HKSAR v. Chan Chi Chun and Another

DCCC 764/2020

[2021] HKDC 144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 764 OF 2020

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REASONS FOR SENTENCE

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1.The defendants plead guilty to one joint charge of burglary of a restaurant, contrary to section 11 of the Theft Ordinance[1] (charge 1). D1 pleads guilty to one charge of possession of dangerous drugs (charge 2) and D2 pleads guilty to one charge of possession of a dangerous drug (charge 3), contrary to section 8 of the Dangerous Drugs Ordinance[2].

2.Full particulars of the offences are set out in the amended summary of facts admitted by the defendants on 2 February 2021. 

Charge 1 - burglary

3.In summary Mr Chan was the owner of a restaurant called “True Taste Delicious Food” situated at Shop No. 16, G/F of Nam Cheong Centre, Nos. 81-95 Nam Cheong Street in Sham Shui Po.  The restaurant had CCTV installed.  

4.At about 10:00 a.m. on 17 June 2019 Mr Chan returned to the restaurant to work. Mr Chan left the iron gate of the shop half open.  At about 10:30 a.m. while Mr Chan was preparing food he saw from the CCTV that D1 entered the restaurant and D2 acted as a lookout.  

5.D1 raided the restaurant and took away six packets of cigarettes and a rucksack of one of the staff of the shop.  The rucksack contained the staff’s wallet, Hong Kong identity card, Home Visit Permit and a bank card together with HKD 2,130 and 1,000 Renminbi. 

6.Mr Chan immediately gave chase and shouted for help.  With the assistance of a passer-by D1 and D2 were successfully intercepted.  The police were called and arrested D1 and D2.

7.Photographs of the shop and screen captures from the CCTV footage have been submitted to court[3].

Charge 2 – possession of dangerous drugs

8.On the ground where D1 and D2 were arrested the police found a paper bag inside which was a box containing four plastic bags containing 9.14 grammes of a crystalline solid containing 9.05 grammes of methamphetamine hydrochloride (“ice”) and seven plastic bags containing a total of 8.92 grammes of a powder containing 7.59 grammes of ketamine. 

9.CCTV captured D1 carrying the property stolen in the burglary together with the paper bag containing the dangerous drugs outside the restaurant and when he was intercepted by Mr Chan.  

Charge 3 – possession of a dangerous drug

10.D1 and D2 were taken to Sham Shui Po Police Station.  In the report room D2 dropped a plastic bag containing 1.37 grammes of a crystalline solid containing 1.36 grammes of methamphetamine hydrochloride (“ice”) onto the floor. 

Mitigation

D1

11.In passing sentence, I have carefully considered the oral and written submissions of Mr Tong on behalf of D1 including that after his last release from prison D1 took up casual work as a vehicle attendant[4].

D2

12.I have carefully considered the oral and written submissions of Ms Lee on behalf of D2, including that D2 is 36, divorced and lives with his parents and elder sister[5]. Ms Lee explains that after the divorce D2 became very depressed and resorted to drug consumption[6].

13.I have read the mitigation letter from D2’s former employer who speaks highly of D2 and asks for a lenient sentence[7]. I note that since D2 was granted bail he has joined the workforce as a casual transportation worker[8].

14.I take into account that D2 has no previous convictions for burglary.  D2 does however have two convictions for possession of a dangerous drug in 2005 and 2015.

Burglary

15.The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

16.Mr Tong and Ms Lee have referred the court to three appeals against sentences I imposed for burglary.  The cases referred to by Ms Lee are burglary of restaurants[9].

17.Mr Tong submits this might be a case of sneak burglary for which the court may consider a lower starting point[10]. In support Mr Tong refers the court to the sentence I imposed in HKSAR v Ng Tsz Ki where the burglary involved the pulling up of an unlocked roller gate[11].

18.Ms Lee submits that on the day of the burglary D2 had been drinking with D1 overnight and when they were walking around the next morning committed the burglary as opportunistic burglars[12].

19.I accept that this can be described as an opportunistic burglary.  However, the defendants did not simply pass by an open door or vacant premises and steal food or items of little value[13], for example cans of soft drinks which can be seen in the photographs in the refrigerator and stacked in cartons on top of a wooden table[14]. 

20.Although the defendants did not break into the restaurant and D1 was only inside the restaurant for less than one minute, D1 was clearly looking for valuable property to steal as seen by the fact he opened a drawer from which he took the rucksack out[15].

21.I am satisfied a starting point of 2 years and 6 months’ imprisonment is appropriate.  The commission of burglary by two or more persons is an aggravating feature of  sentence[16].  However, taking into account that the burglary can be described as opportunistic, I do not enhance the starting point by reason of the fact D1 and D2 jointly committed the burglary. 

22.Although D1 has five previous convictions for offences of dishonesty including attempted burglary in 2000, taking into account his last conviction for theft was in 2013, I do not enhance the sentence by reason of D1’s previous convictions. 

23.Giving the defendants full credit for their pleas of guilty they are convicted and sentenced on charge 1 to 1 year and 8 months’ imprisonment.      

Possession of ice

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

25.In HKSAR v Mok Cho Tik the Court of Appeal said[17]:

“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). ......and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.”

D1

26.I am satisfied the appropriate starting point for possession of 9.05 grammes of ice and 7.59 grammes of ketamine is 1 year and 6 months’ imprisonment.

Latent risk

27.In oral submission Mr Tong accepted that latent risk cannot be ruled out but asks that the court take into account that the defendant is an abuser of ice as shown by the urine test result on admission to Lai Chi Kok which was positive for amphetamine[18].

28.Taking into account the defendant was arrested in the street; the quantity and packaging of the dangerous drugs; the estimated retail price of the ice was $4,652 and the ketamine $5,441; there was two different drugs; the defendant is a drug abuser and the defendant’s last conviction was for trafficking in dangerous drugs in 2015 when he was sentenced to 5 years’ imprisonment, I am satisfied there was a real risk that some of the ice and ketamine could have fallen into other hands. 

29.In the circumstances I enhance the starting point by 9 months to 2 years and 3 months’ imprisonment.  Giving D1 full credit for his plea of guilty he is convicted and sentenced on charge 2 to 1 year and 6 months’ imprisonment.

D2

30.Ms Lee says that the ice was left over from what D2 had consumed the night before and points to the urine test report showing the defendant was positive for amphetamines as an illustration that D2 was drug dependent at the time of arrest[19].

31.Taking into account the relatively small amount of ice, 1.36 grammes, I am satisfied the appropriate starting point is 9 months’ imprisonment.  Notwithstanding D2 was found on the street with one packet of ice, taking into account again the relatively small amount of ice and that the defendant was a consumer of ice at the time of arrest, I find there is no latent risk.

32.Giving D2 full credit for his plea of guilty he is convicted and sentenced on charge 3 to 6 months’ imprisonment.  

Totality

33.Although committed at the same time, possession of dangerous drugs is entirely separate and distinct from the burglary for which consecutive sentences are appropriate. 

D1

34.I am satisfied a total sentence of 3 years’ imprisonment properly reflects D1’s criminality on the two charges and takes into account D1’s personal circumstances and the seriousness of the offences[20].  

D2

35.I am satisfied a total sentence of 2 years’ imprisonment properly reflects D2’s criminality on the two charges and takes into account D2’s personal circumstances and the seriousness of the offences[21].

Sentence

D1

Charge 1 - 1 year and 8 months’ imprisonment; and

Charge 2 - 1 year and 6 months’ imprisonment with 1 year and 4 months consecutive to charge 1 and 2 months concurrent.

The total sentence to be served by D1 is 3 years’ imprisonment.

D2

Charge 1 - 1 year and 8 months’ imprisonment; and

Charge 3 - 6 months’ imprisonment with 4 months consecutive to charge 1 and 2 months concurrent.

The total sentence to be served by D2 is 2 years’ imprisonment.