Form 3 education in Hong Kong and worked as a casual worker at a construction site.  The defendant lives with his parents, younger sister and his 6-year old daughter. 

9.In mitigation, the defence cited mitigating factors including the defendant’s timely plea, his cooperation with police investigation during his video recorded interview and his frank admissions. 

10.Mitigation letters written by the defendant and his mother were submitted for the court’s consideration.  In his letter, the defendant expressed his remorse.  He planned to return to work upon his release to provide for his family and to take care of his child.  The defendant’s mother asked the court to consider the family’s financial hardship caused by the defendant’s incarceration and asked for leniency in sentencing.

Sentence

11.In sentencing, I have considered the nature and quantity of the dangerous drugs, the mitigation advanced by Defence counsel, contents of the mitigation letters, authorities and Reasons for sentence submitted by the defence.

12.The trafficking of a dangerous drug is a very serious offence.  The Court of Appeal laid down the tariffs for trafficking in cocaine namely a term of imprisonment of between 2 to 5 years for trafficking up to 10 grammes of the drug (see The Queen v Lau Tak-ming[1]). In the instant case, the cocaine involved is 2.55 grammes.  For this quantity I would consider a starting point of 33 months.  The Defendant is entitled to one-third deduction for his guilty plea, resulting in a sentence of 22 months’ imprisonment.  Although the defendant has one trafficking in a dangerous drug conviction in 2014, he was only 14 years old at the time of the offence.  I do not consider his previous record to be a ground for enhancement of sentence.

13.Charges 1 to 4 involved the contravention of provisions regulating the supervision of drivers holding a learner’s licence.  Such regulations are imposed for the safety of the driver and of other road users.  The defendant drove the vehicle on the road in the absence of supervision, and failed to display a learner’s “L” plate warning other road users of his learner’s status.  These are serious circumstances that could pose great danger to other road users.

14.There are no sentencing guidelines for the breach of conditions of a learner’s driving licence as set out in section 30 of the Road Traffic (Driving Licenses)  Regulations. The court must consider the distinct circumstances of each case.  I have considered the Reasons for sentence submitted by the defence.  For each of the Charges 1, 2, 3 and 4, I adopt a starting point of 4.5 weeks’ imprisonment and reduce it to 3 weeks’ imprisonment to reflect a one-third deduction for his guilty plea. 

15.I consider the driving offences of Charges 1 to 4 to be distinct from the offence involving the trafficking of dangerous drugs.  Having considered the totality principle, I order that:-

(a)  3 weeks’ imprisonment term of Charges 1, 2, 3 and 4 to be served concurrently; and

(b)  2 weeks’ imprisonment term of Charge 1 to run consecutively with the 22 months’ imprisonment term of Charge 5, all other imprisonment sentences to run concurrently, resulting in a total of 22 months and 2 weeks’ imprisonment.