HKSAR v. Khan Sadam Biland and Another

DCCC 1125/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1125 OF 2012

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Reasons for Sentence

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1.D1, you are now convicted on your own plea of one offence of dangerous driving, contrary to section 37 of the Road Traffic Ordinance Cap.374, and D2, you are convicted on your own plea of guilty to one offence of trafficking in dangerous drugs, contrary to sections 4(1)(a) and 3 of the Dangerous Drugs Ordinance, Cap.134.

2.You both admitted the relevant brief facts and I convicted you.  D1, you denied the first charge, which is one of trafficking in dangerous drugs, and that was ordered to be left on file not to be proceeded with without leave of this court or the Court of Appeal.

3.The prosecution case was as follows.  PW1 to PW6 inclusive are police officers.  At around 5.20 am on 9 August of last year a private car, RK 236, was seen travelling along the San Tin Highway in the direction of Yuen Long.  PW1’s laser gun put the speed at 137 kilometres per hour, the speed limit being 100 kilometres per hour.  PW3 was the driver of police vehicle AM 7347 and PW5 and PW6 rode motorcycles.  The police vehicle and the motorcycles switched on sirens and blue flashing lights.

4.Despite the police indications to stop, the vehicle continued at high speed towards Fairview Park Exchange.  PW3 observed his speedometer of the police vehicle to be 140 kilometres per hour.  Suddenly the other vehicle reduced its speed to around 80 kilometres per hour and cut from the second lane to the first lane.  PW3 followed the vehicle in the second lane at a distance of about 10 metres.  Upon reaching the slip-road of San Tin Highway towards Fairview Park Interchange it switched between lanes.  After driving around the Interchange a couple of times at 50 to 60 kilometres per hour, the vehicle entered the slip-road of San Tin Highway, a single one-way road.        

5.The 1st charge.  The police vehicle followed the other vehicle and at a location near Lamppost No FA 828 on San Tin Highway a hand suddenly reached out from the left front passenger seat of the other vehicle and dropped a plastic bag, which measured 14½ centimetres by 11 centimetres, to the ground.  PW5 stopped his motorcycle and recovered the bag which contained suspected dangerous drugs.  The other vehicle then accelerated and tailgated a taxi which was forced to turn right abruptly to avoid colliding with other vehicles.  That vehicle then continued in the second lane of San Tin Highway at approximately 170 kilometres per hour.  Finally, it came to a halt near Lamppost No FB 582-9 of the slip-road of Yeung Long Highway at about 5.25 am. 

6.At this time the weather was fair and visibility good, the road surface was dry and in good repair, and traffic flow was light. There was sufficient lighting in the form of street lights. 

7.D1, you were sitting in the driver’s seat and D2, you were sat in the front passenger seat.  Traces of suspected dangerous drugs were found all over the interior of the vehicle.  You, D1, were arrested for dangerous driving, and both of you were arrested for possession of dangerous drugs. 

8.Cautioned, you, D1, remained silent, whereas you, D2, admitted you were in the same seat throughout the journey, you never changed places with D1 who was the driver, and he had no knowledge of the dangerous drugs. 

9.Later analysis showed the following.  The bag contained 11.42 grammes of solid containing 9.28 grammes of cocaine, 0.57 grammes of powder containing 0.49 grammes of cocaine were found and seized from the left front passenger seat, and 0.03 grammes of powder contained traces of cocaine seized from the rear passenger seat.  Traces of powder containing cocaine were seized from the driver’s seat. 

10.D1, you admitted to five previous convictions, one of which was of careless driving.  D2, you are of hitherto clear record. 

11.In view of these facts I adjourned the case for a probation officer’s background report, which I have now read and have fully taken into account when sentencing you. 

12.On your behalf Mr Davies entered mitigation.  First of all he told me that you each accepted the contents of the respective probation officer’s background reports.  Mr Davies submitted three authorities whilst making the point of it being difficult to find anything on the point.  Those three authorities were Wo Yat Cheung and Another v R, CACC 1077/1975, R v O Kwok Wai, MA 257/1998, and HKSAR v Tang Chan Ming, CACC 227/2003. The prosecution produced one authority which is R v Chi Kah Cheuk, CACC 725/1996. 

13.With respect, and without criticising either counsel, the age of these decisions, and the particular facts of each meant that there was little therein to guide me on this point.  I have noted, and take judicial notice of the fact that attitudes have changed by the courts to offences involving poor quality driving, that generally the courts do impose more severe penalties these days. 

14.On your behalf, D1, Mr Davies submitted your educational record.  I accept this does show an effort to improve yourself.  He pointed out to me that you had already served on remand about 2 months’ imprisonment.  He had no representations to make on the point of disqualification nor on the imposition of a driving improvement course.  On your behalf he sought leniency. 

15.In respect of you, D2, a man of clear record, he accepted that the tariff had to apply, and simply asked for leniency. 

16.I turn now to the sentence. 

17.The brevity of counsel’s submissions is entirely justified in these circumstances.  There was indeed little to be said, the facts do speak for themselves, it is entirely clear to the court what took place, and your background is amply covered by the probation officer’s reports.

18.I shall deal with the offence against you, D1 first, which is in fact Charge 2.  D1, you deliberately drove at high speed, undertook dangerous manoeuvres, and the purpose was to evade being stopped by the police. Your speed at its highest reached 170 kilometres per hour in a l00 kilometres per hour limit.  It is entirely fortuitous, in my opinion, that no one was killed or badly injured by this piece of appalling driving. I do reject your excuse given to the probation officer that you were simply trying to get home to take a meal.  That is nonsensical and disproportionate to the way in which you were behaving.  In your favour no one was actually hurt, and in your favour you have pleaded guilty.  I do note you have a previous conviction where the quality of your driving was found to be wanting.

19.D2, you are a man of clear record.  You have pleaded to trafficking in dangerous drugs and that is just under 10 grammes of cocaine.  There is really very little that could be said in these circumstances.  It appears that you were dealing in cocaine in order to fuel your own addiction.  It is a standard offence that calls for a standard penalty. 

20.Stand up please.  D1, on Charge 2 I take as a starting point 6 months’ imprisonment reduced to 4 months for your plea of guilty.  You will go to prison for 4 months.  Additionally, you will be disqualified from holding or obtaining a driving license in respect of all classes of vehicles for a period of 2 years, and you will complete a driving improvement course before you drive again.

21.D2, I take as a starting point 4 years and 9 months’ imprisonment, that is 57 months.  For your plea of guilty that will be reduced to 3 years and 2 months, that is 38 months’ imprisonment.