HKSAR v. Yung Wai Leong

DCCC 596/2020

[2020] HKDC 1095

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 596 OF 2020

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REASONS FOR SENTENCE

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1.A man, who was too drunk to know what was going on, managed to jump in a taxi in Wan Chai to go home in the small hours of the night, but he was unable to make it back home, about two hours later police officers found him totally inebriated lying on the road near where he lived, the Sun Kwai Hing Garden in Kwai Chung.

2.By then, the man realised his handbag had gone missing. There are lots of things in it including his ID card and Mainland travel permit, two credit cards, a membership card, 3 mobile phones, a couple of thousand dollars in cash etc.

3.About 6 weeks later at around noontime on 19 February 2020, a patrol officer stopped the defendant in the streets of Mong Kok for ID check, but the defendant was not carrying any on him, which formed the subject matter of charge 4 of failing to produce proof of identity on demand[1].

4.A search of his handbag reveals a number of offences. The man’s ID card, Mainland travel permit, credit cards and membership card (charge 1 of theft[2]); a crowbar, a screwdriver, a spanner and a cutter (charge 2 of going equipped for stealing[3]); a packet of cocaine – 0.2g of a solid containing 0.16g of cocaine (charge 3 of possession of a dangerous drug[4]).

5.The defendant, aged 35, pleaded guilty before me to all 4 charges.  Not a stranger to the court, the defendant has 23 convictions to his name covering a wide range of offences – drug-related, violent and dishonesty offences, offences relating to counterfeiting notes and possession of forged ID card.

6.In his interview with the police, the defendant explained how he came by the man’s properties. He picked up a wallet with those items in it in Dundas Street about a month ago and thereafter was sort of forgetting all about it; he never used any of the identity documents or the bank cards.

7.Insofar as those tools were concerned, he initially lied about their use but later changed to say he intended to use them to get dolls from the “Claw Machines” in the Games Centres for his girlfriend.  The drugs, he said, were for his personal use.

8.In mitigation, the court heard that the defendant worked in the construction industry earning about $9,000 a month on average. The defendant lives with his parents who are in their late 60’s, though not entirely dependent on him, the defendant bears responsibility of looking after their daily needs, and he also has his girlfriend (now his fiancee) and her 5-year-old son, whom the defendant treats as his own, to provide for.

9.Counsel for the defendant, Miss Hung, submitted that despite his rather unimpressive record, the defendant is in fact kind in nature. He is a member of a non-profit organisation called “Hong Kong with Heart” actively taking part in various volunteer work and social services, and dedicating in caring for and assisting elderlies who live alone as well as those with disabilities. His enthusiasm and effort in serving the community, Miss Hung said, have been met with positive feedbacks and compliments. A supporting letter from the Hong Kong with Heart was handed up to the court.   

10.Miss Hung said the strongest mitigating factor in the defendant’s favour is his frank admission to all the charges he faced, and went on to say that the defendant has expressed genuine remorse having deeply reflected upon his own behaviour. With the increasing responsibility as a son for his elderly parents, as well as a “father” for the young child of his fiancee, the defendant understands the importance for him to turn over a new leaf and to establish a law-abiding and respectable lifestyle.

11.Miss Hung has taken the court through various authorities in respect of each of the offence. Regarding the man’s missing items found on the defendant, Miss Hung submitted it is no more than a case of “theft by finding” which, as the authorities suggested, would normally attract a term of 6 months’ imprisonment. The term is even lower for the offence of going equipped such as 2 months after plea. As for the drugs in question, one authority[5], the facts of which are similar to the instant case (0.15g of cocaine) except that the appellant in that case was a person of clean record, confirmed the court adopting a starting point of 6 months.

12.True to say there is no evidence to counter the defence’s “theft by finding” version of event, but the seriousness lies with his continued appropriation of those items; his stealing behaviour does not end but continues as long as he keeps those items. He has had them for at least a month for he said he picked them up a month ago, and if any of the items, in particular the ID card, were put to illegal use, the ensuing offences would be a serious one.  

13.I find it difficult to believe that he carried those tools around solely for the purpose of stealing some dolls from a gaming machine. Looking at his record, he has one similar prior conviction of going equipped for stealing back in 2014 for which he was sent to DATC, and a number of thefts though none of which is to do with burglary.

14.Let’s not forget the particulars of the offence of going quipped to which the defendant admitted allege that he had those tools for use in the course of or in connection with burglary. There is no denying that these tools are suitable implements for use in the course of break-ins.

15.Coming to the drug offence, though it is not of large quantity and we are talking about simple possession as opposed to trafficking, it still remains a serious offence.

16.Here it would be worth mentioning the words of the Appellate Court in Mok Cho Tik [6] in dealing with the offence of possession of drugs:

“……We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court), but that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitating measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously, the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender, he can expect a starting point to be higher than it otherwise would be……”

17.The defendant is clearly a repeat offender of drug offences (all together 6 convictions of possession and one conviction of trafficking). He has his first conviction of possession of drugs dating back to March 2009 for which he was sent to DATC; 15 months later, he was sent to prison for 32 months for drug trafficking.  In the ensuing decade, he has been in and out either of prison or DATC several times for drug-related offences. His last drug conviction was in 2018 and he was sent to prison for 16 months for possession of drugs.

18.Ever since his release from prison for the drug offence, Miss Hung emphasized once again the fact that the defendant has changed to a better man having truly reflected on his past misdeeds, and he was determined to be a responsible father and son. As for his commission of the present offences, Miss Hung put it down to the defendant being foolish.  

19.As far as mitigation is concerned, besides his guilty pleas, there isn’t any of substance.

20.Based on what was said above, I take as the starting points 12 months for each of the charges 1, 2 and 3 and reduce it to 8 months each to reflect his timely pleas.

21.Taking into account the totality principle, I order that charge 1 be run consecutively to three months of each subsequent charge, the rest concurrently; the total term is one of 14 months’ imprisonment.  

22.Lastly, for the offence of failing to produce proof of identity, though this is his second offence, a financial penalty in my view would still be sufficient to dispose of the matter. The defendant is fined $500 to be paid on or before 31 December 2020 and in default, he has to serve a term of 3 days’ imprisonment consecutive to his existing term.