HKSAR v. Lee King Yin

DCCC 371/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 371 OF 2012

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REASONS FOR SENTENCE

The defendant faces a charge of "Dangerous driving" (Charge 1), a charge of "Using a motor vehicle without third party insurance" (Charge 2), a charge of "Driving while disqualified" (Charge 3) and a charge of "Trafficking in a dangerous drug" (Charge 4). He pleaded guilty to Charges 1 to 3. In relation to Charge 4, he pleaded guilty to "simple possession", which was accepted by the Prosecution.

Summary of Facts

2.About 3:25 am on 5 February 2012, police officers on motorcycle patrol (PW1 to PW3) spotted private car PR2383 travelling at very high speed along Yuen Long Highway towards Tuen Mun.  They followed that private car.  A few minutes later, PW1 and PW2 stopped PR2383 at the bus terminal of Lung Mun Oasis.  The defendant was the driver.  A male passenger sat in the front and a female passenger in the rear.

3.Whilst PW1 and PW2 were conducting the investigation, PW3 was on his motorcycle guarding the roundabout located at the exit of the bus terminal.  PW1 and PW2 instructed the defendant to switch off the engine and place the ignition key on the roof of his car. The defendant first complied.  When PW1 and PW2 approached the private car, he suddenly retrieved the car key and started the engine.  The defendant made a quick U-turn and drove towards the exit at high speed.  As he approached the roundabout, he accelerated and attempted to ram into PW3's motorcycle.  PW3, who was sitting on his motorcycle at the time, had to retreat immediately to avoid collision with the defendant's car.  The defendant drove in the wrong direction at the roundabout, turned right into an unnamed road and rammed into some traffic cones.  He also jumped a red light and drove along Lung Mun Road at high speed.  PW3 followed the defendant riding his motorcycle at the speed of 120 to 130 km/h.

4.When the defendant's car reached Tsing Wun Road near Nan Fung Industrial City, he tried to overtake a taxi GD5864. The defendant was unsuccessful and rammed into the rear of the taxi.  After impact, the defendant's car rammed into some water-filled safety barriers located on the offside of Tsing Wun Road.  His car then hit the rear of the taxi again before it came to a halt.

5.The defendant and the male passenger alighted from the private car and fled.  The female passenger remained inside the car.  PW1 to PW3 gave chase.  The defendant was seen dropping 2 resealable plastic bags (later found to contain a total of 34 plastic bags which contained a total of 9.48 grammes of a solid containing 7.41 grammes of cocaine) on the ground near Tsing Shan Tsuen Light Rail Station.  He was finally intercepted at Yip Wong Road and the male passenger escaped.

6.Under caution, the defendant said he was not the driver of the private car and had nothing else to say.

7.Upon search, a transparent resealable plastic bag and a HK$50 note (both contained traces of cocaine) were found from the beverage tray behind the transmission lever of the defendant's car.  A Bank of China credit advice addressed to the defendant was also found in the trunk.

8.The defendant's car was severely damaged after the incident.  A total of 29 water-filled safety barriers and 15 flashing lights were damaged.  The rear offside of the taxi was also damaged and the cost of repair was $4,800.  The taxi driver (Mr. WONG Chi-ping) sustained decreased range of movement of neck in all directions and with tight neck muscles.  Back examination showed tenderness around L4/5 area and left side paraspinal muscle.  He had to undergo physiotherapy and was granted a total of 44 days sick leave.

9.The vehicle licence of the defendant's car had expired on 13 November 2011.  The defendant was disqualified from driving for 15 months on 7 July 2011.

Mitigation & Sentence

10.The defendant is now 30 and single.  He has 2 conviction records involving 3 offences, 2 of which are similar to Charges 2 and 3.  On the other hand, he has no previous history of drug-related offences.  Defence counsel Mr. SO informed me that prior to this case, the defendant worked as a decoration worker earning $8,000 per month.  In view of Charge 4, I adjourned the sentence pending a DATC Report.

11.Today, Mr. SO informed me that the DATC Report has been explained to the defendant and he agrees with its contents.  The defendant's background is set out in details in the report.  I need not repeat them here.

12.Regarding Charge 1, the defendant's driving manner was appalling.  It is obvious that he drove in such a dangerous way in order to avoid apprehension by the Police.  He knew better than anyone as to how much drugs he was carrying and that he was at the material time subject to a suspended sentence.  An immediate custodial sentence is required.  I have considered the Court of Appeal's decision in SJ v KO Wai Kit, Paul [2001] 3 HKLRD 751.  Although the defendant drove dangerously, disobeyed police commands and disregarded the safety of other road users, I do not consider Charge 1 falls within the category of the worst of its kind.  Bearing in mind the maximum prison term for this offence is 3 years, I adopt a starting point of 18 months.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 1 is therefore 12 months.

13.For Charges 2 and 3, they are the defendant's 2^nd conviction of similar offences within 7 months.  It is plain that Charge 3 constitutes a flagrant breach of a disqualification order.  In respect of Charge 2, the defendant has deprived all potential victims of adequate financial protection.  Immediate custodial sentences are required for both charges.  I adopt a starting point of 9 months' imprisonment for each charge.  A one-third discount is given for the guilty pleas, reducing the sentence for each charge to 6 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, the sentences for Charges 2 and 3 are 6 months each.

14.For Charge 4, the defendant had in his possession 7.41 grammes of cocaine (contained in 34 plastic bags).  In my view, this is not a small quantity for "simple possession".  The DATC Report reveals that the defendant is not a drug dependant.  I adopt a starting point of 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months. Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 4 is therefore 10 months.

15.I accept that the driving offences (Charges 1 to 3) all arose from the defendant's unlawful driving.  On the other hand, Charges 1 to 3 and the drug offence (Charge 4) are separate and distinct.  Furthermore, Charge 1 could have been completely avoided had the defendant obediently submitted himself for police inspection.  In principle, the sentences for the 2 types of offences should be served consecutively.  Having considered the totality principle, I make the following order :

(i) Charges 1 to 3 to run concurrently; and

(ii) 8 months in Charge 4 to run consecutive to Charges 1 to 3.

Thus, arriving at a total prison term of 20 months for Charges 1 to 4.

16.As a result of this case, the defendant is in breach of a suspended sentence of 4 months' imprisonment in total (TWCC 1557/2011).  I will activate the suspended sentence.  Having considered the totality principle again, I order the defendant to serve the 4 months immediately and consecutive to all sentences in the present case.  In other words, the overall prison term is 24 months.

17.For Charges 1 to 3, a disqualification order is also inevitable.  I have borne in mind the comments made by the Court of Appeal on disqualification order in SJ v HUNG Ling Kwok [2010] 4 HKLRD 365.  For Charge 1, I make a disqualification order of 12 months; for Charge 2, 3 years; and for Charge 3, 3 years.  The disqualification orders for Charges 1 to 3 shall run concurrently, but consecutive to all other existing disqualification orders.  Pursuant to section 70 of the Road Traffic Ordinance (Cap.374), I also order the defendant to be re-tested upon the expiry of all disqualification orders.