HKSAR v. Cheng Man Fai

DCCC598/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 598 OF 2012

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two charges before this court. The 1st charge is of driving a motor vehicle under the influence of drugs, contrary to section 39(1) of the Road Traffic Ordinance, Cap. 374. The 2nd charge is a charge of dangerous driving contrary to section 37(1) of the same ordinance. Both those offences were committed on 26 November 2011.

2.On that day you drove your light goods vehicle dangerously and under the influence of the dangerous drug ketamine.  At about 2.25 am you drove dangerously for approximately three minutes in the Aberdeen area.  At times you were driving at speeds reaching up to 120 kilometres an hour, you did not stop at red lights and crossed double white lines.  I will now turn to the full facts of these offences. 

3.At around 2.25 am police officers were on mobile patrol in Aberdeen. They saw your light goods vehicle, driven by yourself cut double white lines near Kwun Hoi Park.  The police gave chase with their blue siren lights.  The officers requested you to stop your vehicle using a loud speaker.  You then stopped.  The officer then alighted from the police vehicle and approached your vehicle.  At this juncture you suddenly drove away and accelerated along Aberdeen Praya Road in the direction of Wah Kwai Estate. 

4.The officers immediately gave chase with their police vehicle, again requesting you to stop.  You ignored their request and kept driving.  The maximum speed you reached was 120 kilometres per hour beyond the speed limits of 50 and 70 kilometres along the Aberdeen Praya Road.  You then reached a 50 kilometre zone, to which there is no evidence you were driving at 120 kilometres.  You then jumped two red lights of Skek Pai Wan Road.  After that you effectively did a U-turn and drove back along the Aberdeen Praya Road in the direction of Wong Chuk Hang Road on the correct side of Aberdeen Praya Road.  You were eventually intercepted by the officers at No. 27 Wong Chuk Hang Road at 2.28 am and arrested. 

5.The distance of the route taken by you was about 3 kilometres in total.  There is a sketch attached to the admitted facts showing the route you took, the locations you jumped the red light and the location where you crossed the double white lines, as well as the speed limit.

6.Under caution you admitted that you had consumed Ketamine about two hours previously.  Upon search a resealable plastic bag and straw was found from the glove compartment of your light goods vehicle.  It was confirmed by the Government Chemists to contain traces of powder containing ketamine. 

7.In a subsequent cautioned interview you admitted that you had consumed the drugs that were in that plastic bag.  The amount of drugs you consumed was about 0.5 grammes of “ketamine”.  You had taken the ketamine some two hours before you started driving your van.  At the time of driving the van you felt dizzy and you did not know that you had jumped red lights.  A urine sample was taken from you and the Government Chemist confirmed that “ketamine” was detected in your urine.  You were the registered owner of the light goods vehicle. 

8.Your solicitor, Mr Jacky Lee, has mitigated fully and thoroughly on your behalf.  I have taken into account all that he has had to say for you in considering the most appropriate sentence.

9.You are aged 29. You have three previous convictions which include burglary and theft.  On 16 May this year, approximately two months before today, you were convicted of possession of a dangerous drug and driving a motor vehicle under the influence of drink or drugs.  That is the same offence to which Charge 1 applies in this case.  You were sentenced to 6 months on the drug charge and 2 months on the driving under the influence of drugs.  One month was to run consecutive, making a total term of 7 months’ imprisonment, which you are now serving. 

10.You have been educated up to Form 2 in Hong Kong and had been working as a delivery worker.  You are otherwise in good health.  You are married, with two young sons aged 2 and 5.  You live with your in-laws. 

11.I have received a bundle of letters from your family, who are very supportive of you.  They include a letter from your mother-in-law, your wife, your sister, and a representative from the Christian New Life Association, which is a voluntary drug rehabilitation centre, and also a letter from yourself.  The letters tell me that you are hard working and provide for your family.  You had worked two jobs.  However, due to a termination of your employer’s contract with a contractor your finances became tight.  You felt pressure at home and from work.  Eventually you turned to drugs to relieve that pressure.  Your letter tells me that you are extremely remorseful and deeply regret to have disappointed your family.  You have indicated that you will turn a new leaf after serving your period of imprisonment. 

12.In respect of your traffic record, you have seven previous convictions for traffic offences.  All of them are for careless driving, one for failing to stop after an accident, one for driving or using an unregistered vehicle, and another for disqualification under the Driving Offence Points Ordinance.  Your solicitor Mr Lee has referred me or drawn my attention to the case of HKSAR v Chan Kwan Hui a Court of Appeal judgment dated 22 December 2010.  However, Mr Lee submits however that that case is of a much more serious kind than this case as in this case there are no casualties are personal injuries involved.

13.I have had regard to that case of Chan Kwan Hui and I accept that this is in no way as serious a kind of case as in the facts shown in that case.  However, in this case, you decided to drive your vehicle after consuming Ketamine.  You were still under its influence. You had said you felt dizzy.  In so doing you put your own life and other lives at risk without thinking of the consequences. 

14.The Court of Appeal then said, at paragraph 33:

“Driving under the influence of drugs is an issue of growing concern worldwide. There is an indication that drug driving problem is also becoming prevalent in Hong Kong according to the report issued by the Transport & Housing Bureau in July 2010. Such offence must be nipped in the bud.”

15.It said earlier at paragraph 27:

“Drivers who not only drive a car whilst under the influence of drugs must expect a heavy sentence.”

16.The court observed the maximum sentence of 3 years’ imprisonment may not be adequate in a bad case of driving under the influence of drugs.  The relevant maximum term is 3 years’ imprisonment for the offence you have committed on both charges.

17.The dangerous driving charge shows that you drove for about three minutes over three kilometres erratically and dangerously, hotly pursued by police officers telling you to stop, and to which you blatantly ignored their request.  You were exceeding the speed limit in some areas by 70 kilometres an hour at the most. 

18.I accept, however, where you were speeding at a 120 kilometres an hour, that road was a straight road and was a road which also had a speed limit of 70 kilometres an hour.  It was perhaps fortunate that there were no injuries to persons or damage to other vehicles.  Perhaps it was because it was at 2.25 am early in the morning with few cars and persons in the streets.  Your driving was very dangerous driving.  You were speeding excessively.  You failed to stop at red lights, you crossed double white lines.  You were driving under the influence of drugs.

19.The Court of Appeal, in Chan Kwan Hui, recognised that R v Cooksley [2003] AER page 40, at page 44, emphasised that:

“The purpose of disqualification is looking forward and preventative rather than backward-looking impunity.”

20.Cooksley, as is well known, is an English authority on sentencing in regard to dangerous driving causing death.  The first band of that case is where there are no aggravating factors listed in Cooksley, the term of imprisonment for dangerous driving causing death is a sentence of between 12 and 18 months’ imprisonment.  I take some guidance from that case in deciding what is the appropriate term to impose upon you in this case.  I have already referred to the factors in this case to which you were driving dangerously and under the influence of drugs. 

21.The two charges, I accept, arose out of the same incident.  What I must look to then is what would have been the appropriate sentence had I convicted you after trial.

22.Taking all these factors into account, and the principle of totality, I would have taken a starting point of 12 months’ imprisonment had I convicted you after trial of both these offences.  However, I must give you full credit for your plea of guilty, and that sentence term should be reduced to 8 months’ imprisonment to reflect that. 

23.In arriving at that sentence I sentence you on the following terms,  acknowledging that for both charges the maximum term of imprisonment is one 3 years’ imprisonment. 

24.On Charge 1, defendant, I will take a starting point of 6 months’ imprisonment and reduce that to 4 months to reflect your plea of guilty.  On Charge 2 I will take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment to reflect your plea of guilty.

25.To arrive at the overall sentence of 8 months I order 2 months of Charge 1 to run consecutive to Charge 2, which makes an overall sentence of 8 months’ imprisonment. 

26.You are now serving a sentence of 7 months’ imprisonment, which I have mentioned earlier.  That offence was in fact committed after this offence.  That offence was committed on 18 December 2011, approximately three weeks’ after this present offence.  You were brought up before the magistracy and sentenced.  I had asked the prosecutor why that case was not consolidated with this case, or why if this case was committed first that case was not adjourned to after hearing of this case.

27.Miss Chan has not been able to inform me why, but to say that the Department of Justice only received the file on this case after your second case was dealt with by the magistracy.  I have expressed to Miss Chan that this is not good case management.  The cases should have either been consolidated or the magistracy case should have been adjourned till after the hearing of this case. 

28.This view was also reflected in a case which Miss Chan submitted to me of Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD at 751, to which the Court of Appeal then was faced with a similar situation.  The police should have known that you were arrested for the original offence and have brought this case up together.  Nevertheless I have dealt with you on sentence as if this was your first offence. I shall order that 4 months of this offence shall run consecutive to your present term of imprisonment.

29.Turning to disqualification, the court shall disqualify you in respect of both charges.  For Charge 1, I had asked Miss Chan and Mr Lee to address me on section 69A of the Road Traffic Ordinance and asked particularly to hear on submissions on whether the conviction of this offence today, although first in time, is to be regarded as a subsequent conviction of a relevant scheduled offence.  If it is a subsequent conviction, then 69A comes into play.  Miss Chan and Mr Lee have submitted that they agree that although this offence was first in time this offence is a subsequent conviction. Because your first conviction of this offence was on 16 May 2012, and therefore this must be a subsequent conviction, I agree with their submissions.

30.In those circumstances, defendant, you are disqualified on Charge 1, that is driving under the influence of drugs, as this is your second conviction, for a period of 5 years, and that disqualification is not to start to run until after your period of imprisonment is served.  And you will also need to attend a driving improvement course under section 72A.

31.As for Charge 2, this is your first conviction of dangerous driving, and you shall be disqualified for a period of 2 years.  Under section 69A that term of disqualification shall not start until after you have served your period of imprisonment.  You shall also attend a driving improvement course under section 72A.