HKSAR v. Chiu Kin Man

DCCC 872/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 872 OF 2012

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of dangerous driving, contrary to section 37 of the Road Traffic Ordinance, Chapter 374 (charge 1); one charge of using an unlicensed vehicle, contrary to section 52 of the Road Traffic Ordinance (charge 2); one charge of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 3); one charge of possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance (charge 4); and one charge of possession of apparatus fit and intended for inhalation of a dangerous drug, contrary to section 36 of the Dangerous Drugs Ordinance (charge 5).

2.In summary at about 2235 hours on the 10th June last year uniform police, including Sgt 34339, saw a stationery private car NF 5308 outside 37C Fife Street, Mongkok.  The police approached the car with a view to questioning the defendant, who was sitting in the driver’s seat.  The police twice requested the defendant to turn off the engine of the car but the defendant ignored the police. 

3.The defendant then reversed the car first hitting Sgt 34339 and on reaching Fa Yuen Street colliding with a public light bus ED 5850.  The defendant then proceeded to drive against the on-coming traffic on Fa Yuen Street, once mounting the pedestrian pavement, before continuing in the right direction along Mongkok Road and Sai Yeung Choi Street South where he finally came to a halt after colliding with a taxi KB 5469 and hitting the railing on the pedestrian pavement.   

4.The defendant and a female passenger alighted from the car and made good their escape.  The police conducted a search on the car and found a wallet on the driver’s seat, inside which was the defendant’s identity card.  The police also found on the driver’s seat four re-sealable bags containing the drugs subject of the trafficking charge.  An electronic weighing scale, several empty re-sealable bags and a piece of tin foil were also found in the car. 

5.The vehicle licence of the car had expired four days earlier and therefore the defendant was driving an unlicensed vehicle.

6.As a result of the collision Sgt 34339 attended the Kwong Wah Hospital where he received treatment for tenderness, redness and swelling on his left leg. Fortunately the sergeant was not more seriously injured and no pedestrians were injured.  The public light bus and the taxi were also not seriously damaged. The most damage was to the car the defendant was driving and from the photographs showing the damage one can imagine the manner in which he drove the car.

7.Two days later the police arrested the defendant at his home.  During a search of the home the police found a small quantity of cocaine and a tablet containing nimetazepam  (charge 4) and equipment for inhaling ice (charge 5).  Under caution and in a subsequent video interview the defendant admitted the drugs found in the car and at his home were for his own consumption. 

8.In passing sentence I have taken into account everything said on behalf of the defendant by Miss Chow, including that the defendant after he was released from prison in 2011 met his girlfriend who helped him secure a job as a transport worker.  The girlfriend became pregnant and in need of money the defendant resorted to trafficking in drugs.  The girlfriend stands by the defendant and is expecting their child at the end of the month.

Dangerous driving (charge 1)

9.In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death.  These factors were revised in R v Cooksley [2003] RTR 32.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksleyas applied in the Secretary for Justice v Poon Wing Kay & another [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.

10.This principle was repeated in Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318 where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice (see paragraph 36 of the judgment).

11.Miss Chow has referred me to three cases which have similarities to the present case.  In the Secretary for Justice v Ko Wai Kit [2001]       3 HKLRD 751 the driver in that case having been seen making an unlawful ‘U-turn’, embarked on a crazed journey, in an attempt to evade apprehension, committing one traffic offence after another, jumping red lights, colliding with motor vehicles and motor cycles, injuring a police officer and two civilians, failing to obey police commands to stop and violently resisting arrest when finally intercepted.  

12.The appellant pleaded guilty to dangerous driving and was sentenced to 12 months imprisonment.  The Court of Appeal, describing the case as a shocking case of dangerous driving, said the maximum term of 3 years imprisonment ought to have been taken and increased the sentence for dangerous driving to 2 years imprisonment. The court also increased the period of disqualification from 2 years to 5 years.

13.Ko Wai Kit was referred to in the later case of HKSAR v Tang Chen Ming [2003] 1 HKC 515.  In that case the defendant drove into the back of a taxi.  In an attempt to leave the scene the defendant reversed his car at high speed, mounted the pavement, then re-entered the road until coming to a halt, in the course of which four people were injured, one seriously, and no less than four taxis, a police van and a shop were damaged.  The Court of Appeal in upholding a sentence of 2½ years imprisonment said that, if anything, Ko Wai Kit was an even more serious example of dangerous driving. 

14.The third case cited by Miss Chow is HKSAR v Jim Chong Shing CACC 186/2003 where the defendant on approaching a road block, set up as part of an anti-illegal road racing operation, made a u-turn and drove past two police vans, which had been positioned as a backstop to prevent the cars in the road race driving away.  The defendant hit one of the police vans, which in turn hit the other police van with the impact causing injury to a police officer on board one of the vans.  The defendant continued to travel against the on-coming traffic at high speed until he came to a stop.  When a police officer told the defendant by name to turn off the engine the defendant suddenly reversed and made good his escape after a chase of 10 minutes during which the defendant at times exceeded the speed limit by more than 80 kph and committed a number of traffic offences, including overtaking by crossing double white lines.  The Court of Appeal in dismissing an appeal against a sentence of 2½ years imprisonment described the case as an appalling case of dangerous driving.

15.I accept the submission of Miss Chow that these cases are more serious than the present case.  This case however remains, as Miss Chow accepted, a bad case of dangerous driving.  The driving was a prolonged, persistent and deliberate course of bad driving, involving hitting a police officer whilst reversing; colliding with a public light bus and a taxi; driving against the on-coming traffic and at one stage mounting the pedestrian pavement.  I am satisfied the proper starting point after trial is one of 2 years imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 4 months imprisonment.

Disqualification

16.There is mandatory disqualification for dangerous driving unless the court for special reasons decides not to make such an order.  I find there are no special reasons not to order the defendant to be disqualified.  I am satisfied taking into account the circumstances of the driving that a period of 3 years disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.

17.By virtue of section 72A (1A) of the Road Traffic Ordinance a court shall order a person convicted of dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again there are no special reasons not to make the order.  The defendant is ordered to attend and complete a driving improvement course within 3 months beginning on the date he finishes serving the term of imprisonment. The defendant is warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course notwithstanding the disqualification period will have ended whilst serving his prison sentence.

Using an unlicensed vehicle (charge 2)

18.Failing to check whether a vehicle was properly licensed in circumstances where the vehicle was rented and had a vehicle licence, which had just expired, in my view attracts a financial penalty only.  Although the defendant has two similar convictions taking into account he is to serve a long period of imprisonment I am satisfied a fine of $500 is appropriate, which with the consent of the defendant is deducted from item 20 in the list of exhibits. 

Trafficking in dangerous drugs (charge 3).

19.The drugs subject of the trafficking charge are 3.89 grammes of a mixture containing 1.99 grammes of heroin; 24.59 grammes of a powder containing 19.30 grammes of cocaine and 5.93 grammes of a crystalline solid containing 5.87 grammes of methamphetamine hydrochloride (“ice”).

20.Guidelines have been laid down by the Court of Appeal in respect of each of these drugs.  In R v Lau Tak Ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment. 

21.The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  Where the quantity of narcotic is between 10 and 50 grammes the sentence after trial is between 5 and 8 years imprisonment.

22.In Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 the Court of Appeal laid down guidelines for trafficking in ice.  Where the quantity of narcotic is up to 12 grammes sentence upon conviction after trial is between 3 and 7 years imprisonment.  In HKSAR v Capitania Edwin F. CACC 28/2004 the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read 10 grammes.

23.Adopting the ‘individual’ approach the proper starting point after trial, based on quantity alone, for trafficking in 1.99 grammes of heroin would be not less than 2 years and 6 months imprisonment; trafficking in 19.30 grammes of cocaine would be not less than 5 years and 9 months imprisonment and for trafficking in 5.87 grammes of ice would be not less than 5 years imprisonment. 

24.This would result in a starting point of not less than 13 years and    3 months imprisonment, which clearly is excessive for if all the drugs, totalling 27.16 grammes, were ice sentence upon conviction after trial would fall in the range of 7 to 10 years imprisonment, with a likely starting point based on quantity alone of 8 years imprisonment.  If all the drugs were heroin and cocaine the likely starting point based on quantity alone would be 6 years imprisonment.

25.In my view the combined approach to sentence is therefore appropriate.  Whilst the most potent drug is ice sentence must reflect that by far the largest quantity is cocaine; that there were three different drugs and that the defendant has been convicted of trafficking in drugs on two previous occasions, the last being in 2005 when he received a sentence of 6 years imprisonment in the District Court (seeHKSAR v Yim Hung Lui, Ricky CACC 266/2011).  In all the circumstances I am satisfied a starting point of 7 yearsimprisonment is appropriate. 

Own use

26.The defendant says that half of the cocaine; most of the heroin; and the ice were for his own consumption, although he would share the ice with his friends. Taking into account the defendant has previous convictions for possession of drugs, albeit in 1994, for which he was sentenced to DATC; apparatus suitable for inhaling ice was found in his home and whilst in police custody he was taken to receive methadone three times, I am prepared to accept that some of the drugs may have been for his own consumption but not as much as the defendant says.   

27.In deciding how much weight should be attached to the fact some of the drugs were for the defendant’s own use I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34 together with the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 cited by Miss Chow.

28.Taking into account the quantity of three different types of drugs; that they were found in a car in the late evening together with an electronic weighing scale and several empty re-sealable bags suitable for trafficking; the defendant is a known trafficker in drugs; the ice was for social trafficking; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 9 months to one of 6 years and 3 months imprisonment. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years and 2 months imprisonment.   

Possession of cocaine and nimetazepam and possession of apparatus fit and intended for inhalation of ice (charges 4 & 5)

29.In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  Had these charges stood alone they would have been dealt with in the magistracy.  Taking into account the small quantity of cocaine I am satisfied a starting point of    9 months imprisonment is appropriate.  The tablet of nimetazepam adds nothing to the culpability of the defendant on this charge.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 6 months imprisonment.

30.For possession of apparatus I am satisfied a starting point of        6 months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 months imprisonment.

Totality

31.Although committed at the same time the dangerous driving and trafficking in drugs are entirely separate and distinct from each other for which I am satisfied wholly consecutive sentences are appropriate.  For the possession of drugs and apparatus in the defendants home, albeit concerning different drugs, I am satisfied concurrent sentences for these two charges are appropriate.  They are however separate and distinct from the charges committed two days earlier and again should be made to be served consecutive to the sentence on those charges. However taking into account for the trafficking charge I have accepted part of the drugs were for the defendant’s own consumption and considering totality of sentence I order the sentences to be served concurrent to each other and to the sentence imposed on charges 1 and 3.

Meaningful discount

32.This makes a total sentence to be served by the defendant of 5 years and 6 months imprisonment, which I am satisfied properly reflects the defendant’s criminal culpability on the charges and is a meaningful discount from the maximum jurisdiction of this court of 7 years imprisonment, the prosecution having somewhat surprisingly brought this case in the District Court and not the High Court.

Sentence

33.In summary the defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 4 months imprisonment;

Disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years and to attend and complete a driving improvement course.

Charge 2 – fined $500

Charge 3 – 4 years and 2 months imprisonment consecutive to charge 1;

Charge 4 – 6 months imprisonment;

Charge 5 – 4 months imprisonment;

Sentence on charges 4 & 5 served concurrently and concurrent to charges 1 & 3

Total sentence 5 years and 6 months imprisonment.