HKSAR v. Kwok Chun Wai

DCCC 345/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 345 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to a total of 10 charges today. Those charges relate to incidents that occurred on 3 November and later on 7 November of last year, 2015.

2.Broadly stated, on 3 November, the defendant was subject to a stop and search and found to be in possession of drugs.  Those drugs were methamphetamine hydrochloride to a quantity of 0.72 grammes.  He was also found to be in possession of equipment for consumption of that drug, and those form the first two charges the defendant has admitted.

3.There are, of course, a further seven charges that relate to the events of 7 November 2015.  These involve the taking of a light goods vehicle, which the defendant admitted driving, and, in the course of that, because he has no driving licence, he committed the 4th offence, which is driving without a driving licence, and the 5th offence, of using that vehicle without third party insurance.

4.The defendant also stole from that vehicle some items, and that would be the 6th charge.  Whilst the defendant was driving the vehicle he drove it carelessly, and that forms the 7th charge.  After the defendant had parked the vehicle, in the same car park he then went in and tried to steal from another vehicle, and that is the 8th charge.  After leaving that location, the defendant then went to another location at Texaco Road in Tsuen Wan and entered a building as a trespasser, where he went to a number of flats and attempted to enter the individual premises.  Those are the events that constitute the 9th charge.

5.Finally, the defendant was apprehended on the roof of that building, and was found again to be in possession of certain dangerous drugs, and that was again methamphetamine hydrochloride, commonly known as “Ice”, to a quantity of 2.31 grammes of that narcotic.

6.That is a very brief summary of what the defendant did, and the defendant has pleaded guilty to each and every one of those charges and admitted his full responsibility.

7.I will now provide a few more details, because they may well be relevant to sentencing.

8.As far as the drug incident on 3 November is concerned, the defendant said the drugs were for his own consumption, and that was backed up by the fact that he had a method of consuming those drugs, and it would appear from that that the entirety of the drugs in the defendant’s possession were for his own consumption, and no question of latent risk arises in relation to that charge.

9.Dealing with the incidents of 7 November 2015, some further details of that were that the vehicle that was left was a light goods vehicle which was parked at an outdoor car park in Kwai Chung Road in Tsing Yi.  The light goods vehicle was found to be missing and had been parked at another parking space in another car park.

10.The items that were stolen from that vehicle were a cosmetics bag valued at $500, a Smartphone valued at $1,200, the key, valued at $100, some trolleys, and also some certificates and licences in the vehicle that had been taken.  Also, the cost of repairing the vehicle was $1,500.

11.The defendant had driven that vehicle again without a licence, and in mitigation I have been told the defendant never has had a licence, and while he drove that vehicle, he scratched another vehicle, and the damage is described as minor.

12.As far as the second vehicle is concerned that constitutes the facts relating to the 8th charge, in that case, the defendant was disturbed whilst he was in the vehicle, and nothing was actually stolen. However, the defendant did leave behind various items of his own property through which he was able to be identified.

13.I will deal with the further details of the 9th charge, which is the burglary.  The premises is described as a tenement house, and it is located at 23 Texaco Road in Tsuen Wan.  The defendant entered the building in the evening of 7 November, and this is after he had left the car park where he had attempted to steal items from the second light goods vehicle that constitutes the 8th charge.

14.The defendant knocked on the door of a flat, which was Flat C on the 1st floor of the building, told him he suspected that someone had stolen electricity, and demanded to be allowed to check the flat.  He walked around the flat for some five minutes, but then he was asked to leave.  Another resident on the 1st floor of the building at Flat A found a wooden ladder outside her flat.  She found her flat had been ransacked and some items initially placed in it were missing.  Those items, however, were abandoned and found on different storeys of the building.

15.At about 9 o’clock on that evening, the defendant pushed open the door of Flat A on the 2nd floor of the building and told the resident he was a plumber and walked around the flat.  He picked up a Smartphone and was told to put it down.  The defendant had in fact damaged the door lock to that premises and it had cost her $500 to repair it.

16.The defendant went on to Flat C on the 2nd floor of the building, saying he was checking electricity or water meters.  He again acted furtively inside the flat, and he was asked to leave.  The result of that was the matter was then reported to the police.

17.Another resident in Flat B on the 1st floor of the building also found evidence that someone had tried to break into his flat.  He noticed the keyhole was stuck with a metal stick.

18.The defendant, as I have said earlier, was finally located at the rooftop of that premises, where drugs were found on his person, and that was a total of 2.31 grammes again of methamphetamine hydrochloride.

19.Later, in admission, the defendant said that he had bought the drugs for his own consumption, and he had consumed that drug for a number of years three to four times a day.  Again, given the quantity, it seems unlikely that any issue of latent risk would arise in relation to the 10th charge.

20.The defendant’s antecedents have been admitted. He is aged 39.  He has completed Form 1 education in Hong Kong, had various jobs such as construction worker and transportation worker, but had become unemployed by the time of this incident.

21.He has been married, and I am told he is now separated from his wife.  He has a daughter and a son aged 6 years and 4 years old.

22.The defendant has a long and poor criminal record.  He has a total of 33 appearances in court dating back to 1992.  He has 72 convictions.  The convictions are for similar offences to those he has committed in relation to these offences.

23.He has 12 convictions for theft or attempted theft; five for possession of a dangerous drug; one in relation to trafficking in a dangerous drug; seven previous offences for taking a vehicle; four for driving without a licence; six for using a vehicle without insurance; and at least four different previous convictions for burglary.  The defendant was most recently convicted of burglary in 2014 on 18 July of that year, where he received a sentence of 20 months’ imprisonment, 16 months of which were consecutive to other matters.

24.The defendant has received sentences of imprisonment for taking conveyance without authority, for theft of a vehicle, for possession of dangerous drugs, for taking a vehicle, and also for burglary.

25.It is clearly an aggravating factor in relation to these offences that the defendant has committed so many previous offences and has continued to commit offences and clearly shows a failure of deterrence to alter the defendant’s behaviour in the past.

26.I am told in mitigation that the defendant has a deepened interest in vehicles.  That explains his continued convictions for driving offences, especially for taking vehicles.  The defendant has never purchased a vehicle or had a driving licence, but has continued to drive on many occasions, certainly through 1997, when he was first convicted of taking a conveyance without authority.

27.Clearly what has happened in these offences is the defendant has continued to commit the kind of offences he has always committed, and on 7 November committed a number of those offences in series.

28.The defendant is a drug addict.  He is addicted to methamphetamine hydrochloride, or “Ice”, and he has received treatment for his drug addiction on a number of occasions at drug addiction treatment centre.  So far those treatments have not been successful.

29.The defendant acknowledges in mitigation of course that sentences of imprisonment are inevitable for these offences.  He asks the court to be as lenient as possible and also to have regard to the question of the overall totality of the sentences; that the number of offences put this into the serious category, but the offences themselves individually are of a less serious nature.  I think that does apply except perhaps for the 9th charge, the burglary charge, which is a serious offence which is taken seriously by the courts because it involves the invasion of private premises.

30.Having regard to all these factors, including the fact that the defendant has made a clean breast of the matters here - he has admitted everything and has admitted from an early stage in his records of interview, and also made clear that he was going to plead guilty to these offences - having regard to those, I consider the appropriate level of sentencing for this defendant on this occasion is as follows.

31.I will deal with the 1st charge and the 2nd charge first.  These involve the possession of dangerous drugs and the possession of apparatus fit and intended for the inhalation of those drugs.  It has been said that simple possession of a dangerous drug where a non-rehabilitative sentence is appropriate, a starting point for sentence could range between 12 to 18 months’ imprisonment.

32.I look at the defendant’s previous sentencing for these matters.  What I shall do in respect of both Charges 1 and 2 is take a starting point of 15 months’ imprisonment and reduce that to 10 months’ imprisonment for the defendant’s plea of guilty:  Charge 1, a sentence of 10 months; and on Charge 2, a sentence of 10 months’ imprisonment.

33.The 3rd charge involves the taking of the light goods vehicle on 7 November, and that is the vehicle RY-2021.  The defendant has again committed this offence on a number of occasions.  There is no tariff for sentencing in relation to this matter.  It very much depends on the circumstances of the individual cases.  This was, on the defendant’s account, taken for joy-riding, and was left in a car park.

34.I bear in mind the defendant has committed these offences on a number of occasions before.  I will take a starting point for sentence on Charge 3 of 15 months’ imprisonment.  I reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

35.On the 4th charge, that relates to the defendant’s driving of that vehicle without a valid driving licence.  This is an offence that would normally be visited with a fine, but I take into account the defendant probably does not have the means to pay a fine, and also that the driving without a valid driving licence occurred and accompanied the taking of that vehicle dishonestly.

36.I consider a short sentence of imprisonment is appropriate.  I will impose a sentence, after a deduction for plea of guilty, of 7 days’ imprisonment.

37.On the 5th charge, the defendant faces a charge of using that vehicle without third party insurance.  Again, the defendant has committed this offence on a number of occasions in the past.  The maximum sentence that can be imposed on that offence is one of 12 months’ imprisonment and a disqualification.

38.What I shall do is take a starting point of 12 months’ imprisonment, reduce that to 8 months’ imprisonment for the defendant’s plea of guilty, and order a disqualification for driving for 3 years.

39.The 6th charge relates to theft from the vehicle that the defendant drove.  The items are of fairly low value, but again, it is the persistence of this offence that makes it more serious.

40.I will take a starting point for sentence of 15 months’ imprisonment, and reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

41.The 7th charge involved the defendant’s careless driving of the light goods vehicle.  Again, the seriousness of this offence is the offence involving a vehicle that had been dishonestly taken.

42.I shall take a starting point of 6 weeks’ imprisonment and reduce that to 1 month’s imprisonment for the defendant’s plea of guilty.

43.I turn now to the 8th charge, and that is attempt to steal from the light goods vehicle at car parking space No 29 Fu Yin House car park.

44.Again, I take a starting point for sentence of 15 months’ imprisonment and reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

45.The 9th charge is the burglary that was committed at No 23 Texaco Road, Tsuen Wan.  The defendant entered that building as a trespasser, then attempted to steal from there.

46.Offences of this nature, involving the burglary of domestic premises, are subject to guideline sentencing.  A first‑time offender, a person of clear record, who is convicted after trial of this offence, can expect a starting point for sentence of 3 years’ imprisonment; that is, 36 months’ imprisonment.

47.The defendant is not a person of previous clear record.  Although he has pleaded guilty, he will receive a discount for that. The premises themselves were domestic premises and they involved the invasion of those premises, and that reflects the seriousness of this offence.

48.I consider the aggravating factor that I must take into account is the defendant’s previous convictions for this type of offence, especially that in 2014.

49.I will take a starting point of 36 months’ imprisonment.  I will add a further 6 months’ imprisonment to that starting point to reflect this aggravating factor.

50.On the 9th charge, that means the starting point is now 42 months’ imprisonment.  After the defendant’s plea of guilty, that leads to a sentence of 28 months’ imprisonment on the 9th charge.

51.Finally, there is the 10th charge.  That involved the defendant’s possession of a further quantity of methamphetamine hydrochloride again on 7 November 2015.  Again, for reasons I have given earlier, I will take a starting point of 15 months’ imprisonment.  I will reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

52.Naturally, I must now determine an overall sentence for these offences.  These offences were committed independently and could, in theory, all be served consecutively to one another.  That naturally would be inappropriate and lead to far too high a level of sentencing.  I must see these as incidents that occurred on separate days and were a series of what were effectively continuing offending.

53.The overall totality of sentence must reflect that and must also reflect the individual nature of those offences and their persistence.

54.I consider the actual overall sentence that I will impose for this series of offending is one of 38 months’ imprisonment.  I will achieve that by ordering the sentences on Charges 1 to 7 to be served concurrently one to another; also the sentences on Charge 8 to 10 to be served concurrently to one another; but the sentences on Charges 8 to 10 to be served consecutively to 1 to 7.

55.This gives an overall total of 38 months’ imprisonment.