HKSAR v. Lam Sai on

DCCC39/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 39 OF 2011

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Reasons for Sentence

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1.The Defendant pleads guilty to one count of possession of dangerous drug (Charge 1) and one count of driving a motor vehicle under the influence of drug (Charge 2).

2.At 1335 hours on 31 October 2010, a driver parked his private vehicle in Yik Yam Street, Happy Valley, and left for shopping.  When he was walking away, he heard a “bang” sound from his back.  He found that a public light bus hit his private car, causing damage to the offside rear part of his private car.  The driver immediately approached the driver of the public light bus, who was the Defendant, and found the Defendant in a semi‑conscious state in his driver seat.  A report was then made to the police.

3.A police officer arrived at the scene and he found the Defendant was still in a semi-conscious state. He found a straw containing traces of suspected ketamine on the Defendant’s right thigh and a packet of suspected ketamine on the floor of the driver seat.  Traces of white powder was also found outside the Defendant’s nostril.  Another police officer collected the white powder outside the Defendant’s nostril by using a brand new absorbent pad.

4.A passenger of the public light bus was located.  He stated that the Defendant had been driving in an abnormal manner earlier on.  He saw him skipped a stop at Yik Yam Street junction with Shan Kwong Road.  Thereafter, the public light bus was moving slowly with sudden stopping and advancing.  Upon reaching Yik Yam Street, the public light bus stalled. Although some of the passengers wanted to alight from the public light bus, the Defendant ignored their requests and did not open the door of the bus.  As a result, one of the passengers pulled open the door of the public light bus and all the passengers alighted.  After a while, the passenger saw the public light bus moved forward slowly and hit a private car.

5.The Defendant was then arrested by the police at the scene.  The Defendant was still in a semi-conscious state.

6.At about 1750 hours on the same day, after the Defendant was cautioned, the Defendant claimed that the ketamine was the leftover of his last-night consumption.  As he got nothing to do at the minibus terminus, he consumed the drug again with a plastic straw.  Shortly thereafter, he was confused and did not even know that the public light bus crashed into another car.

7.In a subsequent interview, the Defendant again claimed that he had consumed ketamine by a plastic straw. 

8.Government Chemist confirmed that:

(a) the packet on the floor of the driver seat contained 0.77 gramme of a powder containing 0.65 gramme of ketamine;

(b) the straw contained traces of a powder containing ketamine;

(c) the white powder collected by the absorbent pad contained traces of ketamine.

9.The Defendant is aged 34.  He has 10 previous convictions with 4 related to possession of dangerous drug, 1 of driving while disqualified, and 1 of using a motor vehicle on a road against third-party risks. There are also 4 convictions of traffic offences, and 2 of them were careless driving.  Prior to the arrest, he was a public light bus driver earning $8,000 a month.

10.According to Mr Chan, counsel for the Defendant, since his discharge from prison three years ago, the Defendant had turned a new leaf and worked as a public light bus driver and he had not committed any criminal or traffic offence for the past three years.  The Defendant maintains that he is not a drug addict.  Shortly before the commission of the offence, he had an argument with his girlfriend.  He met some friends who sold him the ketamine.  He gave in to the temptation and he consumed the drug as an easy way out of his emotional trauma.   

11.The court has also received a number of letters from the Defendant, the Defendant’s girlfriend and the Defendant’s employer, all pleading for leniency. 

12.For the offence in Charge 1, I adopt a starting point of 15 months’ imprisonment.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to one of 10 months’ imprisonment.

13.For Charge 2, the facts of the present case are almost the worst of the kind.  The Defendant was a professional public light bus driver and he was responsible for the safety of all the passengers on board the public light bus that he was driving, and yet the Defendant behaved in a totally irresponsible and reckless manner.  By driving under the influence of ketamine, he was endangering the lives of all the passengers on board and other road-users, and it was only sheer luck that the recklessness on the part of the Defendant had not resulted in any casualty.  It is very difficult to imagine how the Defendant could behave in such an irresponsible and reckless manner, putting the lives of all the passengers and other road‑users at risk.  The present offence certainly calls for a deterrent sentence, and the court must send a loud and clear message to the community that such kind of reckless conduct will not be tolerated by the court.

14.The maximum sentence for the offence of driving under the influence of drug is only one of 3 years’ imprisonment.  For myself, I doubt very much whether the maximum sentence thus reflects the gravity of the offence, and I am glad to hear that the administration is now reviewing the law and the penalty for such kind of offence. 

15.In Secretary for Justice v Chan Hon Hoi CAAR8 of 2010, a taxi driver was driving a taxi under the influence of ketamine and he injured himself in an accident.  18 days later, the defendant drove another taxi under the influence of ketamine.  The passenger by that time was so alarmed by the defendant’s erratic driving and jumped off the taxi.  In the judgment, the Court of Appeal had emphasised the serious nature of such kind of offence, and I do not want to repeat the same here.  Bearing in mind that it was a sentence review and that there had been no previous warning by the court about the serious nature of the offence, the Court of Appeal adopted a starting point of 2 years’ imprisonment for the first offence and 2 and a half years’ imprisonment for the second offence.

16.This is not an application for review of sentence.  As the facts of the present case are particularly serious and such kind of offence does call for a deterrent sentence, I would adopt a starting point which is close to the maximum sentence of 3 years’ imprisonment.  I have also taken note of the fact that the decision of Secretary for Justice v Chan Hon Hoi was handed down after the commission of the present offence, but a normal person should have been aware of the serious nature of such irresponsible and reckless act.  Had the accident caused any casualty, I would have no hesitation in adopting the 3 years’ maximum as the proper starting point.

17.In the present case, since there was no casualty and the damage to the private vehicle was slight, I adopt a starting point of 2 and a half years’ imprisonment.  Giving the Defendant one-third discount for his plea of guilty, I would reduce the sentence to one of 20 months’ imprisonment.

18.I have also considered all the other mitigating factors advanced by Mr Chan, including but not limited to the circumstances under which the Defendant committed the offences and that he had not committed any criminal or traffic offence in the past three years.  But I do not find that these mitigating factors justify any further reduction in the sentence, but I would order the sentence in Charge 2 to run concurrently with the sentence in Charge 1, making a total of 20 months’ imprisonment.

19.Because of the serious nature of the offence, I am also of the view that there must be a long period of disqualification.  I order that the Defendant be disqualified from driving for 4 years, with a re-test requirement.  And this is the sentence I impose in the present case.