HKSAR v. Chan Nam Fat

DCCC 379/2020

[2020] HKDC 1208

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 379 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1] (charge 1) and one charge of possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance[2] (charge 2).

2.Full details of the offences are set out in the facts admitted by the defendant today. In summary at around 4:30 a.m. on 19 January this year Mr Suen parked his blue motorcycle, registration mark NP 4805, valued at about $5,000, on Wood Road in Wan Chai.  At around 8 a.m. the same day Mr Suen discovered his motorcycle was missing and made a report to the police. 

3.At around 1 a.m. on 22 January Mr Tse, a friend of Mr Suen’s, saw NP 4805 parked outside No. 95 Fa Yuen Street in Mongkok.  The motorcycle had however been painted black.  Mr Suen called the police. 

4.At around 1:08 a.m. the police arrived and laid ambush.  At around 1:38 a.m. the defendant approached NP 4805.  The police intercepted the defendant when he got on the motorcycle and inserted the key in the ignition (charge 1).

5.The police arrested the defendant and took him to the Mongkok police station where he was searched.  Inside the defendant’s underwear the police found one transparent re-sealable plastic bag containing 13.6 grammes of a crystalline solid containing 12.7 grammes of methamphetamine hydrochloride (“ice”) (charge 2).

6.Under caution and in a subsequent video recorded interview the defendant admitted, inter alia, that the ice was for his own consumption; he bought the ice at a discounted price of $2,500 from an unknown male in a park in Sham Shui Po about an hour before he was arrested; he had consumed ice for about ten years and he would consume about one gramme of ice per day.   

Mitigation

7.In passing sentence, I have carefully considered everything said on behalf of the defendant by Ms Siu, including that the defendant, who is 49, relies on public assistance as well as some support from his wife who lives in Mainland China and his siblings[3].

Theft of vehicle

8.There are no guidelines for offences of theft of vehicles, each case depending on its own facts.  Deterrent sentences are nevertheless required.   As was said in HKSAR v Cheng Chun Ming[4]:

“Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

9.Ms Siu has referred the court to my reasons for sentence in HKSAR v Lam Kai Man[5].  Each case depends on its own facts and circumstances.

10.The theft was committed in the early hours of the morning and although the defendant did not change the registration mark he painted the motorcycle black to avoid detection by the police.   

11.Taking into account the value of the motorcycle was $5,000, I am satisfied the proper starting point after trial is 1 year and 6 months’ imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 12 months’ imprisonment. 

Possession of ice

12.The provisions of section 54A of the Dangerous Drugs Ordinance requiring a court to consider a report on the suitability of the defendant for cure and rehabilitation and on the availability of places at addiction treatment centres does not apply, the defendant having been convicted and sentenced to more than 9 months’ imprisonment for theft.

13.In HKSAR v Mok Cho Tik the Court of Appeal held that the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months[6].    I am satisfied the appropriate starting point for possession of 12.7 grammes of ice is 1 year and 6 months’ imprisonment.

14.I am satisfied the defendant is a persistent offender.  The defendant has three convictions for possession of a dangerous drug.  Although the first conviction was in 1995 when the defendant was fined, the last two convictions are more recent in 2016 and 2018 when the defendant was sentenced to 12 months and 16 months’ imprisonment respectively.  I enhance the starting point by 3 months to 1 year and 9 months’ imprisonment by reason of the defendant’s repeat offending.

Latent risk

15.Ms Siu submits that there is no latent risk there being no evidence the defendant could not afford the drugs[7].  As indicated in court I do not accept that there was no latent risk.  After taking instructions Ms Siu informs the court that the defendant elects not to give evidence challenging that there is a risk of dissemination[8].

16.According to what the defendant told the police he consumed one gramme of ice per day.  12.7 grammes of ice would therefore last the defendant less than half a month and not approximately 25 days as submitted by Ms Siu.  Even at the discounted price the defendant said he bought the ice his regular income of approximately $5,400 per month (casual work and public assistance) would hardly be sufficient to purchase enough ice for one month, let alone pay for his daily living expenses.

17.Taking this into account together with the fact that the defendant was arrested in the street in the early hours of the morning, one hour after he said he bought the drugs, I am satisfied there was a risk that some of the ice could have fallen into other hands. 

18.In the circumstances I enhance the starting point by 6 months to 2 years and 3 months’ imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 6 months’ imprisonment.

Totality

19.Theft of the motorcycle and possession of a dangerous drug are entirely separate and distinct offences.  I am satisfied a wholly consecutive sentence is appropriate and that a total sentence of 2 years and 6 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[9].  

20.The defendant is sentenced to consecutive sentences of 12 months’ imprisonment on charge 1 and 1 year and 6 months’ imprisonment on charge 2.  The total sentence to be served by the defendant is 2 years and 6 months’ imprisonment.