HKSAR v. Lau Man-hei

DCCC 126/2018

[2018] HKDC 1283

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 126 OF 2018

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Reasons for Sentence – D2

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1.Originally, D1 and D2 were jointly charged with one count of trafficking in a dangerous drug and D2 was additionally charged with one count of possessing an identity card relating to another person. D1 pleaded guilty to Charge 1 and D2 pleaded not guilty to the charge of trafficking but guilty to the 2nd charge.

2.Upon reviewing the evidence, the prosecution decided to offer no evidence against D2 in respect of Charge 1 and, accordingly, I acquitted D2 of Charge 1.

3.On 11 September, I sentenced D1 to a term of imprisonment of 41 months.  As requested by the defence counsel for D2, I called for a probation report and adjourned the sentence of D2 to today, 5 October.

Brief facts of the 2nd charge against D2

4.At about 6:30 pm on 28 July 2017, D1 and D2 were intercepted by a party of police officers outside Block 5, Po Tin Estate in Tuen Mun.  Upon search, the police found a number of items, including one Hong Kong Identity Card (Exhibit P4) bearing the number of Y250XXX in the name of Cheung Hang-chak, Nike.

5.Upon caution, D2 claimed that his friend gave the said identity card to him because his friend owed him money.  The said ID card is a genuine one. 

6.It transpired that on 5 July 2017, the owner of the said ID card reported to the police that he had lost the ID card.

Mitigation

7.Defence counsel submitted that he has explained the content of the probation report to D2, who agreed and accepted the recommendations so put forward by the probation officer.  It is submitted that it is to everyone’s interest to impose a probation order on D2 who requires a degree of supervision.

8.D2 had a clear record and has indicated his guilty plea to Charge 2 on the first available opportunity.

Sentence

9.D2 is aged 18 and was born in Hong Kong.  He had no criminal record in Hong Kong. 

10.Originally, D2, together with D1, faced another count of trafficking in a dangerous drug.  D2 was lucky in a sense that D1 did not co-operate with the police to provide any incriminating evidence against D2.  What D1 confessed in his video-recorded interview could not be used against D2.

11.In D1’s shoulder bag, the police found a number of items bearing D2’s name, namely, the bank cheque for $7,000 made payable to D2, D2’s resident card of Chelsea Heights and a HSBC bank card in D2’s name.  But all these evidence are not sufficient to prove the charge of trafficking against D2, based on the principle of joint enterprise, even though I agreed that the circumstantial evidence against D2 is highly suspicious.  It is probable that D2 was making use of D1, who is younger, to carry the shoulder bag in which 26.47 grammes of cocaine was found.

12.D1, Tong Kwok-yin, aged 16, in his mitigation repeated that the shoulder bag in which the drugs were found, was in fact given to him by D2.  Had D1 co-operated with the police and provided incriminating evidence against D2, D2 could have ended up in a totally different path.  On the other hand, D2 is also lucky for the second time as the owner of the ID card had reported the loss of his ID card on 5 July 2017 and D2 was found in possession of the same on 28 July.  Had the version of the ID card owner been accepted by the authority, D2 could be charged with the offence of theft and/or handling stolen goods.  I noted that D2 offered his “explanation” in his cautioned interview and in the probation report.

13.Now, D2 was convicted of the offence of possession of another person’s ID card.  The ID card is a genuine one, and I am of the view that a distinction needs to be drawn between possession of a genuine ID card relating to another and that of a forged ID card.

14.Both counsel referred to the case of HKSAR v Li Chang Li, HCMA 935/2004, and also the case of HKSAR v Sarfraz, HCMA 270/2018, as the right authority for sentencing D2 in the present case. It is to be noted that the case of Li Chang Li related to the offence of possession of a forged ID card under section 7A(1) of Cap 177.  In the case of Sarfraz, it seems that the court does not make any distinction between possession of a forged ID card and a genuine one.  In the present case, it is a genuine ID card, hence D2 was charged with the offence of possession of ID card relating to another under section 7A(1A), not section 7A(1) of Cap 177, even though both offence provisions carry the same maximum sentence.

15.The probation report said D2 is the only child in the family and started to engage in nocturnal activities since he attended a vocational course in September 2016.  It is said D2 attributed his commission of the convicted offence to his ignorance and weak legal concept.  D2 shows resistance to probation supervision as he does not want to be restrained in life.  On the contrary, the report said D2’s parents prefer probation rather than a suspended sentence as they see themselves unable to offer supervision over D2 effectively.

16.It is also reported that D2 started to take drugs in early 2017 and even took cocaine after being remanded and during the short period of case adjournment.  It also said D2 needs strict statutory supervision and confined setting for training as assistance for him to build up a structured and disciplined life.  The major obstacle to the success of the rehabilitation is D2’s rejecting attitude and weak determination for positive change.  As such, it is recommended to impose an 18-month probation order with stringent conditions as specified in the probation report:

(1) He shall be of good behaviour and keep the peace.

(2) He shall keep in touch with the supervising probation officer.

(3) He shall receive scheduled/ unannounced visits from the probation officer at D2’s home.

(4) He shall reside and study or work as directed by the probation officer.

(5) He shall not associate with any person or groups of persons as directed by the probation officer.

(6) He shall remain at his place of residence every night from 10 pm until 6 am in the next morning unless D2 is accompanied by his parent(s) with the proper approval of the probation officer or otherwise those authorised by the officer.

(7) He shall participate in any programmes and activities that the probation officer deems conducive to his rehabilitation as directed.

(8) He shall receive psychiatric and/or psychological treatment as and when directed by the probation officer.

(9) He shall submit himself to random urine tests, and to receive and complete any forms of drug treatment and rehabilitation programmes as and when directed by the probation officer.

(10) He shall reside at the transitional housing provided by Young Outreach for a period of not less than 12 months.

(11) He shall prepare and submit daily journals as and when directed by the probation officer.

17.Given the stringent conditions abovesaid, I am of the view that the additional requirement of making progress report in 3 months with court attendance of the accused as recommended by the probation officer is not warranted, as at the end of the day, it is only D2 himself who can really make the rehabilitation a success.

18.It is well accepted that the principle of sentencing a young offender is different from that of sentencing an adult. Taking all factors into consideration, I will put D2 on probation for 18 months on those conditions so specified in the report.