HKSAR v. Ho Lik Wun and Another

DCCC 609/2024

[2025] HKDC 2190

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 609 OF 2024

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REASONS FOR SENTENCE

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The plea

1.There are two defendants in this case, D1 and D2. D1 pleaded guilty to Charges 1 to 4. D2 pleaded guilty to Charge 5 but denied Charge 1. D2 was acquitted from Charge 1 after trial. This reason deals with the sentence of D1 on Charges 1 to 4 and D2 on Charge 5. 

Admitted facts

2.On 9^th July 2023, at 9:45 pm, PC 19608 (PW1)  and other police officers were conducting a snap check at Kam Tin Road. The relevant section of the road was a two-lane one-way road and there was a Sinopec gas station on the nearside of the road in front of the snap check. SGT 5875 and PW1 were assigned to observe the traffic from their unmarked police vehicle AM 8543 parked inside Sinopec gas station at No. 17 Kam Tin Road, Kam Tin, New Territories, near lamppost AD 1632, the entrance of the gas station. Meanwhile, SSGT WONG K M and PC 17856 (PW2)  were assigned to observe the traffic from the unmarked police vehicle AM 8103 parked near lamppost AD 1640, the exit of the Sinopec gas station.

3.At 11:44 pm, PW1 observed a private vehicle bearing registration mark XD 8517 (the Vehicle)  travelling slowly on the first left lane of Kam Tin Road towards the direction of Pak Heung. The Vehicle did not display the “L” plate at the time. The Vehicle turned left into the Sinopec gas station to refill gas. At this junction, PW1 was about 40 meters away from the Vehicle and PW1 observed D2 in a white T-shirt alight from the front passenger seat and wandered around the Vehicle. Shortly, D1 in a black T-shirt alighted the Vehicle from the driver seat, while D2 boarded the driver seat of the Vehicle.

4.At 11:48 pm, the Vehicle left the gas station without D1.  Feeling suspicious, PW1 and SGT 5875 drove their police vehicle to intercept D1. When the police vehicle was about 10 meters from D1 who was facing towards PW1 and SGT 5875, PW1 observed that D1 was holding a black sling bag in his left hand (the black sling bag). PW1 alighted the police vehicle from the driver's seat and saw D1 walking towards one of the gas pumps. PW1 and D1 was about 5 meters apart and PW1 observed D1 bending over his upper body. As such, PW1 intercepted D1 and D1 immediately fled towards Kam Tin Road. PW1 and SGT 5875 subdued D1 shortly after D1 lost his balance and fell on the ground. Upon police enquiry, it was found that D1 was only a holder of a learner's driving licence.

5.Meanwhile, when the Vehicle was being driven away by D2 from the gas station, PW2 intercepted the Vehicle. The Vehicle did not display the “P” plates at the time. Upon police enquiry, it was discovered that D2 was only a holder of a probationary driving licence. Upon PW1’s enquiry, D2 was found not to be a driving instructor.

6.On 10^th July 2023, at 12:02 am, PW1 realised that the black sling bag was missing from D1. At 12:06 am, SGT 2137 was able to locate it near the gas pump, where D1 was seen bending over his body suspiciously.

7.The Government Chemist confirmed the narcotic content seized were a total of 7.22 grammes of ketamine, 11.29 grammes of cocaine, 16.34 grammes of cannabis in herbal form, and traces of a plant material containing tetrahydrocannabinol, being a tetrahydro derivative of cannabinol. The total street value of the drugs was HK$21,099.64.

Arrest of D1 and cautioned statements

8.At 1:28 am, PW1 arrested D1 for the charges against him. HK$5,143.5 and 2 mobile phones were seized from D1. D1's attire at the time was also seized by the police. In a video recorded interview on 10^th July 2024, between 5:30 pm and 5:49 pm, under caution, D1 inter alia admitted that the black sling bag and the drugs inside belonged to him.

9.Certificate of driving licence particulars provided by the Transport Department regarding D1 and D2 revealed that at the material time D1 and D2 were a holder of a learner's driving licence and a probationary driving licence respectively.

The offences

10.At the material time,

D1 at No. 17 Kam Tin Road, Kam Tin, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely traces of a plant material containing tetrahydrocannabinol, 7.22 grammes of ketamine and 11.29 grammes of cocaine and 16.34 grammes of cannabis in herbal form (1^st Charge).

D1, in Hong Kong, being a learner driver, drove a motor vehicle, namely the Vehicle, otherwise than such times and in accordance with such conditions as specified in writing by the Commissioner at the time the learner's driving licence was issued to the said D1 (2^nd Charge).

D1, in Hong Kong, being a learner driver, drove a motor vehicle, namely the Vehicle, of the class specified in the learner's driving licence when the said D1 was not accompanied by a driving instructor who was the holder of a valid driving instructor's licence which entitled him to give driving instruction in respect of that class of motor vehicle (3^rd Charge).

D1, in Hong Kong, being a learner driver, drove a motor vehicle, namely the Vehicle, without displaying a plate, namely a plate to be displayed by a learner driver, in accordance with the Third Schedule to the Road Traffic (Driving Licences)  Regulations (4^th Charge).

11.At the material time, D2, in Hong Kong, being the holder of a probationary driving licence, drove a motor vehicle, namely the Vehicle, on a road without plates securely fixed on the said vehicle in accordance with regulation 12K (1)(a)  and (3)  of the Road Traffic (Driving Licences)  Regulations made under the Road Traffic Ordinance (Cap. 374)  (5^th Charge).

Mitigation

12.D1 is now 22 years of age (aged 19 at the time of the offence). He has a cohabitee with a baby daughter. He is locally born and received education up to Secondary 3 level. He lives with his parents and his own family. He has a total of 7 previous convictions in 2020, including two convictions of driving without a licence, in which he was among other offence, sentenced to training center and was disqualified from driving for 18 months.  

13.In mitigation, counsel for D1 addressed me that I have the discretion to order D1 be disqualified from driving (or from holding any driving licence): s.69(1), Cap 374 Road Traffic Ordinance. That said, she urged me not to order disqualification because there is no evidence that D1 drove carelessly or dangerously at the material time. Regarding trafficking in dangerous drugs, Ms So referred me to relevant cases and how the Court should calculate the sentence. Ms So suggested to base the sentence more on cocaine (11.29g)  than ketamine due to the relatively smaller quantity of ketamine (7.22g). This would arrive at a starting point of slightly higher than 5 years. 

14.D2 is now 28 years of age (aged 26 at the time of the offence). He is single. From 2019 to 2021, D2 has 5 previous convictions and one traffic conviction regarding failure to give information on demand. 

Sentencing consideration

D1’s sentence

15.Regarding possible driving disqualification order on Charges 2 to 4, one must not ignore that D1, who was not a qualified driver, repeatedly drove without a licence, he posed a higher risk to the road users, not only he drove with voluminous drugs this time, his repeated offence enhanced the risk to other road users who might not obtain third party insurance cover if accident occurs. He blatantly defied law and order by repeatedly drove without a licence. A driving disqualification order, instead of a nominal fine, is reasonable and proportional to his past and present driving connected misbehavior. 

16.The next question is when disqualification order should start. A recent Court of Appeal case seems to resolve long uncertainties: HKSAR v Wong Kwok Leung [2025] HKCA 450. In gist, for disqualification order under s.69(1)(a), Cap 374, i.e. any offence under this Ordinance in connection with the driving of a motor vehicle (applicable to this case), it should run from the date of conviction/sentence. To make it meaningful, the length of disqualification order is usually longer than the substantive sentence (may or may not take into account the possible remission for good behavior). For disqualification order under s.69A, Cap 374, such as dangerous driving, drink driving, failing to stop/report, crossing double lines, speeding etc under Cap 375 Schedule 10, it should run until the person finishes serving the term of imprisonment or detention. Charges 2 to 4 do not fall within Cap 375 Schedule 10, hence any disqualification order should start from the date of sentence.  

17.In respect of trafficking in cocaine and ketamine, the Court of Appeal has laid down clear sentencing guidelines. According to R v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, for trafficking up to 10 grammes of cocaine, the sentence is 2 to 5 years’ imprisonment. 11.29 gramme of cocaine may attract about 61 months’ imprisonment. On the other hand, according to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for trafficking over 1 gramme to 10 grammes of ketamine, the sentence is 2 to 4 years’ imprisonment. 7.22 grammes of ketamine may attract 41 months’ imprisonment. 16.34 grammes of herbal cannabis can be considered trivial and I do not count it in sentencing: AG v Tuen Shui-ming [1995] 2 HKC 798.

18.As the charge is concerned with three different types of dangerous drugs with different sentencing guidelines, the court will follow the methodology as set out in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146. Considered all the circumstances, the court will adopt the combined approach.

19.On a pure mathematical calculation, the starting point for trafficking of 11.29 grammes of cocaine should be 61 months’ imprisonment. That said, trafficking of 7.22 grammes of ketamine may result in 41 months’ imprisonment, which is equivalent to sentence of 5 grammes of cocaine. Adding 11.29 and 5 grammes of cocaine together (16.29 grammes), the starting point for combined approach of Charge 1 should be 66 months’ imprisonment. After 1/3 deduction for his early guilty plea, D1 is sentenced to 44 months’ imprisonment.   

20.The maximum sentence for Charges 2 to 4 is, upon first conviction, a fine of level one (HK$2,000)  and 3 months’ imprisonment, and upon second conviction, a fine of level two (HK$5,000)  and 6 months’ imprisonment. D1 has two similar convictions in September and November 2020. I adopt 6 weeks’ imprisonment for each of Charges 2 to 4. After 1/3 deduction for his early guilty plea, D1 is sentenced to 4 weeks’ imprisonment for Charges 2 to 4, concurrent with each other and also concurrent with Charge 1, in order to avoid sentence being excessive. 

21.Regarding disqualification order, as said before, D1 should be disqualified and kept out of the road. He is now sentenced to 44 months’ imprisonment, deducting possible sentence remission, he has to serve 30 months. On record, D1 has been detained for about 11 months. As a result, regarding Charges 2 to 4, I impose a driving disqualification order for a period of 2 years from the date of sentence, in other words, he is disqualified from holding or obtaining a driving licence.

D2’s sentence

22.The maximum sentence for Charge 5 is, upon first conviction, a fine of level one (HK$2,000)  and 3 months’ imprisonment. D2 is a qualified driver but he failed to display “P” plate. He has no similar conviction. Usual sentence should be a fine and therefore, D2 should pay the fine HK$1,000, which shall be paid out of the bail money.