A A
B B
DCCC 539/2021
C [2022] HKDC 97 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 539 OF 2021
F F
G ---------------------------- G
HKSAR
H H
v
I LEE WAI PING (D1) I
CHOY PO LING (D2)
J J
----------------------------
K K
Before: His Honour Judge Tam
L L
Date: 21 January 2022
M Present: Ms Susanna Ku, Counsel on fiat, for HKSAR M
Ms Flora Cheng, instructed by Cheung & Liu, assigned by the
N N
Director of Legal Aid, for the 1st defendant
O Mr Summly Lee, instructed by Alvin Cheng & Rosaline O
Choy, assigned by the Director of Legal Aid, for the
P P
nd
2 defendant
Q Offence: [1] Dangerous driving (危險駕駛) Q
R
[2] Driving motor vehicle without proper control under R
influence of specified illicit drugs (在指明毒品的影響下沒
S S
有妥當控制而駕駛汽車)
T [3] Driving while disqualified (於取消駕駛資格期間駕駛) T
U U
V V
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A A
B B
[4] Using a motor vehicle without third party insurance (沒有
C 第三者保險而使用汽車) C
[5] Possession of a dangerous drug (管有危險藥物)
D D
[6] Possession of dangerous drugs (管有危險藥物)
E E
[7] Possession of arms without a licence (無牌管有槍械)
F [8] Knowingly misleading police officers by giving false F
information (明知地提供虛假資料以誤導警務人員)
G G
[9] - [10] Theft (盜竊罪)
H H
I --------------------------------------- I
REASONS FOR SENTENCE
J J
---------------------------------------
K K
1. D1 and D2 appeared before me and they faced a charge sheet
L L
containing 10 charges as follows.
M M
2. Charge 1 against D1 alone is Dangerous Driving, contrary to
N N
section 37(1) of the Road Traffic Ordinance, Cap 374. Particulars are that
O he, on 6 November 2020, at New Territories, in Hong Kong, drove a private O
car bearing registration mark GE1438 on a road dangerously.
P P
Q 3. Charge 2 against D1 alone is Driving motor vehicle without Q
proper control under influence of specified illicit drugs, contrary to section
R R
39J(1) of the Road Traffic Ordinance, Cap 374. Particulars are that he, on
S 6 November 2020, in Hong Kong, drove a motor vehicle, namely a private S
car bearing registration mark GE1438, on a road while he was under the
T T
influence of specified illicit drugs, namely cocaine, benzoylecgonine (a
U U
V V
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A A
B B
metabolite derived from cocaine), ketamine and methamphetamine to such
C an extent as to be incapable of having proper control of the said motor C
vehicle.
D D
E 4. Charge 3 against D1 alone is Driving while disqualified, E
contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374.
F F
Particulars are that he, on 6 November 2020, in Hong Kong, being a person
G who was disqualified from holding or obtaining a driving licence, while he G
was disqualified, drove a motor vehicle, namely a private car bearing
H H
registration mark GE1438, on a road.
I I
5. Charge 4 against D1 alone is Using a motor vehicle without
J J
third party insurance, contrary to section 4(1) and (2)(a) of the Motor
K Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. Particulars K
are that he, on 6 November 2020, in Hong Kong, used a motor vehicle,
L L
namely a private car bearing registration mark GE1438 on a road when
M there was not in force in relation to the user thereof by him such a policy M
of insurance or such a security in respect of third party risks as complied
N N
with the requirements of the Motor Vehicles Insurance (Third Party Risks)
O Ordinance, Cap 272. O
P P
6. Charge 5 against D1 alone is Possession of a dangerous drug,
Q contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Q
Cap 134. Particulars are that he, on 6 November 2020, at Ground Floor,
R R
Foon Tak Building, No 40 Shing Fong Street, Kwai Chung, New
S Territories, in Hong Kong, had in his possession a dangerous drug, namely S
0.53 gramme of a solid containing 0.46 gramme of ketamine.
T T
U U
V V
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A A
B B
7. Charge 6 against D1 alone is Possession of dangerous drugs,
C contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, C
Cap 134. Particulars are that he, on 6 November 2020, on a private car
D D
bearing registration mark GE1438, near Lamppost No DC0109A, Hing
E Fong Road, Kwai Chung, New Territories, in Hong Kong, had in his E
possession dangerous drugs, namely 0.16 gramme of a solid containing
F F
0.14 gramme of cocaine, 2.46 grammes of a solid containing 2.12 grammes
G of ketamine, 0.05 gramme of a crystalline solid containing G
methamphetamine hydrochloride, and 0.06 gramme of a solid containing
H H
ketamine and methamphetamine.
I I
8. Charge 7 against D1 alone is Possession of arms without a
J J
licence, contrary to section 13(1) and (2) of the Firearms and Ammunition
K Ordinance, Cap 238. Particulars are that he, on a private car bearing K
registration mark GE1438, near Lamppost No DC0109A, Hing Fong Road,
L L
Kwai Chung, New Territories, in Hong Kong, had in his possession arms,
M namely one can of pepper spray, without a licence. M
N N
9. Charge 8 against D2 alone is Knowingly misleading police
O officers by giving false information, contrary to section 64(b) of the Police O
Force Ordinance, Cap 232. Particulars are that she, on 6 November 2020,
P P
near Lamppost No DC0109A, Hing Fong Road, Kwai Chung, New
Q Territories, in Hong Kong, knowingly misled Police Constable 11801 and Q
Woman Police Constable 16132, police officers of the Hong Kong Police
R R
Force, by giving false information, namely that D2 claimed to be Li Tsz
S Ching and presented an Acknowledgement of Application for a Hong S
Kong Permanent Identity Card in the name of the said Li Tsz Ching.
T T
U U
V V
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A A
B B
10. Charge 9 against D2 alone is Theft, contrary to section 9 of
C the Theft Ordinance, Cap 210. Particulars are that she, on a day unknown C
in October 2020, in Hong Kong, stole one Hong Kong Identity Card,
D D
property belonging to Li Tsz Ching.
E E
11. Charge 10 against D2 alone is Theft, contrary to section 9 of
F F
the Theft Ordinance, Cap 210. Particulars are that she, on or about
G 1 November 2020, in Hong Kong, stole one Acknowledgement of G
Application for a Hong Kong Permanent Identity Card, property belonging
H H
to Li Tsz Ching.
I I
12. D1 pleaded guilty to all charges against him namely
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Charges 1 to 7.
K K
13. D2 pleaded guilty to all charges against her namely Charges
L L
8 to 10.
M M
Facts admitted by D1 and D2
N N
O Charge 1 O
P P
14. On 6 November 2020, at about 11:55 am, police constables
Q PW1 and PW2 were conducting Automatic Number Plate Recognition Q
(“ANPR”) on a police vehicle along the 1st lane of Tuen Mun Road
R R
connecting Tsuen Wan Road (towards Kowloon). The ANPR system
S recognized that the owner of a private car GE1438 (“V”) travelling on the S
2nd lane, later known to be D1, has been disqualified from driving.
T T
U U
V V
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A A
B B
15. PW1 thus requested V to stop at the hatched area between the
C 1st and 2nd lanes on Tsuen Wan Road (Southbound) near Tsuen Tsing C
Interchange. The relevant section of Tsuen Wan Road (Southbound) has
D D
3 lanes. V first slowed down to about 20 km/h and was about to stop at the
E hatched area, but it suddenly swerved to the right, accelerated to about E
100 km/h, and continued to travel along Tsuen Wan Road. The police gave
F F
chase and kept requesting V to stop.
G G
16. During the chase, V kept overtaking other vehicles at around
H H
120 km/h by switching lanes back and forth multiple times. After passing
I Tsuen Tsing Interchange, Tsuen Wan Road (Southbound) has two lanes I
and there are double white lines on the road. The line nearer to the right
J J
lane is solid, while the line nearer to the left lane is broken, indicating that
K switching lanes from left to right is permissible but not vice versa. The K
speed limit of the road is 70 km/h.
L L
M 17. After a while, V turned left to Hing Fong Road (Eastbound), M
Kwai Chung, and approached the junction with Kwai Fuk Road (“the
N N
Junction”). There are 6 lanes on Hing Fong Road (Eastbound) right before
O the Junction. The 2nd lane is for left turn, and the 3rd is for traffic going O
ahead. There is a hatched area between the 2 nd and 3rd lanes. V was
P P
rd
travelling on the 3 lane of Hing Fong Road (Eastbound) at that time, and
Q the relevant vehicular signal was red. There was another car (“the Car”) Q
stopped in front of the Junction on the third lane. However, V did not stop.
R R
It overtook the Car on its left by entering the said hatched area. The
S nearside front of the Car was hit by V as a result. V then travelled against S
the red traffic signal and crossed the Junction.
T T
U U
V V
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A A
B B
18. V subsequently stopped near Lamppost No DC0109A, Hing
C Fong Road (Eastbound). D1 then got out from the driver’s seat of V and C
fled. PW1 also alighted and gave chase.
D D
E Charge 8 E
F F
19. In the meantime, D2 got out from the front passenger seat of
G V and was intercepted by PW2. A woman police constable PW3 later G
arrived at the scene. Upon enquiry, D2 claimed to be Li Tsz Ching and
H H
presented an Acknowledgement of Application for a Hong Kong
I Permanent Identity Card in the name of Li Tsz Ching (“the I
Acknowledgement”).
J J
K Charge 5 K
L L
20. D1 was subsequently intercepted by PW1 at Ground Floor,
M Foon Tak Building, No 40 Shing Fong Street, Kwai Chung. PW1 found a M
transparent resealable plastic bag containing 0.53 gramme of a solid
N N
containing 0.46 gramme of ketamine (“E1”) on the floor near D1. E1 was
O about 50 cm apart from D1. O
P P
Arrest for Charges 1 & 5
Q Q
21. PW1 thus arrested D1 for “Dangerous driving” and
R R
“Possession of a dangerous drug”. Under caution, D1 admitted he was
S speeding. S
T T
U U
V V
-8-
A A
B B
Charges 3 & 4
C C
22. D1 was confirmed to be disqualified from driving. D1 was
D D
disqualified from holding or obtaining a driving licence for all classes of
E vehicles for 6 months from 6 October 2020 in FLCC 1815/2020. D1 was E
also disqualified from holding or obtaining a driving licence for all classes
F F
of vehicles for 12 months from 21 October 2020 in KCS 519754/2020.
G PW1 thus further arrested D1 for “Driving while disqualified” and “Using G
a motor vehicle without third party insurance”. Under caution, D1 said that
H H
he knew he was disqualified from driving.
I I
Charge 2
J J
K 23. A Drug Influence Recognition Observation was also carried K
out, and PW2 was of the view that D1 was under the influence of drugs.
L L
D1’s eyes were red, and his movement was slow. D1 had to find support
M to keep his balance. PW2 thus arrested D1 for “Driving under the influence M
of drugs”.
N N
O 24. With D1’s consent, his blood sample was taken later on the O
same day and sent to the Government Laboratory for analysis. The result
P P
revealed that his blood sample contained traces of cocaine, 0.44
Q microgramme/ml of benzoylecgonine (a metabolite derived from cocaine), Q
0.02 microgramme/ml of ecgonine methyl ester (a metabolite derived from
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cocaine), 0.1 microgramme/ml of ketamine and 0.27 microgramme/ml of
S methamphetamine. S
T T
U U
V V
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A A
B B
Charges 6 & 7
C C
25. Around 1:15 pm of the same day (6 November), V was
D D
searched. The following items were found in it:-
E E
(a) A transparent resealable plastic bag containing 0.16
F F
gramme of a solid containing 0.14 gramme of cocaine
G (“E2”) on the floor in front of the driver’s seat; G
H H
(b) A piece of plastic tape containing 0.06 gramme of a
I solid containing ketamine and methamphetamine (“E3”) I
in the storage compartment next to the steering wheel;
J J
K (c) A can of pepper spray (“E4”) in the storage K
compartment at the offside front door;
L L
M (d) A doll pouch which contained a transparent resealable M
plastic bag containing 0.05 gramme of a crystalline
N N
solid containing methamphetamine hydrochloride
O (“E5”) in the glove box in front of the front passenger O
seat; and
P P
Q (e) Two transparent resealable plastic bags containing a Q
total of 1.97 grammes of a solid containing 1.71
R R
grammes of ketamine (“E6”) in the said glove box.
S S
T T
U U
V V
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A A
B B
26. The following items were also found in D1’s clutch bag
C placed on the front passenger seat of V:- C
D D
(a) A paper packet containing 0.02 gramme of a solid
E containing ketamine (“E7”); E
F F
(b) A plastic tube containing traces of a solid containing
G ketamine (“E8”); and G
H H
(c) A transparent resealable plastic bag containing 0.47
I gramme of a solid containing 0.41 gramme of ketamine I
(“E9”).
J J
K 27. At around 2:25 pm on the same day, PW1 further arrested D1 K
for “Possession of dangerous drugs”. Under caution, D1 said he had
L L
bought V for about 2 months and he was unfamiliar with the items therein.
M M
28. D2 was arrested by PW3.
N N
O 29. PW7 Yeung, the previous owner of V, confirmed that when O
he sold V to D1 in August 2020, he had cleared all his personal belongings
P P
from it beforehand.
Q Q
R R
S S
T T
U U
V V
- 11 -
A A
B B
D1’s VRI
C C
1
30. In a cautioned VRI conducted on 7 November 2020 , D1
D D
stated:-
E E
(a) He had been disqualified from driving since October
F F
2020 due to speeding and drink driving;
G G
(b) He had not tidied up V since he bought it;
H H
I (c) He had bought V for about 2 months; I
J J
(d) D2 was the girlfriend of his friend;
K K
(e) He knew he had been disqualified from driving and so
L L
he accelerated and escaped from the police; and
M M
(f) In the course of the escape, V slightly hit another
N N
private car stopped on the road.
O O
Charges 9 & 10
P P
Q 31. Upon fingerprint comparison, D2’s real identity was unveiled. Q
Li Tsz Ching was located. She was acquainted with D2. Between
R R
September and October 2020, Li found her Identity Card missing. She then
S applied for Identity Card replacement on 30 October 2020 and obtained the S
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1
The year reference “2020” was inadvertently omitted at the time of delivery.
U U
V V
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A A
B B
Acknowledgement. Li only discovered the Acknowledgement went
C missing when she was contacted by the police about this case. C
D D
D2’s VRI
E E
32. In a cautioned VRI conducted on 7 November 2020, D2 stated
F F
that:-
G G
(a) She kept Li’s identity document because she was
H H
wanted;
I I
(b) Li was her friend;
J J
K (c) She took away Li’s Identity Card in early October 2020 K
when she helped to hold Li’s bag;
L L
M (d) She lost Li’s Identity Card in late October 2020; and M
N N
(e) She also took away the Acknowledgement on 1 or 2
O November 2020 after Li had applied for Identity Card O
replacement.
P P
Q D1’s present admissions Q
R R
33. D1 now admits that he was driving V on a road while he was
S under the influence of specified illicit drugs to such an extent as to be S
incapable of having proper control of V.
T T
U U
V V
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A A
B B
34. D1 now admits he was using V on a road without third party
C insurance. C
D D
35. D1 now admits he had in his possession a can of pepper spray
E without a licence. E
F F
Criminal and Road Traffic records
G G
36. D1 has 7 previous criminal convictions one of which was
H H
Trafficking in dangerous drug(s) (2014) and three of which were related to
I driving/using a motor vehicle (October 2020) including one drink driving. I
J J
37. D1 has 9 other road traffic convictions including 2 x careless
K driving and 2 x Using a vehicle without insurance. K
L L
38. D2 has 4 previous convictions none similar.
M M
Antecedents
N N
O 39. D1 is aged 38 (37 at the time of the offences), educated to F5 O
level, unemployed but has previously worked as a warehouse worker and
P P
construction site worker. He was last discharged from prison on
Q 27 December 2017. D1 is single and was living with his parents in public Q
housing in Siu Lek Yuen, Shatin.
R R
S 40. D2 is aged 32 (31 at the time of the offences), educated to S
junior secondary level, unemployed but has previously worked as a
T T
U U
V V
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A A
B B
saleslady and waitress. D2 is single and was living with her parents in
C private housing in Yuen Long. C
D D
Mitigation
E E
D1
F F
G 41. Ms Flora Cheng of counsel assigned by the Director of Legal G
Aid mitigated on behalf of D1. The following is a summary of the
H H
mitigation submissions.
I I
42. D1 is a certified skilled worker in metal scaffolding. From
J J
January 2020, D1 could not find construction work due to Covid-19. He
K then turned to become a warehouse attendant. He then became K
unemployed towards the end of March 2020. From then on, he lived on
L L
savings and support from his family members.
M M
43. D1 and D2 had been friends for years. In the morning of the
N N
offence date, D2 asked D1 to drive her from Tuen Mun to Kowloon to
O handle an urgent matter. D1 was reluctant at first because he was under O
disqualification from driving. However, he later acceded because of
P P
repeated requests.
Q Q
44. When the police signaled him to stop, D1 initially slowed
R R
down but then sped because of panic. His only thought was to get away.
S Luckily no one was injured. After he was arrested, he calmed down and S
realized how wrong he was. He admitted his misdeeds under caution and
T T
cooperated with the police throughout.
U U
V V
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A A
B B
C 45. D1 had the habit of taking dangerous drugs and those drugs C
found were for his own consumption. He is no longer dependent on drugs
D D
because of the long time in custody.
E E
46. Regarding the pepper spray, it was purchased online not long
F F
ago for protection of his girlfriend (not D2). Before he had the chance to
G give it to her, he was arrested. It has never been used and it is the least G
lethal form of “arms”
H H
I 47. The greatest mitigation is the pleas of guilty which reflect I
D1’s remorse. D1 accepts that for all of the offences, he will have to face
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custodial sentence.
K K
48. Ms Cheng urged the court to allow D1 the usual 1/3 discount,
L L
and submitted that the offences subject of Charges 1 to 7 were committed
M closely in time under the same circumstances. Ms Cheng asked the court M
to consider the totality principle and to pass a lenient sentence.
N N
O 49. Ms Cheng offered no special reasons as to why the usual O
disqualification orders etc should not be imposed.
P P
Q 50. Ms Cheng submitted 2 mitigation letters written respectively Q
by D1 himself and a Deacon together with an employment certificate (with
R R
English translation, where applicable). The contents of the letters are
S generally that D1 feels remorseful and promises to amend his ways and S
that a shorter sentence is asked for so to enable him to start a new life earlier.
T T
U U
V V
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A A
B B
D2
C C
51. Mr Summly Lee of counsel assigned by the Director of Legal
D D
Aid mitigated on behalf of D2. The following is a summary of the
E mitigation submissions. E
F F
52. D2 is a single parent and she raised her son (now 16) solely
G with the help of her mother while D2 was able to secure a full-time job in G
order to support her son, her parents (father in elderly home) and her two
H H
younger siblings. However, D2 was laid off in the first quarter of 2020 due
I to Covid-19. D2’s last employment before arrest was as a part-time shop I
assistant in Japanese fast food chain with a monthly salary of about $11,000.
J J
At present, D2’s younger sister (29) and younger brother (27) are both
K working. K
L L
53. The background to the offences is that a warrant of arrest had
M been issued for her failure to attend court for an earlier possession of M
dangerous drug case of 2018. In order to hide her real identity in case of
N N
police enquiry, she stole the HKID card from a close friend Ms Li.
O O
54. Ms Li later discovered the loss and asked D2 for the
P P
replacement procedure. D2 then accompanied Ms Li to the Immigration
Q Office to apply for a replacement. Thereafter, D2 stole the Q
Acknowledgement of Application and kept it to herself. On the day of
R R
offence, D2 produced the Acknowledgement to the police when asked for
S identity. S
T T
U U
V V
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A A
B B
55. There is no sentencing guideline for the offences committed
C by D2. Each case depends on its own facts. C
D D
56. For “knowingly misleading the police”, the maximum penalty
E is 6 months’ imprisonment. E
F F
57. For Charge 8, Mr Lee referred to two District Court
G sentencing cases namely HKSAR v Ng Wing Lun, DCCC 1111/2016 (in G
Chinese); and HKSAR v Lau Man To, DCCC 872/2010.
H H
I 58. For Charges 9 & 10, Mr Lee referred to one District Court I
sentencing case namely HKSAR v Lau Chi Wah, DCCC 68/2021 (in
J J
Chinese).
K K
59. Mr Lee identified one aggravating factor in the present case
L L
namely, D2 produced the stolen Acknowledgement with the dishonest
M intent to mislead the police regarding her true identity in order to evade a M
warrant of arrest. Mr Lee added that the aggravating factor also applied to
N N
the two thefts because when D2 stole the two items, she had their future
O use in mind. O
P P
60. D2 committed the offences out of naivety and stupidity. Her
Q timely pleas show her genuine remorse. She wishes to turn over a new leaf. Q
R R
61. Mr Lee urges the court to take into account the totality
S principle and to pass a lenient sentence. S
T T
U U
V V
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A A
B B
62. Mr Lee urged the court not to tailor the sentence on Charges
C 8 and 9 by reference to the usual sentence for possession of ID card relating C
to another.
D D
E 63. Mr Lee submitted three mitigation letters in Chinese written E
respectively by D2, her son and her sugar-elder-sister. The contents are
F F
generally that D2 has reflected on her past and is regretful and wishes to
G re-integrate into society; that she promises not to re-offend. All writers G
asked for a lenient sentence so that D2 could reunite with her family earlier.
H H
I Sentence I
J J
D1
K K
64. D1 pleaded guilty in good time for which he shall be entitled
L L
to the full 1/3 discount on prison sentences. There are no other mitigating
M factors of weight to justify any further reduction. M
N N
Charge 1
O O
65. According to the facts, this is a case of serious dangerous
P P
driving. D1 drove at speeds between 100 and 120 km/h on a road with
Q speed limit of 70 km/h in broad daylight in order to evade police Q
interception. D1 was switching between lanes, sometimes in breach of
R R
road markings, in order to overtake other vehicles. At the later stage of the
S police chase, D1 then overtook a stationary car by going into a hatched area S
on the car’s left and whilst doing so, partially collided with the car’s
T T
nearside before crossing a junction against the red traffic signal.
U U
V V
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A A
B B
C 66. The fact that there were specified illicit drugs in D1’s blood C
is a circumstance of aggravation, as per section 37(2D) & (2E)(b) of Cap
D D
374.
E E
67. In light of the circumstance of aggravation, the maximum
F F
prison sentence for a dangerous driving offence is one of 4 ½ years. In
G D1’s case, I shall adopt a starting point of 3 ½ years. G
H H
68. In light of the circumstance of aggravation, the minimum
I disqualification from driving period is increased to 9 months. Such period I
of disqualification and the taking of a driving improvement course are
J J
mandatory unless special reasons exist.
K K
69. I therefore make a disqualification order for all classes of
L L
vehicle against D1 for a period of 9 months. I do not make an order for a
M driving improvement course under this charge because of section 72A(1B) M
of Cap 374.
N N
O Charge 2 O
P P
70. The maximum prison sentence for a section 39J(1) offence is
Q one of 3 years. Given the serious nature of the facts and the multiplicity of Q
drugs found in D1’s blood sample, I shall adopt a starting point of 2 years.
R R
S 71. Disqualification from driving (normally for not less than S
5 years) and the taking of a driving improvement course are mandatory
T T
unless special reasons exist.
U U
V V
- 20 -
A A
B B
C 72. I therefore make a disqualification order for all classes of C
vehicle against D1 for a period of 5 years (to run concurrently with the
D D
disqualification order made under Charge 1) and I order that he is to attend
E and complete a driving improvement course at his own cost. He shall not E
drive or hold a driving licence again until his disqualification period has
F F
expired and he has attended and completed the driving improving course.
G G
Charge 3
H H
I 73. The maximum prison sentence for a driving while disqualified I
offence is one of 12 months. D1 blatantly disregarded two disqualification
J J
orders imposed shortly before the present offence. For this reason, I shall
K adopt a starting point of 9 months. K
L L
74. Disqualification from driving (normally for not less than
M 12 months) is mandatory unless special reasons exist. The disqualification M
herein shall be in addition to any other period of disqualification ordered
N N
under any other provision of the Road Traffic Ordinance, Cap 374.
O O
75. I therefore make a disqualification order for all classes of
P P
vehicle against D1 for a period of 12 months and it shall run wholly
Q consecutively to other disqualification orders made in this case. Q
R R
Charge 4
S S
76. The maximum prison sentence for a Using a vehicle without
T T
3rd party insurance offence is one of 12 months. D1 has 2 previous similar
U U
V V
- 21 -
A A
B B
convictions one as recent as December 2017. For this reason, I shall adopt
C a starting point of 9 months’ imprisonment. C
D D
77. Disqualification from driving (normally for between
E 12 months and 3 years) is mandatory unless special reasons exist. The E
disqualification herein is deemed to be a disqualification by virtue of a
F F
conviction under the provisions of Cap 374.
G G
78. I therefore make a disqualification order for all classes of
H H
vehicle against D1 for a period of 18 months from the date of conviction.
I I
Charge 5
J J
K 79. For the possession of a small amount of ketamine, I shall K
adopt 6 months’ imprisonment as the starting point.
L L
M Charge 6 M
N N
80. For the possession of this multiplicity of drugs, I shall adopt
O a starting point of 15 months’ imprisonment. I am satisfied the amounts O
are not such as to trigger the latent risk concern of the court.
P P
Q Charge 7 Q
R R
81. The maximum prison sentence for a possession of arms
S without licence offence is one of 14 years. S
T T
U U
V V
- 22 -
A A
B B
82. For D1’s possession of one can of pepper spray, I shall adopt
C a starting point of 6 months’ imprisonment. C
D D
(D1, please stand)
E E
Individual sentences and Summary for D1
F F
G 83. For Charge 1, D1 shall go to prison for 28 months. G
H H
84. For Charge 2, he shall go to prison for 16 months.
I I
85. For Charge 3, he shall go to prison for 6 months.
J J
K 86. For Charge 4, he shall go to prison for 6 months. K
L L
87. For Charge 5, he shall go to prison for 4 months.
M M
88. For Charge 6, he shall go to prison for 10 months.
N N
O 89. For Charge 7, he shall go to prison for 4 months. O
P P
90. Although the offences were committed on the same day
Q within the same set of facts, some such as possession of dangerous drugs Q
are not concomitants of the others eg dangerous driving. Therefore, wholly
R R
concurrent sentences on all of them are out of the question. However, I
S will allow concurrent or partially concurrent sentences whenever S
circumstances permit and also where the totality principle steps in to
T T
prevent an excessive overall sentence.
U U
V V
- 23 -
A A
B B
C 91. As a result, I order that sentences on Charges 1 and 2 are to C
run concurrently with one another as Group A; the sentences on Charges 3
D D
and 4 are to run concurrently with one another as Group B; the sentences
E on Charges 5 and 6 are to run concurrently with one another as Group C. I E
order that 4 months of Group B, 8 months of Group C, and 2 months of the
F F
sentence on Charge 7 are to run consecutively among themselves, and the
G result is to run consecutively to Group A, making an aggregate sentence of G
42 months’ imprisonment.
H H
I 92. As for disqualification orders, the orders made under I
Charges 1 and 2 are to run concurrently among themselves. The
J J
disqualification order made under Charge 3 ie that of 12 months is to run
K consecutively to the disqualification orders under Charges 1 and 2, making K
an aggregate disqualification period of 6 years. Because this case involves
L L
a second and third convictions (Charges 1 & 2) of a relevant scheduled
M offence (the first being a conviction for a section 39A offence in 2020), I M
order that the disqualification orders made under Charges 1, 2 and 3 are
N N
not to start to run until D1 has finished serving the term of imprisonment
O imposed herein and any other term of imprisonment which he might be O
undergoing at the time he finishes serving the first-mentioned term.
P P
Because of the effect of section 4(2)(a) of Cap 272, the disqualification
Q order of 18 months’ duration under Charge 4 has to start to run separately Q
from the date of conviction.
R R
S 93. As for the driving improvement course, D1 is to attend and S
complete it at his own cost within the last 3 months of the overall
T T
disqualification period. D1 cannot drive or hold a driving licence again
U U
V V
- 24 -
A A
B B
until the disqualification periods have expired and he has so attended and
C completed the driving improvement course. C
D D
D2
E E
94. I have considered the sentencing cases referred to by Mr Lee
F F
in mitigation.
G G
95. D2 pleaded guilty in good time and so is entitled to the full
H H
1/3 discount on sentence. There are no other mitigating factors of weight
I to warrant any further reduction. I
J J
Charge 8
K K
96. The maximum penalty being 6 months’ imprisonment, I will
L L
adopt a starting point of 4 ½ months’ imprisonment bearing in mind this is
M a serious form of misrepresentation ie one relating to the identity of the M
person stopped by the police.
N N
O Charges 9 and 10 O
P P
97. I am satisfied the guideline sentence promulgated in HKSAR
Q v Li Chang Li, HCMA 935/2004, for possessing a forged identity card or Q
identity card belonging to another should not be followed, for the simple
R R
reason that that case dealt with the serious problem of illegal workers
S intending to use or actually using the identity card for seeking employment S
in Hong Kong. Such intent is not present in the case involving D2 before
T T
me.
U U
V V
- 25 -
A A
B B
C 98. In sentencing D2, I bear in mind the aggravating factor, C
identified by Mr Lee on behalf of D2, that for both thefts, D2 stole with the
D D
additional dishonest intent to use the document/ instrument to mislead a
E police officer in order to evade the execution of the warrant of arrest. D2 E
acknowledged that a certain level of planning and premeditation was
F F
involved.
G G
99. In the premises, I shall adopt a starting point of 12 months’
H H
imprisonment for each charge.
I I
(D2, please stand)
J J
K Individual sentences and Summary for D2 K
L L
100. For Charge 8, D2 shall go to 3 months.
M M
101. For Charge 9, she shall go to prison for 8 months.
N N
O 102. For Charge 10, she shall go to prison for 8 months. O
P P
103. The 3 offences are completely separate and ought, subject
Q only to totality, to attract consecutive sentences. I will consider totality Q
and will impose the following sentences.
R R
S S
T T
U U
V V
- 26 -
A A
B B
104. I order that 2 months of the sentence on Charge 8 2 , and
C 7 months of the sentence on Charge 93 are to run consecutively between C
themselves, and the result is to run consecutively to the sentence on
D D
Charge 104, making an aggregate sentence of 17 months’ imprisonment.
E E
F F
G G
H H
( Isaac Tam )
District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T 2 T
Charge 8 was inadvertently delivered as Charge 1 and is hereby reinstated.
3
Charge 9 was inadvertently delivered as Charge 2 and is hereby reinstated.
4
Charge 10 was inadvertently delivered as Charge 3 and is hereby reinstated.
U U
V V
A A
B B
DCCC 539/2021
C [2022] HKDC 97 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 539 OF 2021
F F
G ---------------------------- G
HKSAR
H H
v
I LEE WAI PING (D1) I
CHOY PO LING (D2)
J J
----------------------------
K K
Before: His Honour Judge Tam
L L
Date: 21 January 2022
M Present: Ms Susanna Ku, Counsel on fiat, for HKSAR M
Ms Flora Cheng, instructed by Cheung & Liu, assigned by the
N N
Director of Legal Aid, for the 1st defendant
O Mr Summly Lee, instructed by Alvin Cheng & Rosaline O
Choy, assigned by the Director of Legal Aid, for the
P P
nd
2 defendant
Q Offence: [1] Dangerous driving (危險駕駛) Q
R
[2] Driving motor vehicle without proper control under R
influence of specified illicit drugs (在指明毒品的影響下沒
S S
有妥當控制而駕駛汽車)
T [3] Driving while disqualified (於取消駕駛資格期間駕駛) T
U U
V V
-2-
A A
B B
[4] Using a motor vehicle without third party insurance (沒有
C 第三者保險而使用汽車) C
[5] Possession of a dangerous drug (管有危險藥物)
D D
[6] Possession of dangerous drugs (管有危險藥物)
E E
[7] Possession of arms without a licence (無牌管有槍械)
F [8] Knowingly misleading police officers by giving false F
information (明知地提供虛假資料以誤導警務人員)
G G
[9] - [10] Theft (盜竊罪)
H H
I --------------------------------------- I
REASONS FOR SENTENCE
J J
---------------------------------------
K K
1. D1 and D2 appeared before me and they faced a charge sheet
L L
containing 10 charges as follows.
M M
2. Charge 1 against D1 alone is Dangerous Driving, contrary to
N N
section 37(1) of the Road Traffic Ordinance, Cap 374. Particulars are that
O he, on 6 November 2020, at New Territories, in Hong Kong, drove a private O
car bearing registration mark GE1438 on a road dangerously.
P P
Q 3. Charge 2 against D1 alone is Driving motor vehicle without Q
proper control under influence of specified illicit drugs, contrary to section
R R
39J(1) of the Road Traffic Ordinance, Cap 374. Particulars are that he, on
S 6 November 2020, in Hong Kong, drove a motor vehicle, namely a private S
car bearing registration mark GE1438, on a road while he was under the
T T
influence of specified illicit drugs, namely cocaine, benzoylecgonine (a
U U
V V
-3-
A A
B B
metabolite derived from cocaine), ketamine and methamphetamine to such
C an extent as to be incapable of having proper control of the said motor C
vehicle.
D D
E 4. Charge 3 against D1 alone is Driving while disqualified, E
contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374.
F F
Particulars are that he, on 6 November 2020, in Hong Kong, being a person
G who was disqualified from holding or obtaining a driving licence, while he G
was disqualified, drove a motor vehicle, namely a private car bearing
H H
registration mark GE1438, on a road.
I I
5. Charge 4 against D1 alone is Using a motor vehicle without
J J
third party insurance, contrary to section 4(1) and (2)(a) of the Motor
K Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. Particulars K
are that he, on 6 November 2020, in Hong Kong, used a motor vehicle,
L L
namely a private car bearing registration mark GE1438 on a road when
M there was not in force in relation to the user thereof by him such a policy M
of insurance or such a security in respect of third party risks as complied
N N
with the requirements of the Motor Vehicles Insurance (Third Party Risks)
O Ordinance, Cap 272. O
P P
6. Charge 5 against D1 alone is Possession of a dangerous drug,
Q contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Q
Cap 134. Particulars are that he, on 6 November 2020, at Ground Floor,
R R
Foon Tak Building, No 40 Shing Fong Street, Kwai Chung, New
S Territories, in Hong Kong, had in his possession a dangerous drug, namely S
0.53 gramme of a solid containing 0.46 gramme of ketamine.
T T
U U
V V
-4-
A A
B B
7. Charge 6 against D1 alone is Possession of dangerous drugs,
C contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, C
Cap 134. Particulars are that he, on 6 November 2020, on a private car
D D
bearing registration mark GE1438, near Lamppost No DC0109A, Hing
E Fong Road, Kwai Chung, New Territories, in Hong Kong, had in his E
possession dangerous drugs, namely 0.16 gramme of a solid containing
F F
0.14 gramme of cocaine, 2.46 grammes of a solid containing 2.12 grammes
G of ketamine, 0.05 gramme of a crystalline solid containing G
methamphetamine hydrochloride, and 0.06 gramme of a solid containing
H H
ketamine and methamphetamine.
I I
8. Charge 7 against D1 alone is Possession of arms without a
J J
licence, contrary to section 13(1) and (2) of the Firearms and Ammunition
K Ordinance, Cap 238. Particulars are that he, on a private car bearing K
registration mark GE1438, near Lamppost No DC0109A, Hing Fong Road,
L L
Kwai Chung, New Territories, in Hong Kong, had in his possession arms,
M namely one can of pepper spray, without a licence. M
N N
9. Charge 8 against D2 alone is Knowingly misleading police
O officers by giving false information, contrary to section 64(b) of the Police O
Force Ordinance, Cap 232. Particulars are that she, on 6 November 2020,
P P
near Lamppost No DC0109A, Hing Fong Road, Kwai Chung, New
Q Territories, in Hong Kong, knowingly misled Police Constable 11801 and Q
Woman Police Constable 16132, police officers of the Hong Kong Police
R R
Force, by giving false information, namely that D2 claimed to be Li Tsz
S Ching and presented an Acknowledgement of Application for a Hong S
Kong Permanent Identity Card in the name of the said Li Tsz Ching.
T T
U U
V V
-5-
A A
B B
10. Charge 9 against D2 alone is Theft, contrary to section 9 of
C the Theft Ordinance, Cap 210. Particulars are that she, on a day unknown C
in October 2020, in Hong Kong, stole one Hong Kong Identity Card,
D D
property belonging to Li Tsz Ching.
E E
11. Charge 10 against D2 alone is Theft, contrary to section 9 of
F F
the Theft Ordinance, Cap 210. Particulars are that she, on or about
G 1 November 2020, in Hong Kong, stole one Acknowledgement of G
Application for a Hong Kong Permanent Identity Card, property belonging
H H
to Li Tsz Ching.
I I
12. D1 pleaded guilty to all charges against him namely
J J
Charges 1 to 7.
K K
13. D2 pleaded guilty to all charges against her namely Charges
L L
8 to 10.
M M
Facts admitted by D1 and D2
N N
O Charge 1 O
P P
14. On 6 November 2020, at about 11:55 am, police constables
Q PW1 and PW2 were conducting Automatic Number Plate Recognition Q
(“ANPR”) on a police vehicle along the 1st lane of Tuen Mun Road
R R
connecting Tsuen Wan Road (towards Kowloon). The ANPR system
S recognized that the owner of a private car GE1438 (“V”) travelling on the S
2nd lane, later known to be D1, has been disqualified from driving.
T T
U U
V V
-6-
A A
B B
15. PW1 thus requested V to stop at the hatched area between the
C 1st and 2nd lanes on Tsuen Wan Road (Southbound) near Tsuen Tsing C
Interchange. The relevant section of Tsuen Wan Road (Southbound) has
D D
3 lanes. V first slowed down to about 20 km/h and was about to stop at the
E hatched area, but it suddenly swerved to the right, accelerated to about E
100 km/h, and continued to travel along Tsuen Wan Road. The police gave
F F
chase and kept requesting V to stop.
G G
16. During the chase, V kept overtaking other vehicles at around
H H
120 km/h by switching lanes back and forth multiple times. After passing
I Tsuen Tsing Interchange, Tsuen Wan Road (Southbound) has two lanes I
and there are double white lines on the road. The line nearer to the right
J J
lane is solid, while the line nearer to the left lane is broken, indicating that
K switching lanes from left to right is permissible but not vice versa. The K
speed limit of the road is 70 km/h.
L L
M 17. After a while, V turned left to Hing Fong Road (Eastbound), M
Kwai Chung, and approached the junction with Kwai Fuk Road (“the
N N
Junction”). There are 6 lanes on Hing Fong Road (Eastbound) right before
O the Junction. The 2nd lane is for left turn, and the 3rd is for traffic going O
ahead. There is a hatched area between the 2 nd and 3rd lanes. V was
P P
rd
travelling on the 3 lane of Hing Fong Road (Eastbound) at that time, and
Q the relevant vehicular signal was red. There was another car (“the Car”) Q
stopped in front of the Junction on the third lane. However, V did not stop.
R R
It overtook the Car on its left by entering the said hatched area. The
S nearside front of the Car was hit by V as a result. V then travelled against S
the red traffic signal and crossed the Junction.
T T
U U
V V
-7-
A A
B B
18. V subsequently stopped near Lamppost No DC0109A, Hing
C Fong Road (Eastbound). D1 then got out from the driver’s seat of V and C
fled. PW1 also alighted and gave chase.
D D
E Charge 8 E
F F
19. In the meantime, D2 got out from the front passenger seat of
G V and was intercepted by PW2. A woman police constable PW3 later G
arrived at the scene. Upon enquiry, D2 claimed to be Li Tsz Ching and
H H
presented an Acknowledgement of Application for a Hong Kong
I Permanent Identity Card in the name of Li Tsz Ching (“the I
Acknowledgement”).
J J
K Charge 5 K
L L
20. D1 was subsequently intercepted by PW1 at Ground Floor,
M Foon Tak Building, No 40 Shing Fong Street, Kwai Chung. PW1 found a M
transparent resealable plastic bag containing 0.53 gramme of a solid
N N
containing 0.46 gramme of ketamine (“E1”) on the floor near D1. E1 was
O about 50 cm apart from D1. O
P P
Arrest for Charges 1 & 5
Q Q
21. PW1 thus arrested D1 for “Dangerous driving” and
R R
“Possession of a dangerous drug”. Under caution, D1 admitted he was
S speeding. S
T T
U U
V V
-8-
A A
B B
Charges 3 & 4
C C
22. D1 was confirmed to be disqualified from driving. D1 was
D D
disqualified from holding or obtaining a driving licence for all classes of
E vehicles for 6 months from 6 October 2020 in FLCC 1815/2020. D1 was E
also disqualified from holding or obtaining a driving licence for all classes
F F
of vehicles for 12 months from 21 October 2020 in KCS 519754/2020.
G PW1 thus further arrested D1 for “Driving while disqualified” and “Using G
a motor vehicle without third party insurance”. Under caution, D1 said that
H H
he knew he was disqualified from driving.
I I
Charge 2
J J
K 23. A Drug Influence Recognition Observation was also carried K
out, and PW2 was of the view that D1 was under the influence of drugs.
L L
D1’s eyes were red, and his movement was slow. D1 had to find support
M to keep his balance. PW2 thus arrested D1 for “Driving under the influence M
of drugs”.
N N
O 24. With D1’s consent, his blood sample was taken later on the O
same day and sent to the Government Laboratory for analysis. The result
P P
revealed that his blood sample contained traces of cocaine, 0.44
Q microgramme/ml of benzoylecgonine (a metabolite derived from cocaine), Q
0.02 microgramme/ml of ecgonine methyl ester (a metabolite derived from
R R
cocaine), 0.1 microgramme/ml of ketamine and 0.27 microgramme/ml of
S methamphetamine. S
T T
U U
V V
-9-
A A
B B
Charges 6 & 7
C C
25. Around 1:15 pm of the same day (6 November), V was
D D
searched. The following items were found in it:-
E E
(a) A transparent resealable plastic bag containing 0.16
F F
gramme of a solid containing 0.14 gramme of cocaine
G (“E2”) on the floor in front of the driver’s seat; G
H H
(b) A piece of plastic tape containing 0.06 gramme of a
I solid containing ketamine and methamphetamine (“E3”) I
in the storage compartment next to the steering wheel;
J J
K (c) A can of pepper spray (“E4”) in the storage K
compartment at the offside front door;
L L
M (d) A doll pouch which contained a transparent resealable M
plastic bag containing 0.05 gramme of a crystalline
N N
solid containing methamphetamine hydrochloride
O (“E5”) in the glove box in front of the front passenger O
seat; and
P P
Q (e) Two transparent resealable plastic bags containing a Q
total of 1.97 grammes of a solid containing 1.71
R R
grammes of ketamine (“E6”) in the said glove box.
S S
T T
U U
V V
- 10 -
A A
B B
26. The following items were also found in D1’s clutch bag
C placed on the front passenger seat of V:- C
D D
(a) A paper packet containing 0.02 gramme of a solid
E containing ketamine (“E7”); E
F F
(b) A plastic tube containing traces of a solid containing
G ketamine (“E8”); and G
H H
(c) A transparent resealable plastic bag containing 0.47
I gramme of a solid containing 0.41 gramme of ketamine I
(“E9”).
J J
K 27. At around 2:25 pm on the same day, PW1 further arrested D1 K
for “Possession of dangerous drugs”. Under caution, D1 said he had
L L
bought V for about 2 months and he was unfamiliar with the items therein.
M M
28. D2 was arrested by PW3.
N N
O 29. PW7 Yeung, the previous owner of V, confirmed that when O
he sold V to D1 in August 2020, he had cleared all his personal belongings
P P
from it beforehand.
Q Q
R R
S S
T T
U U
V V
- 11 -
A A
B B
D1’s VRI
C C
1
30. In a cautioned VRI conducted on 7 November 2020 , D1
D D
stated:-
E E
(a) He had been disqualified from driving since October
F F
2020 due to speeding and drink driving;
G G
(b) He had not tidied up V since he bought it;
H H
I (c) He had bought V for about 2 months; I
J J
(d) D2 was the girlfriend of his friend;
K K
(e) He knew he had been disqualified from driving and so
L L
he accelerated and escaped from the police; and
M M
(f) In the course of the escape, V slightly hit another
N N
private car stopped on the road.
O O
Charges 9 & 10
P P
Q 31. Upon fingerprint comparison, D2’s real identity was unveiled. Q
Li Tsz Ching was located. She was acquainted with D2. Between
R R
September and October 2020, Li found her Identity Card missing. She then
S applied for Identity Card replacement on 30 October 2020 and obtained the S
T T
1
The year reference “2020” was inadvertently omitted at the time of delivery.
U U
V V
- 12 -
A A
B B
Acknowledgement. Li only discovered the Acknowledgement went
C missing when she was contacted by the police about this case. C
D D
D2’s VRI
E E
32. In a cautioned VRI conducted on 7 November 2020, D2 stated
F F
that:-
G G
(a) She kept Li’s identity document because she was
H H
wanted;
I I
(b) Li was her friend;
J J
K (c) She took away Li’s Identity Card in early October 2020 K
when she helped to hold Li’s bag;
L L
M (d) She lost Li’s Identity Card in late October 2020; and M
N N
(e) She also took away the Acknowledgement on 1 or 2
O November 2020 after Li had applied for Identity Card O
replacement.
P P
Q D1’s present admissions Q
R R
33. D1 now admits that he was driving V on a road while he was
S under the influence of specified illicit drugs to such an extent as to be S
incapable of having proper control of V.
T T
U U
V V
- 13 -
A A
B B
34. D1 now admits he was using V on a road without third party
C insurance. C
D D
35. D1 now admits he had in his possession a can of pepper spray
E without a licence. E
F F
Criminal and Road Traffic records
G G
36. D1 has 7 previous criminal convictions one of which was
H H
Trafficking in dangerous drug(s) (2014) and three of which were related to
I driving/using a motor vehicle (October 2020) including one drink driving. I
J J
37. D1 has 9 other road traffic convictions including 2 x careless
K driving and 2 x Using a vehicle without insurance. K
L L
38. D2 has 4 previous convictions none similar.
M M
Antecedents
N N
O 39. D1 is aged 38 (37 at the time of the offences), educated to F5 O
level, unemployed but has previously worked as a warehouse worker and
P P
construction site worker. He was last discharged from prison on
Q 27 December 2017. D1 is single and was living with his parents in public Q
housing in Siu Lek Yuen, Shatin.
R R
S 40. D2 is aged 32 (31 at the time of the offences), educated to S
junior secondary level, unemployed but has previously worked as a
T T
U U
V V
- 14 -
A A
B B
saleslady and waitress. D2 is single and was living with her parents in
C private housing in Yuen Long. C
D D
Mitigation
E E
D1
F F
G 41. Ms Flora Cheng of counsel assigned by the Director of Legal G
Aid mitigated on behalf of D1. The following is a summary of the
H H
mitigation submissions.
I I
42. D1 is a certified skilled worker in metal scaffolding. From
J J
January 2020, D1 could not find construction work due to Covid-19. He
K then turned to become a warehouse attendant. He then became K
unemployed towards the end of March 2020. From then on, he lived on
L L
savings and support from his family members.
M M
43. D1 and D2 had been friends for years. In the morning of the
N N
offence date, D2 asked D1 to drive her from Tuen Mun to Kowloon to
O handle an urgent matter. D1 was reluctant at first because he was under O
disqualification from driving. However, he later acceded because of
P P
repeated requests.
Q Q
44. When the police signaled him to stop, D1 initially slowed
R R
down but then sped because of panic. His only thought was to get away.
S Luckily no one was injured. After he was arrested, he calmed down and S
realized how wrong he was. He admitted his misdeeds under caution and
T T
cooperated with the police throughout.
U U
V V
- 15 -
A A
B B
C 45. D1 had the habit of taking dangerous drugs and those drugs C
found were for his own consumption. He is no longer dependent on drugs
D D
because of the long time in custody.
E E
46. Regarding the pepper spray, it was purchased online not long
F F
ago for protection of his girlfriend (not D2). Before he had the chance to
G give it to her, he was arrested. It has never been used and it is the least G
lethal form of “arms”
H H
I 47. The greatest mitigation is the pleas of guilty which reflect I
D1’s remorse. D1 accepts that for all of the offences, he will have to face
J J
custodial sentence.
K K
48. Ms Cheng urged the court to allow D1 the usual 1/3 discount,
L L
and submitted that the offences subject of Charges 1 to 7 were committed
M closely in time under the same circumstances. Ms Cheng asked the court M
to consider the totality principle and to pass a lenient sentence.
N N
O 49. Ms Cheng offered no special reasons as to why the usual O
disqualification orders etc should not be imposed.
P P
Q 50. Ms Cheng submitted 2 mitigation letters written respectively Q
by D1 himself and a Deacon together with an employment certificate (with
R R
English translation, where applicable). The contents of the letters are
S generally that D1 feels remorseful and promises to amend his ways and S
that a shorter sentence is asked for so to enable him to start a new life earlier.
T T
U U
V V
- 16 -
A A
B B
D2
C C
51. Mr Summly Lee of counsel assigned by the Director of Legal
D D
Aid mitigated on behalf of D2. The following is a summary of the
E mitigation submissions. E
F F
52. D2 is a single parent and she raised her son (now 16) solely
G with the help of her mother while D2 was able to secure a full-time job in G
order to support her son, her parents (father in elderly home) and her two
H H
younger siblings. However, D2 was laid off in the first quarter of 2020 due
I to Covid-19. D2’s last employment before arrest was as a part-time shop I
assistant in Japanese fast food chain with a monthly salary of about $11,000.
J J
At present, D2’s younger sister (29) and younger brother (27) are both
K working. K
L L
53. The background to the offences is that a warrant of arrest had
M been issued for her failure to attend court for an earlier possession of M
dangerous drug case of 2018. In order to hide her real identity in case of
N N
police enquiry, she stole the HKID card from a close friend Ms Li.
O O
54. Ms Li later discovered the loss and asked D2 for the
P P
replacement procedure. D2 then accompanied Ms Li to the Immigration
Q Office to apply for a replacement. Thereafter, D2 stole the Q
Acknowledgement of Application and kept it to herself. On the day of
R R
offence, D2 produced the Acknowledgement to the police when asked for
S identity. S
T T
U U
V V
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A A
B B
55. There is no sentencing guideline for the offences committed
C by D2. Each case depends on its own facts. C
D D
56. For “knowingly misleading the police”, the maximum penalty
E is 6 months’ imprisonment. E
F F
57. For Charge 8, Mr Lee referred to two District Court
G sentencing cases namely HKSAR v Ng Wing Lun, DCCC 1111/2016 (in G
Chinese); and HKSAR v Lau Man To, DCCC 872/2010.
H H
I 58. For Charges 9 & 10, Mr Lee referred to one District Court I
sentencing case namely HKSAR v Lau Chi Wah, DCCC 68/2021 (in
J J
Chinese).
K K
59. Mr Lee identified one aggravating factor in the present case
L L
namely, D2 produced the stolen Acknowledgement with the dishonest
M intent to mislead the police regarding her true identity in order to evade a M
warrant of arrest. Mr Lee added that the aggravating factor also applied to
N N
the two thefts because when D2 stole the two items, she had their future
O use in mind. O
P P
60. D2 committed the offences out of naivety and stupidity. Her
Q timely pleas show her genuine remorse. She wishes to turn over a new leaf. Q
R R
61. Mr Lee urges the court to take into account the totality
S principle and to pass a lenient sentence. S
T T
U U
V V
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A A
B B
62. Mr Lee urged the court not to tailor the sentence on Charges
C 8 and 9 by reference to the usual sentence for possession of ID card relating C
to another.
D D
E 63. Mr Lee submitted three mitigation letters in Chinese written E
respectively by D2, her son and her sugar-elder-sister. The contents are
F F
generally that D2 has reflected on her past and is regretful and wishes to
G re-integrate into society; that she promises not to re-offend. All writers G
asked for a lenient sentence so that D2 could reunite with her family earlier.
H H
I Sentence I
J J
D1
K K
64. D1 pleaded guilty in good time for which he shall be entitled
L L
to the full 1/3 discount on prison sentences. There are no other mitigating
M factors of weight to justify any further reduction. M
N N
Charge 1
O O
65. According to the facts, this is a case of serious dangerous
P P
driving. D1 drove at speeds between 100 and 120 km/h on a road with
Q speed limit of 70 km/h in broad daylight in order to evade police Q
interception. D1 was switching between lanes, sometimes in breach of
R R
road markings, in order to overtake other vehicles. At the later stage of the
S police chase, D1 then overtook a stationary car by going into a hatched area S
on the car’s left and whilst doing so, partially collided with the car’s
T T
nearside before crossing a junction against the red traffic signal.
U U
V V
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A A
B B
C 66. The fact that there were specified illicit drugs in D1’s blood C
is a circumstance of aggravation, as per section 37(2D) & (2E)(b) of Cap
D D
374.
E E
67. In light of the circumstance of aggravation, the maximum
F F
prison sentence for a dangerous driving offence is one of 4 ½ years. In
G D1’s case, I shall adopt a starting point of 3 ½ years. G
H H
68. In light of the circumstance of aggravation, the minimum
I disqualification from driving period is increased to 9 months. Such period I
of disqualification and the taking of a driving improvement course are
J J
mandatory unless special reasons exist.
K K
69. I therefore make a disqualification order for all classes of
L L
vehicle against D1 for a period of 9 months. I do not make an order for a
M driving improvement course under this charge because of section 72A(1B) M
of Cap 374.
N N
O Charge 2 O
P P
70. The maximum prison sentence for a section 39J(1) offence is
Q one of 3 years. Given the serious nature of the facts and the multiplicity of Q
drugs found in D1’s blood sample, I shall adopt a starting point of 2 years.
R R
S 71. Disqualification from driving (normally for not less than S
5 years) and the taking of a driving improvement course are mandatory
T T
unless special reasons exist.
U U
V V
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A A
B B
C 72. I therefore make a disqualification order for all classes of C
vehicle against D1 for a period of 5 years (to run concurrently with the
D D
disqualification order made under Charge 1) and I order that he is to attend
E and complete a driving improvement course at his own cost. He shall not E
drive or hold a driving licence again until his disqualification period has
F F
expired and he has attended and completed the driving improving course.
G G
Charge 3
H H
I 73. The maximum prison sentence for a driving while disqualified I
offence is one of 12 months. D1 blatantly disregarded two disqualification
J J
orders imposed shortly before the present offence. For this reason, I shall
K adopt a starting point of 9 months. K
L L
74. Disqualification from driving (normally for not less than
M 12 months) is mandatory unless special reasons exist. The disqualification M
herein shall be in addition to any other period of disqualification ordered
N N
under any other provision of the Road Traffic Ordinance, Cap 374.
O O
75. I therefore make a disqualification order for all classes of
P P
vehicle against D1 for a period of 12 months and it shall run wholly
Q consecutively to other disqualification orders made in this case. Q
R R
Charge 4
S S
76. The maximum prison sentence for a Using a vehicle without
T T
3rd party insurance offence is one of 12 months. D1 has 2 previous similar
U U
V V
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A A
B B
convictions one as recent as December 2017. For this reason, I shall adopt
C a starting point of 9 months’ imprisonment. C
D D
77. Disqualification from driving (normally for between
E 12 months and 3 years) is mandatory unless special reasons exist. The E
disqualification herein is deemed to be a disqualification by virtue of a
F F
conviction under the provisions of Cap 374.
G G
78. I therefore make a disqualification order for all classes of
H H
vehicle against D1 for a period of 18 months from the date of conviction.
I I
Charge 5
J J
K 79. For the possession of a small amount of ketamine, I shall K
adopt 6 months’ imprisonment as the starting point.
L L
M Charge 6 M
N N
80. For the possession of this multiplicity of drugs, I shall adopt
O a starting point of 15 months’ imprisonment. I am satisfied the amounts O
are not such as to trigger the latent risk concern of the court.
P P
Q Charge 7 Q
R R
81. The maximum prison sentence for a possession of arms
S without licence offence is one of 14 years. S
T T
U U
V V
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A A
B B
82. For D1’s possession of one can of pepper spray, I shall adopt
C a starting point of 6 months’ imprisonment. C
D D
(D1, please stand)
E E
Individual sentences and Summary for D1
F F
G 83. For Charge 1, D1 shall go to prison for 28 months. G
H H
84. For Charge 2, he shall go to prison for 16 months.
I I
85. For Charge 3, he shall go to prison for 6 months.
J J
K 86. For Charge 4, he shall go to prison for 6 months. K
L L
87. For Charge 5, he shall go to prison for 4 months.
M M
88. For Charge 6, he shall go to prison for 10 months.
N N
O 89. For Charge 7, he shall go to prison for 4 months. O
P P
90. Although the offences were committed on the same day
Q within the same set of facts, some such as possession of dangerous drugs Q
are not concomitants of the others eg dangerous driving. Therefore, wholly
R R
concurrent sentences on all of them are out of the question. However, I
S will allow concurrent or partially concurrent sentences whenever S
circumstances permit and also where the totality principle steps in to
T T
prevent an excessive overall sentence.
U U
V V
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A A
B B
C 91. As a result, I order that sentences on Charges 1 and 2 are to C
run concurrently with one another as Group A; the sentences on Charges 3
D D
and 4 are to run concurrently with one another as Group B; the sentences
E on Charges 5 and 6 are to run concurrently with one another as Group C. I E
order that 4 months of Group B, 8 months of Group C, and 2 months of the
F F
sentence on Charge 7 are to run consecutively among themselves, and the
G result is to run consecutively to Group A, making an aggregate sentence of G
42 months’ imprisonment.
H H
I 92. As for disqualification orders, the orders made under I
Charges 1 and 2 are to run concurrently among themselves. The
J J
disqualification order made under Charge 3 ie that of 12 months is to run
K consecutively to the disqualification orders under Charges 1 and 2, making K
an aggregate disqualification period of 6 years. Because this case involves
L L
a second and third convictions (Charges 1 & 2) of a relevant scheduled
M offence (the first being a conviction for a section 39A offence in 2020), I M
order that the disqualification orders made under Charges 1, 2 and 3 are
N N
not to start to run until D1 has finished serving the term of imprisonment
O imposed herein and any other term of imprisonment which he might be O
undergoing at the time he finishes serving the first-mentioned term.
P P
Because of the effect of section 4(2)(a) of Cap 272, the disqualification
Q order of 18 months’ duration under Charge 4 has to start to run separately Q
from the date of conviction.
R R
S 93. As for the driving improvement course, D1 is to attend and S
complete it at his own cost within the last 3 months of the overall
T T
disqualification period. D1 cannot drive or hold a driving licence again
U U
V V
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A A
B B
until the disqualification periods have expired and he has so attended and
C completed the driving improvement course. C
D D
D2
E E
94. I have considered the sentencing cases referred to by Mr Lee
F F
in mitigation.
G G
95. D2 pleaded guilty in good time and so is entitled to the full
H H
1/3 discount on sentence. There are no other mitigating factors of weight
I to warrant any further reduction. I
J J
Charge 8
K K
96. The maximum penalty being 6 months’ imprisonment, I will
L L
adopt a starting point of 4 ½ months’ imprisonment bearing in mind this is
M a serious form of misrepresentation ie one relating to the identity of the M
person stopped by the police.
N N
O Charges 9 and 10 O
P P
97. I am satisfied the guideline sentence promulgated in HKSAR
Q v Li Chang Li, HCMA 935/2004, for possessing a forged identity card or Q
identity card belonging to another should not be followed, for the simple
R R
reason that that case dealt with the serious problem of illegal workers
S intending to use or actually using the identity card for seeking employment S
in Hong Kong. Such intent is not present in the case involving D2 before
T T
me.
U U
V V
- 25 -
A A
B B
C 98. In sentencing D2, I bear in mind the aggravating factor, C
identified by Mr Lee on behalf of D2, that for both thefts, D2 stole with the
D D
additional dishonest intent to use the document/ instrument to mislead a
E police officer in order to evade the execution of the warrant of arrest. D2 E
acknowledged that a certain level of planning and premeditation was
F F
involved.
G G
99. In the premises, I shall adopt a starting point of 12 months’
H H
imprisonment for each charge.
I I
(D2, please stand)
J J
K Individual sentences and Summary for D2 K
L L
100. For Charge 8, D2 shall go to 3 months.
M M
101. For Charge 9, she shall go to prison for 8 months.
N N
O 102. For Charge 10, she shall go to prison for 8 months. O
P P
103. The 3 offences are completely separate and ought, subject
Q only to totality, to attract consecutive sentences. I will consider totality Q
and will impose the following sentences.
R R
S S
T T
U U
V V
- 26 -
A A
B B
104. I order that 2 months of the sentence on Charge 8 2 , and
C 7 months of the sentence on Charge 93 are to run consecutively between C
themselves, and the result is to run consecutively to the sentence on
D D
Charge 104, making an aggregate sentence of 17 months’ imprisonment.
E E
F F
G G
H H
( Isaac Tam )
District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T 2 T
Charge 8 was inadvertently delivered as Charge 1 and is hereby reinstated.
3
Charge 9 was inadvertently delivered as Charge 2 and is hereby reinstated.
4
Charge 10 was inadvertently delivered as Charge 3 and is hereby reinstated.
U U
V V