HKSAR v. John Ho Yin

DCCC 139/2024

[2025] HKDC 501

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 139 OF 2024

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REASONS FOR SENTENCE

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The defendant faces a charge of "Obstructing a public officer[1]" (Charge 1); a charge of "Dangerous driving" (Charge 2); a charge of "Possession of a dangerous drug" (Charge 3); a charge of "Trafficking in dangerous drugs" (Charge 4); a charge of "Possession of Part 1 Poisons" (Charge 5); and a charge of "Failing to provide specimen of blood or urine" (Charge 6). He pleaded guilty to Charges 1, 2, 3, 5 and 6. Regarding Charge 4, he pleaded guilty to "Possession", which was accepted by the prosecution.

Summary of Facts

Charge 1

2.About 6:00 p.m. on 24 August 2023, PC 17167 (PW1)  saw a private car LD3163 ("the Car")  parked at On Wan Road in Hung Hom.  There were 2 persons in the front passenger seat and the rear middle passenger seat respectively.  When PW1 approached the Car to make enquiries, the defendant boarded the Car and took the driver's seat.  PW1 asked him to produce his driver's licence.  The defendant ignored PW1 and drove the Car towards Baker Street.

Charge 2

3.PW1 pursued the Car riding his police motorcycle.  The defendant drove at 60 to 70 km/h on a stretch of road which imposed a speed limit of 50 km/h.  He also disobeyed a total of 3 red lights.

4.The Car eventually stopped at the junction between Baker Street and Walker Road. The defendant and the 2 passengers immediately abandoned the Car and fled.  PW1 managed to subdue the defendant.

Charges 3 to 5

5.Upon search, a $100 banknote folded into a packet which contained 0.14 gramme of a solid containing 0.10 gramme of cocaine was found in the defendant's left front trouser pocket. Under caution, the defendant told PW1 that the "Coke" was for his own consumption.

6.PW1 escorted the defendant back to the Car.  The following items were found in the rear storage pocket of the front passenger seat :-

(i)  wrapped in piece of tissue, 5 resealable plastic bags which contained a total of 1.47 grammes of a solid containing 1.05 grammes of cocaine;

(ii)  a white plastic bag with cartoon prints containing 2 resealable plastic bags each containing 1 cartridge which contained a total of 0.01 gramme of a liquid containing etomidate;

(iii)  a resealable plastic bag with a red seal containing 5 resealable plastic bags with "GODDESS SECRET" prints which contained a total of 2.12 grammes of a solid containing 1.65 grammes of 3,4-methylenedioxymethamphetamine; and 1 resealable plastic bag which contained 0.14 gramme of a solid containing 0.12 gramme of cocaine; and

(iv)  1 cartridge which contained 0.11 gramme of a liquid containing nicotine.

7.Under caution, the defendant told PW1 that the "Coke", cannabis oil and "happy powder" were for his own consumption.

Charge 6

8.The defendant's Rapid Oral Fluid Test showed cocaine positive.  At 7:40 p.m. on the same day, PW1 requested the defendant to provide blood specimen for drug analysis.  Despite having been warned that failure to give consent for a blood test may render him liable to criminal prosecution, the defendant still refused to do so.

Admissions

9.In his video recorded interview, the defendant admitted that the $100 banknote was for inhaling cocaine and the "Coke" was for his own consumption.  The drugs seized from the Car were also for his own consumption.  He drove the Car away when he was asked to produce his driver's licence because he was worried about revealing his "Wanted" status.

Mitigation & Sentence

10.The defendant is 26 and single.  He has 4 conviction records involving 6 offences, 2 of which are "simple possession".  Regarding his traffic record, the defendant obtained his driver's licence in May 2018.  He received 14 fixed penalty tickets (12 of which were for "Speeding")  and has 1 conviction for "Careless driving", 1 conviction for "Failing to comply with traffic signals" and 1 conviction for "Speeding[2]".  I am aware that 2 of his fixed penalty tickets post-dated the present case.

11.Defence counsel Mr. Ng informed me that the defendant is educated up to Form 1.  He was a delivery worker earning about $20,000 per month.  He has a son (aged 3)  with his ex-girlfriend.  His son is primarily looked after by the ex-girlfriend.  The defendant resides with his parents and is the sole bread winner of his family. In mitigation, Mr. Ng submitted that the defendant is a long-term cocaine user.  He had just purchased a 3-day supply of cocaine on the day of his arrest.  On that day, the "drug seller" also offered him some "happy powder" and some "astro oil" (namely the 3,4-methylenedioxymethamphetamine and the etomidate).  The defendant has never tied them before.  He purchased them for fun and out of curiosity.  In view of Charges 3 and 4, I adjourned the sentence pending a DATC Report.

12.The defendant's DATC Report indicated that since he has been remanded in jail custody for over a year, he is no longer a drug dependant.

13.Regarding Charge 1, the maximum penalty is a Level 1 fine ($2,000)  and imprisonment for 6 months.  I adopt a starting point of 6 weeks' imprisonment.  With the timely guilty plea, I sentence the defendant to 4 weeks' imprisonment for this charge.

14.Regarding Charge 2, the defendant was speeding (though not extremely excessive)  and jumped a total of 3 red lights.  He drove in such a dangerous way in order to avoid apprehension by the Police.  His traffic record is also below average.  Fortunately, no police officers or passers-by were injured and I take judicial notice that the distance of 3 red lights within Hung Hom was relatively short[3]. I have considered the Court of Appeal's decision in SJ v Ko Wai Kit, Paul [2001] 3 HKLRD 751.  An immediate custodial sentence is required.  Bearing in mind that the maximum prison term for this offence is 3 years, I adopt a starting point of 15 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 10 months' imprisonment for this charge.

15.Regarding Charge 3, the defendant had 0.10 gramme of cocaine in his trouser pocket. I adopt a starting point of 6 months' imprisonment. With the timely guilty plea, I sentence the defendant to 4 months' imprisonment for this charge.

16.Regarding Charge 4, a total of 1.17 grammes of cocaine (contained in 6 packets)  and a total of 1.65 grammes of 3,4-methylenedioxymethamphetamine (contained in 5 packets)  were found in the Car. I accept the possibility that these drugs were for the defendant's self-consumption and need not be concerned with any latent risk of trafficking owing to their quantities. I adopt a starting point of 15 months' imprisonment. With the timely guilty plea, I sentence the defendant to 10 months' imprisonment for this charge.

17.Regarding Charge 5, very small amount of liquids containing etomidate and nicotine were also found in the Car (together with the dangerous drugs). I adopt a starting point of 3 weeks' imprisonment. With the timely guilty plea, I sentence the defendant to 2 weeks' imprisonment for this charge.

18.Regarding Charge 6, the maximum penalty is a Level 4 fine ($25,000)  and imprisonment for 3 years. Fung J in HKSAR v Lai King Lun HCMA 889/2007 (English translation)  held :-

"The purpose of Section 39B [of Cap.374] is to assist the execution of Section 39A, and should not be viewed as a lesser option. The failure to provide a specimen of breath not only hampers police investigation of the accident and obstructs the sanction of the provisions, it also affects the civil claims. Due to the seriousness of the offence, the penalty must have sufficient deterrent effect and reflect the gravity of the charge, so that no one can avoid the more serious consequences by deliberately failing to provide a specimen of breath. The penalty may depend on the seriousness of the offence as disclosed in the facts, including the overall circumstances of the accident, the behaviour or condition of the driver, whether anyone is injured, and the degree of the damage, etc."

The same reasoning applies squarely to the offence of "Failing to provide a specimen of blood or urine" because the spirit of section 39P of Cap.374 is to assist the detection and prosecution of "drug driving" offences. The defendant in the present case was found cocaine positive after a Rapid Oral Fluid Test. His refusal to provide a specimen of his blood clearly jeopardized the police investigation of any "drug driving" offence. I adopt a starting point 9 weeks' imprisonment[4]. With the timely guilty plea, I sentence the defendant to 6 weeks' imprisonment for this charge.

Overall sentence

19.Charge 2 is a continuation of Charge 1. I order their sentences to be served concurrently. The quantities of the illegal substances involved in Charges 3 and 5 are minimal. I order the sentences in Charges 3 to 5 to be served concurrently as well.

20.The main criminalities in the present case are "dangerous driving", "possession of dangerous drugs" and "failing to provide blood sample". Bearing in mind the totality principle, I consider a global starting point of 27 months' imprisonment appropriate and just for these 3 types of criminal acts. With the timely guilty pleas, the overall sentence becomes 18 months. Hence, I order the sentences to run in the following manner :-

(i)  Charges 1 and 2 concurrent;

(ii)  Charges 3 to 5 concurrent; 7 months in Charges 1 and 2 consecutive to Charges 3 to 5; and

(iii)  1 month in Charge 6 consecutive to Charges 1 to 5.

Other orders

21.For Charge 6, a disqualification period of not less than 5 years in the case of a 1^st conviction is required[5]. I do not see any special reason not to make such an order or to disqualify the defendant from driving for a shorter period. Thus, I make a disqualification order against the defendant for a period of 5 years.

22.For Charge 2, a disqualification order is also inevitable. I have borne in mind the comments made by the Court of Appeal generally on disqualification orders in SJ v Hung Ling Kwok [2010] 4 HKLRD 365 and HKSAR v Chan Kim Ching CACC 69/2014[6]. I make a disqualification order against the defendant for a period of 12 months[7] (and the disqualification period will start to run from the date of sentencing[8]). I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[9].In my view, it is unnecessary to order the defendant to re-take his driving licence test.