A A
B B
DCCC 984/2015
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 984 OF 2015 D
____________
E HKSAR E
v
F F
CHAN KIN FUNG
G ____________ G
H Before: HH Judge Dufton H
Date: 12 April 2016
I Present: Mr Keith Hotten, counsel on fiat, for HKSAR I
Mr David Boyton instructed by Francis Kong & Co,
J assigned by the Director of Legal Aid for the defendant J
Offences: (1) Possession of offensive weapon in a public place
K (在公眾地方管有攻擊性武器) K
(2) Possession of a dangerous drug (管有危險藥物)
L (3) Driving while disqualified (於取消駕駛資格期間駕駛) L
(4) Driving an unlicensed vehicle (駕駛未領牌車輛)
M (5) Using a motor vehicle without third party insurance M
(沒有第三者保險而使用汽車)
N N
REASONS FOR SENTENCE
O O
1. Chan Kin Fung you have pleaded guilty to one charge of
P P
possession of an offensive weapon in a public place, namely an
Q extendable steel baton, contrary to section 33 of the Public Order Q
Ordinance 1 (charge 1); one charge of possession of 0.70 gramme of a
R R
powder containing ketamine, contrary to section 8 of the Dangerous
S Drugs Ordinance2 (charge 2); one charge of driving while disqualified, S
T 1
T
Cap 245.
2
Cap 134.
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contrary to section 44 of the Road Traffic Ordinance 3 (charge 3); one
C charge of driving an unlicensed vehicle, contrary to section 52 of the C
Road Traffic Ordinance (charge 4), and one charge of using a motor
D D
vehicle without third party insurance, contrary to section 4 of the Motor
E Vehicles Insurance (Third Party Risks) Ordinance4, (charge 5). E
F 2. Full details of the offences are set out in the facts admitted F
by you today. In summary at around 9:50 on the morning of 26 May last
G G
year the police intercepted you when you alighted from the driver’s seat
H of private car RR 436. H
I I
3. The police carried out a search and found an extendable steel
J baton from your right front trouser pocket; one transparent re-sealable J
bag contining the ketamine from the right front door of RR 436 and an
K K
electronic scale and some transparent re-sealable plastic bags from the
L storage compartment between the driver’s seat and the front passenger L
seat. Under caution you admitted that RR 436 had been assigned to you
M M
by the registered owner.
N N
4. Investigation revealed that you were disqualified from
O O
driving for 8 months from 12 November 2014; the insurance of the
P vehicle had expired on 10 September 2014; and the vehicle licence had P
expired on 29 October 2014.
Q Q
R R
S S
T 3
T
Cap 374.
4
Cap 272.
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A A
B B
Mitigation
C C
5. In passing sentence I have taken into account everything said
D on your behalf by Mr Boyton. I am told that you worked part-time for Jet D
Fame International Limited who bought the car for your use in visiting
E E
construction sites. Mr Boyton has submitted the witness statement of the
F project officer of Jet Fame which details your use of the car and your F
responsibility to licence and insure the car. The vehicle licence and
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insurance had expired because you knew you were to be disqualified.
H H
6. You cannot be given credit for a clear criminal record having
I I
previous convictions, inter alia, for offences of dishonesty; drugs and
J acting as a member of a triad society. I take into account that your last J
criminal conviction was in 2007. The same cannot however be said of
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your traffic record which shows you have been disqualified three times in
L 2006, 2013 and 2014. L
M M
Possession of an offensive weapon in a public place (charge 1)
N N
7. Mr Boyton tells the court that you had the extendable baton
O for warding off wild dogs when visiting construction sites. As indicated O
in court taking into account that you were stopped not on or near a
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construction site but on a street in Yuen Long with the baton in your
Q pocket, I do not accept this explanation. Q
R R
8. Section 33(2)(d) of the Ordinance provides that a person
S convicted of an offence who is of the age of 25 years or more shall be S
sentenced to imprisonment for not more than 3 years. There are no
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guideline sentences, the length of sentence depending on the facts of each
C case. C
D 9. An extendable steel baton is capable of causing very serious D
harm. The carrying of such a baton in a public place is a serious offence.
E E
I am satisfied the proper starting point after trial is 9 months
F imprisonment. Giving you full credit for your plea of guilty you are F
convicted and sentenced to 6 months imprisonment.
G G
H Driving whilst disqualified (charge 3) H
I 10. I am told that on that morning you received a call from your I
girlfriend who was shopping in Yuen Long. Your girlfriend said she was
J J
feeling unwell and wanted to see a doctor. Foolishly you drove to collect
K K
your girlfriend and while waiting for your girlfriend you were intercepted
L
by the police. L
M 11. I have real reservations about accepting this explanation for M
driving while disqualified. Even on what I am told this was not an
N N
emergency situation as clearly there was available public transport. Your
O girlfriend could quite easily have taken a taxi or gone to a nearby clinic O
for medical treatment. I am satisfied your driving was a flagrant breach
P P
of the disqualification order.
Q Q
12. Unless there are very exceptional circumstances a custodial
R R
sentence is appropriate where there is a flagrant breach of the
S disqualification order (see for example HKSAR v Ng Suen Wai5). I am S
satisfied the appropriate starting point is 3 months imprisonment. Giving
T T
5
[2003] HKLRD 663.
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you full credit for your plea of guilty you are convicted and sentenced to
C 2 months imprisonment. C
D Disqualification D
E E
13. There is mandatory disqualification for driving while
F disqualified unless the court finds special reasons. The minimum period F
of disqualification stipulated in section 44(2) of the Road Traffic
G G
Ordinance for a first offence is 12 months. There being no special
H reasons I am satisfied the appropriate period of disqualification is 12 H
months. You are disqualified from holding or obtaining a driving licence
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for all classes of vehicles for a period of 12 months.
J J
Driving an unlicensed vehicle (charge 4)
K K
14. I am satisfied for a first offence a fine only is appropriate.
L L
Giving you full credit for your plea of guilty you are convicted and
M sentenced to a fine of $500, which you have consented can be taken from M
your bail money.
N N
O Using a vehicle without third-party insurance (charge 5) O
P 15. Driving without insurance places all other road users at risk. P
This being your second offence of using a vehicle without third-party
Q Q
insurance I am satisfied a custodial sentence is appropriate. A starting
R point after trial of 3 months imprisonment is appropriate. Giving you full R
credit for your plea of guilty you are convicted and sentenced to 2 months
S S
imprisonment.
T T
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A A
B B
Disqualification
C C
16. By virtue of section 4(2)(a) of the Motor Vehicles Insurance
D (Third Party Risks) Ordinance unless the court finds special reasons there D
is also mandatory disqualification for using a vehicle without third party
E E
insurance of not less than 12 months nor more than 3 years from the date
F of conviction. Again I find no special reasons not to disqualify you. F
G G
17. Considering this is your second offence I am satisfied a
H period of 18 months disqualification is appropriate. You are disqualified H
from holding or obtaining a driving licence for all classes of vehicles for
I I
a period of 18 months from today. I order the two periods of
J disqualification to run concurrently. J
K K
Totality
L L
18. Possession of an offensive weapon and the driving offences
M are separate and distinct offences for which consecutive sentences are M
appropriate. I am satisfied wholly consecutive sentences are appropriate
N N
making a total sentence on charges 1, 3 & 5 of 8 months imprisonment.
O O
Possession of a dangerous drug (charge 2)
P P
19. Section 54A of the Dangerous Drugs Ordinance provides
Q Q
that no sentence of imprisonment may be imposed for the offence of
R possession of a dangerous drug without first considering the suitability R
for cure and rehabilitation.
S S
T 20. Although the calling of a report appears mandatory, in my T
view, this is only mandatory where a court can impose a sentence of
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detention in a drug addiction treatment centre. I am satisfied that where
C at the same time sentence of imprisonment is mandatory for other C
offences, in this case possession of an offensive weapon, the provisions
D D
of section 54A do not apply. Both Mr Hotten and Mr Boyton agree
E where a court cannot impose a drug addiction treatment centre the E
provision should not apply. To call for a report only to disregard the
F F
report would be a waste of public funds.
G G
21. In HKSAR v Mok Cho Tik 6 the Court of Appeal said for
H possession of drugs which a bona fide user normally has in his possession H
should be in the range of 12 to 18 months but this does not seek to
I I
exclude magistrates from imposing lesser terms for very small quantities
J J
where the circumstances so warrant. Taking into account the small
K
quantity of ketamine, I am satisfied a starting point of 3 months K
imprisonment is appropriate. Giving you full credit for your plea of
L L
guilty you are convicted and sentenced to 2 months imprisonment.
M M
Totality
N N
22. Possession of a dangerous drug is separate and distinct from
O O
possession of an offensive weapon and the driving offences. I am
P satisfied a wholly consecutive sentence is also appropriate making a total P
sentence to be served by you of 10 months imprisonment, which I am
Q Q
satisfied properly reflects your criminal culpability on the five charges.
R R
S S
T T
6
[2001] 1 HKC 261.
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A A
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Sentence
C C
23. In summary you are convicted and sentenced as follows:
D D
Charge 1 – 6 months imprisonment;
E E
Charge 2 – 2 months imprisonment consecutive to charge 1;
F F
G Charge 3 – 2 months imprisonment and disqualified from holding or G
obtaining a driving licence for all classes of vehicles for a period of 12
H H
months;
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Charge 4 – fined $500 from bail;
J J
Charge 5 – 2 months imprisonment and disqualified from holding or
K K
obtaining a driving licence for all classes of vehicles for a period of 18
L months from today concurrent with the disqualification on charge 3; L
M M
The terms of imprisonment on charges 3 & 5 are ordered to be served
N
concurrent to each other but consecutive to charges 1 & 2. N
O Total sentence 10 months imprisonment. O
P P
Q Q
(D. J. DUFTON)
R District Judge R
S S
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