HKSAR v. Chan Ka Ho

DCCC 462/2024

[2025] HKDC 749

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 462 OF 2024

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REASONS FOR SENTENCE

1.Mr Chan pleaded guilty before me to 5 charges on a Charge Sheet as follows.

2.Charge 1 is Dangerous Driving, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on 14 August 2023, at Pat Heung, Yuen Long, New Territories, in Hong Kong, drove a private car bearing registration mark YU6423 on a road dangerously.

3.Charge 2 is Driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on the same date, in Hong Kong, drove a motor vehicle, namely the same private car, on a road when he was not the holder of a valid driving licence in respect of a vehicle of the class of vehicle which he was driving.

4.Charge 3 is 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.  Particulars are that he, on the same date, in Hong Kong, used a motor vehicle, namely the same private 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.

5.Charge 4 is Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on the same date, at Pat Heung, Yuen Long, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 2.68 grammes of a solid containing 2.39 grammes of cocaine.

6.Charge 5 is Possession of dangerous drugs, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on the same date, at Pat Heung, Yuen Long, New Territories, in Hong Kong, had in his possession dangerous drugs, namely 0.65 gramme of a solid containing 0.52 gramme of ketamine, and 0.27 gramme of a crystalline solid containing 0.27 gramme of methamphetamine hydrochloride.

Facts admitted by Mr Chan

7.On 13 August 2023, at 2100 hours, uniformed officers including PW1 set up a police roadblock at Lamppost AD1690 near the Sinopec Gas Station at the left 1^st lane Eastbound of Kam Tin Road, Pat Heung, Yuen Long.

8.Two unmarked police vehicles were respectively parked at the exit of and inside the Gas Station for observation duty.

9.On 14 August 2023, at about 0109 hours, Mr Chan was driving a private car bearing registration number YU6423 (“the Vehicle”)  with a female passenger on board namely Choi along Kam Tin Road.  Suddenly, he steered left into the Gas Station via the exit against traffic flow.  When other uniformed officers ie PW3 and his team members alighted from the unmarked police vehicles trying to intercept the Vehicle, Mr Chan suddenly proceeded forward and steered the Vehicle to the right and left the Gas Station via the entrance, against the traffic flow.  PW3 had to step sideways in order to avoid being hit by the Vehicle.

10.The Vehicle got to around 10 metres from the roadblock sandwiching 2 other vehicles in between.  Here, the Vehicle attempted to reverse and flee from the roadblock but its rear hit the kerb near the pedestrian pavement.

11.Another uniformed officer PW2 approached the Vehicle, displayed his police baton and requested Mr Chan to stop.  When PW2 was about 2 metres ahead of the nearside front of the Vehicle, Mr Chan pressed down hard on the gas pedal and drove forward despite PW2’s verbal warning.  PW2 evaded the Vehicle which crashed into the central divider of Kam Tin Road.

12.PW2 approached the Vehicle.  Despite PW2’s verbal warnings, Mr Chan still maneuvered the gear stick and pressed on the pedal, attempting to leave the scene.  PW2 hit once on Mr Chan’s left upper arm with his extendable baton.

13.Mr Chan then left the Vehicle and started running.  During his flight, he threw a cigarette box (E1)  containing 9 transparent resealable plastic bags containing a total of 2.68 grammes of a solid containing 2.39 grammes of cocaine (E2)  into the flowerbed of the road.  Mr Chan was then subdued by PW1 and PW2.

14.Upon search of the Vehicle, another cigarette box (E3)  was found inside the driver’s armrest storage box.  E3 was found to contain:

(a)  One transparent resealable plastic bag containing 0.27 gramme of a crystalline solid containing 0.27 gramme of methamphetamine hydrochloride (a salt of methamphetamine)  (E4);

(b)  One transparent resealable plastic bag containing 0.62 gramme of a solid containing 0.52 gramme of ketamine (E5); and

(c)  One HK$10 banknote folded into a packet containing 0.03 gramme of a solid containing ketamine (E6)  and one plastic straw.

15.Mr Chan was arrested.  Cash of HK$720 was found from the left front pocket of Mr Chan’s trousers.  In addition, one Realme mobile phone and one red iPhone were found from the storage rack on the right hand side of the front passenger seat of the Vehicle.  A total of RMB500 Yuan was found at the storage grid behind the gear stick and coins of HK$50.5 were found at the storage grid in front of the gear stick.

16.Choi was sent to the A & E Department of Pok Oi Hospital.  She suffered fracture to the left 9^th rib.  She was discharged the next day and had 3 follow-up sessions.

17.During two cautioned records of interview, Mr Chan stated:

(a)  The Vehicle belonged to another male KW who used to live with him;

(b)  He just took the car key left behind by KW and started driving the Vehicle on 13 August 2023;

(c)  E2 was “coke” meaning cocaine while E4 to E6 were “ICE” and “perfume” (dangerous drugs);

(d)  He purchased dangerous drugs (E2, E4, E5 and E6)  from an unknown guy at a park inside Hop Yick Road in Yuen Long before picking Choi up; he paid around HK$1,000 for all the drugs and he intended to have them all for self-consumption;

(e)  He had been consuming “coke” only and did not understand why he was given 3 packets of “perfume” and “ICE”; thus, he put E2 and E4 to E6 in two cigarette boxes separately (E1 and E3);

(f)  He was about to consume E6 himself; however, he was called by Choi who asked him to pick her up, so he placed it in the Vehicle;

(g)  Prior to his arrest, he was driving the Vehicle and giving his friend Choi a ride;

(h)  He placed E3 inside the driver’s armrest storage box;

(i)  On discovering the roadblock ahead, he became scared and drove into the Gas Station; he attempted to reverse before reaching the roadblock but the Vehicle collided into something so he fled;

(j)  While fleeing, he threw E1 onto the flowerbed;

(k)  He knew his learner’s driving licence expired 2 to 3 years ago and he knew it was an offence to drive without a valid licence; and

(l)  He had not bought any 3^rd party risks insurance for the Vehicle and he knew it was an offence to use a vehicle without 3^rd party risks insurance.

18.Mr Chan now admits he was driving the Vehicle on the road dangerously in that:

(a)  He entered and subsequently left the Gas Station against the traffic flow on both occasions with a view to avoiding police inspection;

(b)  He left the Gas Station and caused the police officer to move sideways to prevent being hit by the Vehicle, in blatant disregard of the safety of the police officer;

(c)  He, when reaching the roadblock and being third in line, attempted to reverse the Vehicle and flee, also against traffic flow; and

(d)  He, after the Vehicle had rammed into the kerb and despite PW2’s verbal warning, still attempted to escape and pressed on the pedal to make the Vehicle move forward.

19.Mr Chan now admits that he possessed E2 for the purpose of unlawful trafficking.

Criminal record

20.Mr Chan has 3 previous convictions two of which are similar.  These two instances of trafficking in a dangerous drug were dealt with in June 2019 on the same occasion at a magistrates’ court.

21.Mr Chan has no road traffic conviction record.

Antecedents

22.Mr Chan is aged 25 (23 at the time of the offences); he completed F1 education.  He was a renovation worker.  He used to live with his parents and younger sister in public housing in Tuen Mun.

Mitigation

23.Mr Lam Shun Chiu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

24.Mr Chan is single.  Before his arrest, he worked as decoration or painting worker.  He was a habitual user of cocaine and only toyed with “ICE” and ketamine.

25.Mr Chan was holder of an expired learning driver licence and he had learnt how to drive.  At the request of Miss Choi, he decided to give her a ride to Kam Tin.  When he saw the road block ahead, he turned into the Gas Station via the exit and stopped.  Although he was driving against the traffic flow, there was no traffic into and out of the Gas Station at that time.

26.When the police approached the driver seat of the Vehicle from behind, Mr Chan started the Vehicle again and drove forward towards the entrance passing the unmarked police car near the entrance and returned to Kam Tin Road.

27.There was no evidence or suggestion that Mr Chan was driving at high speed or tried to force his way out.

28.After Mr Chan returned to Kam Tin Road, he queued up after other vehicles at the road block.  Then he tried to negotiate an about turn and in doing so, collided with the kerb and the central divider.  From the fact that no substantial injury was caused to Mr Chan and Miss Choi, it was submitted that the collision was not forceful.

29.It was submitted that this case of dangerous driving is far from the worst of its type.

30.Understandably, Mr Chan panicked but he still retained control of the Vehicle until negotiation of the about turn.  His culpability lied in his attempt to make the turn.

31.Mr Lam had no submissions to make on disqualification order.

32.On Charge 4, the quantity of cocaine involved is 2.39 grammes and it falls within the 2-5 years band.  According to arithmetical calculation, the starting point should be about 32.6 months.

33.Mr Chan is a habitual user of cocaine.  He would be caught in the user-turned-pusher vicious cycle.  The only similar convictions showed he was just a petty peddler.  He now appreciates that many of his problems arose from his drug abuse habit and immaturity.  He is determined to turn over a new leaf.

34.Mr Chan is not sure why he was given the “ICE” and ketamine.  He just assumed they were given to him as free samples to try.  There is no sentencing guideline for possession of dangerous drugs.

35.Since the case of HKSAR v Wong Wai Lun [2019] 5 HKLRD 349, the average daily dosage for abusers of “ICE” is better known.  In the present case, only 0.27 gramme of “ICE” was found; that is even less than the average daily dosage (0.3 gramme)  of an ordinary user.  It was submitted that no latent risk of distribution needs to be considered.  It was submitted that a starting point substantially below 12 months would be sufficient here.

36.It was submitted that the sentence for Charges 1 to 3 should be made concurrent.  The court is urged to consider totality for all of the charges and to be as lenient as possible.

37.When asked about Mr Chan’s role and culpability regarding the drug trafficking offence, Mr Lam submitted that although an insignificant proportion of the cocaine was intended for self-consumption, the bulk of it was intended to be sold or conveyed to others.  Later, Mr Lam added that Mr Chan had the intention that the cocaine might be re-sold to others.

Sentence

38.I have viewed the two sets of video footage taken by the Gas Station (referred to in para 12 of the Revised Summary of Facts)  and the one set of video footage taken by the carcam of the vehicle behind (referred to in para 13 of the Revised Summary of Facts[1].

39.It is clear from the video that Mr Chan was driving like the God of Vehicles and had total disregard of the other users of the road.  It was sheer luck that no police officers were injured in the process.  However, I also bear in mind the duration of dangerous driving was not long.

40.For Charge 1 of Dangerous driving, the maximum penalty is 3 years’ imprisonment and a fine of $25,000.

41.In this case, Mr Chan’s dangerous driving was serious because there were:

(a)  Breaches of traffic regulation;

(b)  Evasion of police inspection;

(c)  Failing to stop when called upon by police; and

(d)  Causing of a broken rib to a passenger in his attempt to flee from the police.

42.In the premises, a term of imprisonment is the only realistic sentencing option.  Having considered all the circumstances of the offence, I adopt a starting point of 27 months’ imprisonment in the case of Mr Chan.

43.Also under Charge 1, I do not see any special reasons exist such as to dissuade me from imposing the otherwise mandatory disqualification order on Mr Chan.

44.For Charge 2 of Driving without licence, the maximum penalty for first conviction is 3 months’ imprisonment and a fine of $5,000.  In the case of Mr Chan, I adopt a starting point of 6 weeks’ imprisonment.

45.For Charge 3 of Using motor vehicle without third party insurance, the maximum penalty is 12 months’ imprisonment and a fine of $10,000.  In the case of Mr Chan, I adopt a starting point of 4 ½ months’ imprisonment.

46.Also under Charge 3, I do not see any special reasons exist such as to dissuade me from imposing the otherwise mandatory disqualification order on Mr Chan.

47.For Charge 4 of Trafficking in a dangerous drug, according to the traditional sentencing guidelines for trafficking in up to 10 grammes of cocaine, the sentence would be 2 to 5 years’ imprisonment.  The recent case of HKSAR v Huang Ruifang, CACC 106/2022, [2025] HKCA 234, has not made any change to this sentencing band.

48.I have borne in mind the 6-step approach as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 when sentencing Mr Chan for trafficking in a dangerous drug.

49.As submitted by Mr Lam, Mr Chan was caught in the drug user-turned-pusher vicious cycle; further, Mr Chan had been a petty peddler of drug previously.  It was submitted that, on this occasion, Mr Chan owned the drug (so by implication he was not a courier or storekeeper working for others)  and, save for an insignificant proportion of it, he had the intention to re-sell or convey the drug to others.  For these reasons, I am of the considered view that Mr Chan was an actual trafficker of drug.  As such, the arithmetical starting point of about 32.6 months’ imprisonment which is more suitable for couriers and storekeepers will need to be uplifted to take this into account.

50.I shall take a starting point of 36 months’ imprisonment in the case of Mr Chan.

51.Mr Chan has two similar convictions in 2019 which are almost 6 years ago (or 4 years before the date of the present office).  As an act of mercy, I will not hold them against Mr Chan when sentencing him.

52.For Charge 5 of Possession of dangerous drugs, because of the small amounts of the two types of drugs involved, I adopt 6 months’ imprisonment as the starting point.  There is no need to enhance the sentence on the basis of latent risk factor because of the small quantities.

53.Mr Chan pleaded guilty in good time earning for himself the customary 1/3 sentencing discount.  I can see no other mitigating factors of weight to justify another sentence reduction.

54.In determining the starting points for Charges 2 and 3, I have not taken into account the serious circumstances of the dangerous driving offence for fear of double-counting.  For this reason, in sentencing Mr Chan for the overall culpability of the three driving offences, I will, where appropriate, make their associated sentences partially consecutive to one another.

55.The two types of drugs subject of the simple possession charge are of a different kind to the cocaine subject of the trafficking charge.  In order not to overload the sentences for the drug offences, I will make the sentences largely but not wholly concurrent.

56.The drug offences as a group are completely separate and distinct from the driving offences.  Their respective sentences ought to run wholly consecutively to each other as a matter of principle subject only to totality which incidentally is also the last step in the Herry Jane Yusuph sentencing approach.

57.I will bear in mind and apply the totality principle before reaching the final total sentence for Mr Chan.

(Mr Chan, please stand)

58.For Charge 1, the sentence is 18 months’ imprisonment.

59.For Charge 2, the sentence is 4 weeks’ imprisonment.

60.For Charge 3, the sentence is 3 months’ imprisonment.

61.For Charge 4, the sentence is 24 months’ imprisonment.

62.For Charge 5, the sentence is 4 months’ imprisonment.

63.I order the sentences on Charges 2 and 3 to run concurrently with one another; out of these sentences one month is to run consecutively to the sentence on Charge 1, making an aggregate sentence (Group A sentence)  of 19 months’ imprisonment for the driving offences.

64.I order one month of the sentence on Charge 5 to run consecutively to the sentence on Charge 4, making an aggregate sentence (Group B sentence)  of 25 months’ imprisonment for the drug offences.

65.A simple addition of the two groups of sentences would make sense in principle because they belong to different categories of offences and one is not concomitant to the other.

66.However, the total sentence thus arrived at would be too harsh and would not be just, fair and balanced in all the circumstances of the offences and the offender.

67.By applying the totality principle, I order 7 months of the Group A sentence to run consecutively to the Group B sentence, making a final total sentence of 32 months’ imprisonment.

68.On disqualification, under Charge 1, I order Mr Chan to be disqualified from holding or obtaining any driving licence for a period 12 months.

69.Further, under Charge 3, I order Mr Chan to be disqualified from holding or obtaining any driving licence for a period of 12 months from the date of conviction.

70.The two disqualification orders are to run concurrently.