HKSAR v. Chan Chin Pang

DCCC434/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 434 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to four charges. They are the charges on the charge sheet listed at 1, 2, 4 and 6. At the request of the prosecution, Charge 3 was left was on the court file, and the prosecution accepted the not-guilty plea to Charge 5.

2.As far as the 1st charge is concerned, that was a charge of dangerous driving on 24 January 2010; the second offence was a charge of driving a motor vehicle under the influence of drugs on the same occasion; the 4th charge was using the motor vehicle in question without insurance; and the 6th charge was a charge in trafficking in dangerous drugs. The drugs were 5.76 grammes of pure ketamine and 2.06 grammes of cocaine.

3.The facts admitted by the defendant disclose that at about 11.55 pm on 24 January 2010, an officer (PW1) was on patrol on his motorcycle along the Container Port Road South. He saw a private vehicle in which the defendant was on board, and it was stopped on double lines on the opposite side of the road. The defendant was alone in the vehicle. The officer approached him to make inquiries when all of a sudden the defendant drove off at speed of some 70 to 80 kilometres per hour towards a roundabout and crossed over that roundabout to the Container Port Road South against the direction of traffic, and he did so in a dangerous, unlawful manner.

4.The officer informed his consoles to what was happening. When the defendant reached the next roundabout, he then drove at a high speed towards Ngong Shuen Chau Barracks in Chi Ngong Road on the right side of the road, and when he reached the barracks, his vehicle hit the iron fence on the roadside. He then drove along Chi Ngong Road until he lost control and hit the railing on the side of the road. Due to the huge impact, the left front and left rear tyres of the vehicle were flattened.

5.Notwithstanding this, the defendant kept driving his vehicle at high speed in a zigzag pattern towards a roundabout, Roundabout No. 8, and back up to the Container Port Road on the wrong side of the road. It was at this stage that a police saloon car arrived and chased the defendant’s vehicle. Well, that police car was driven by a sergeant. I refer to him as PW2.

6.The defendant’s vehicle eventually reached Roundabout No. 7, turned into Ngong Shung Road, and reaching the outside of West Kowloon Sewage Pumping Station, the defendant stopped. The police motorcar and police motorcycle drew up to the rear of the defendant’s vehicle. All of a sudden, the defendant reversed his motorcar and hit one of the police vehicles directly. This caused the vehicle in question to impact with a traffic island.

7.The officers alighted from their respective vehicles and they asked the defendant to get out of the motorcar. He ignored their demands. He remained on board the vehicle. He was then seen to hold a lighter and a metal can in both his hands. He became highly emotional and screamed loudly at the officers, telling them not to come close to him. He tried to drive the vehicle away but failed. He then locked himself in the vehicle. He lit some paper with a lighter, resulting in part of the cabin catching fire. One of the officers broke the windows with a view to rescuing the defendant but failed, and a report was made over to police console.

8.A senior station officer from the Fire Service Department responded. As the cabin started to burn, the police officers broke open the window of the vehicle with their batons and arrested the defendant, and fire officers put out the fire. The lighter, some burnt cloth and the metal can were recovered from the vehicle.

9.Inside the vehicle, the officers noticed a plastic bag, and that was found to contain the ketamine, the subject of the charge. Another plastic bag was found containing the cocaine that was found at the nearside of the front door of the vehicle.

10.The defendant remained silent under caution, and he was sent to Princess Margaret Hospital for examination. At the hospital, a body search was conducted, and on searching, five plastic bags of cocaine were found in the right front trouser pocket of the defendant. He was formally arrested, and under caution, he remained silent.

11.An officer seized a plastic bag containing ketamine and the metal can and an empty whisky bottle and a burnt coat from the driver seat of the defendant’s vehicle. On the driver seat, the officers also located two mobile phones, an electronic scale, plastic bag containing 16 empty plastic bags which were of the same size as those plastic bags containing the suspected ketamine and cocaine. Three lighters and some burnt newspapers were also found.

12.One of the officers, the first officer who was on motorcycle duty, was treated for sustained swelling and tenderness of his abductor and flexor tendons of his right wrist. He was granted sick leave for one week. The other officer was treated for neck injuries causing difficulties in the movement of his neck and injuries to his right index finger. A soft neck collar was provided to that officer to assist with his neck injury problem and he was also given a week’s sick leave.

13.Under caution, the defendant admitted that he had taken cocaine and ketamine whilst on board his vehicle, admitted that the metal can found by the police contained gasoline. He said that he was taking dangerous drugs when the officer approached him, and he drove away once the officer did approach him. He claimed at the time that the ketamine and cocaine were purchased from a man called Ah Chan and they were for his own consumption. He said that the electronic scales were used to measure the weight of the dangerous drugs. He said he was the registered owner of the vehicle. He said he did not know if it was insured or not.

14.The drugs were forensically examined and found to be the drugs referred to in the charge. The police vehicle was damaged. The cost of repair to that was $68,660. The urine of the defendant was obtained immediately after the collision and examined and analysed and it was found to contain ketamine metabolite and cocaine metabolite.

15.The defendant has previous convictions recorded against him, and he has three matters. On 30 October 2007, for dangerous driving, he was fined $7,000 and disqualified from driving for 15 months; on 15 February 2008, for possession of dangerous drugs, he was fined $6,000; and in February of 2008, for assault occasioning actual bodily harm, he was fined $1,500.

16.I was told in mitigation on the last occasion that the defendant is 28 years of age. He is single and cohabits with his girlfriend. I have been told that he left school at 15. Prior to that, he lived with his family. I am told that they invested in the property market and they lost substantially in 1997 when the property market collapsed, and thereafter, he went to live with relatives. He worked as an air-conditioning worker. I was told that his father died in 2008 and that caused him to be depressed. His mother is still alive and he keeps in touch with his mother, I was told.

17.A letter was placed before the court written by the defendant expressing his remorse. He stated that whilst he has been in prison, he has been visited by his mother and girlfriend and has appreciated their concern for him. He said that he found the sudden death of his father who died of a heart attack, he found that a very traumatic experience and asked for a chance.

18.It was also urged upon me in mitigation that part of the drugs which were found upon him were for his own consumption. Other than the slight injuries sustained by the officers, nobody else was injured and there were no serious injuries sustained. The road where the incident occurred was a very quiet road, and the defendant was very depressed at the time the offence was committed.

19.I adjourned the case on the last occasion for psychological reports and probation reports, and they confirm much of what was said in mitigation. It states that the defendant studied from P1 to P6 in a Catholic primary school and there were no problems at that stage. He then went to secondary school from 94 to 97. In his first two years, his progress was fair but in Form 3, he failed nearly all his subjects and he subsequently left school to find employment.

20.He first worked as a delivery worker and as a worker in a mechanic company, and then he changed work as a casual air‑conditioning worker for nearly seven years. He became a van driver for eight months but due to the offence of dangerous driving, he was disqualified from driving for 15 months in October of 2007, and it was then that he changed to work as a warehouse worker in a container port for nearly a year and was later made redundant. He claimed that from 2009 to January 2010, he worked as a casual worker in wholesale market and a dismantling container. He worked for four days a week, earning some $9,000 per month.

21.Reports state that he was the middle child of his parents and it confirms that his father died in 2008 of a heart attack. It seems that thereafter, he suffered from depression and started to take drugs and alcohol, and at the end of 2008 he encountered another personal crisis when he was laid off work because of the downsizing of his employing company.

22.The report states that the defendant has led a playful life. He is very social and he has a supportive girlfriend notwithstanding that the offence of assault was against her.

23.He told the psychologist that on the night of the offence, he initially had difficulty falling asleep and he therefore drove to get some drugs for his personal use, and he never considered the insurance questions in relation to his motor vehicle. He agreed with the psychologist that he was an impulsive person and tended to act upon his own wish without contemplation of the consequences.

24.The conclusion and recommendation of that report is that the defendant impressed as a young adult with a relatively carefree attitude and immature cognitive thinking in problem solving and stress management, and it suggested psychological intervention on his stress coping and mood-management skills and also pertaining to his drug problem.

25.The driving offences, particularly the dangerous driving was a very bad example of driving. Within the range of offences of this type, the driving of this defendant was towards the more serious end of that category. It was a sustained course of deliberately driving dangerously. Although it was a quiet road, it was extremely fortunate that there were no other vehicles other than the police vehicles in the vicinity. There was substantial damage caused to one of the police vehicles, and it was fortunate that the police officers there only sustained relatively minor injuries.

26.It was exacerbated by the fact that the defendant had been convicted of a dangerous-driving offence in October of 2007 and would only have been able to drive again at the beginning of 2009. The maximum sentence for an offence of dangerous driving is 3 years’ imprisonment.

27.With regard to this defendant, I take a starting point of 2 and a half years’ imprisonment and I reduce that by one‑third to reflect his guilty plea. For that offence, the defendant will go to prison for 20 months.

28.The second offence is the offence of driving whilst under the influence. This was not merely an offence of driving under the influence. He was actually taking the drugs whilst on board the vehicle. I take a starting point of 12 months for that offence, reduce it to 8 months and order that that run consecutive to the 1st charge.

29.As regards disqualifications for those offences, on Charge 1, I disqualify the defendant for 5 years; and on Charge 2, for 2 years; and those disqualifications should run consecutive.

30.For the charge of no insurance, I sentence the defendant to 1 month’s imprisonment concurrent and order that he be disqualified for 18 months.

31.In respect of the offence of trafficking in dangerous drugs, I take a starting point of 3 years’ imprisonment in respect of that offence. I reduce that to 2 years to reflect the guilty plea. I have considered the question of totality and I order that 12 months of that sentence should run consecutive to the other sentences.

32.The total sentence that I impose on the defendant is therefore one of 40 months’ imprisonment, and he is disqualified from driving for a period of 5 years. I also order that he should not be allowed to drive a motorcar until he has passed a test of competence.

33.You have been disqualified from driving previously for dangerous driving, that if after your release from prison you were to drive during the period of your disqualification, that of course is an offence in itself, and given your record, that would be treated very seriously and that would be dealt with in addition to any other offences that you may have committed.