HKSAR v. Tsang Hiu Man

DCCC 153/2022

[2022] HKDC 829

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 153 OF 2022

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REASONS FOR SENTENCE

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1.D2 pleaded guilty and agreed to the amended Summary of Facts in respect of the 2 charges laid against her, ie the 1^st charge and the 4^th charge, and was so convicted. The 1^st charge is burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, and the 4^th charge is possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

1^st Charge

2.At around 0600 hours on 6 May 2021, manager of Chui Ho Restaurant, Shops Nos M001-M003, Shek Ping House, Long Ping Estate, Yuen Long, New Territories (“the premises”)  found that the glass door of the premises was broken.  Upon checking, one safe (“stolen safe” valued at HK$2,500)  containing HK$32,799 was missing.

3.CCTVs of and outside the premises captured D3 entered the premises by breaking the glass door of the premises and ransacked the premises.  D3 then left the premises with the stolen safe and passed the stolen safe to D1 outside the premises, and D2 wandered outside the premises. 

4.CCTV of Yuccie Square in Yuen Long, which was opposite to D1’s residence, captured D1 and D2 alighted later from a taxi and took out the stolen safe from the boot of the taxi. D1, D2 and D3 entered into the lobby of D1’s residence with D3 carrying the stolen safe, which was partly covered by a green jacket, and they all entered the lift.  Later, D3 carried what appeared to be the stolen safe covered by a blue cloth and took the lift from the 16^th floor to the ground floor. 

5.CCTVs of the refuse collection point of Yat Long House captured D1 and D3 later disposed of what appeared to be the stolen safe covered by a blue cloth at the refuse collection point.

6.On 12 May 2021, the stolen safe was found prised open and covered by a blue bedsheet at the refuse collection point.

4^th Charge

7.At around 1905 hours on 20 July 2021, the police arrived at D2 and D3’s residence to look for D2 and D3.  Only D2 was found.  During the search upon arrest on D2, inter alia, a key to a locked drawer in the bedroom was found.  The police opened the drawer with the key and found 1 plastic bag containing 0.49 gramme of a crystalline solid containing methamphetamine hydrochloride (“E1”)  and 1 ice bong containing (i)  1 glass bottle inserted with 1 glass tube shaped as a bulb at one end and 1 rubber tube fitted into 1 plastic straw containing 0.11 gramme of a solid containing methamphetamine and (ii)  1 glass tube shaped as a bulb at one end containing 0.12 gramme of a solid containing methamphetamine (“E2”). 

8.Under caution, D2 said on the day of the 1^st charge offence, D1 and D3 went to commit the burglary at the premises and she was waiting outside the premises around an “OK” convenience store nearby; she knew D1 and D3 had stolen the safe of the premises after the incident; she took the safe back to D1’s residence with D1 by taxi; and D3 gave her $1,800 which she later returned to D3. 

9.As for the 4^th charge, she explained under caution the way to use E2 to consume ICE, and she admitted using E2 to consume E1.

Criminal Record

10.D2 has a clear record.

Mitigation

11.D2 is 32 years old.  She received education up to Form 5 level.  Her father, aged 60, is a construction site worker, and her mother, aged 56, is a housewife.  She has an elder sister working as a clerk and a younger brother working as a flight attendant. 

12.In 2014, D2 separated from her married husband, and since then, she lives together with her mother and her son at a public housing estate.  Her son is aged 9, studying in Primary 4, and her mother has been taking care of the son since her remand.  D2 previously worked as an assistant in a medical clinic and later as an assistant in a beauty parlour.  Since May 2021, D2 and D3 have been together as lovers.

13.In respect of the 1^st charge, defence counsel for D2 submitted that D2 has a clear record, she frankly admitted her wrongdoing and she is deeply remorseful.  She also said that the burglary under 1^st charge involved commercial properties and small amount of property involved, ie $32,799.  It was also said the restaurant was vacant at the time of the burglary and there was no heavy machinery involved in the commission of the offence. There was no vandalism, and the defendants did not target at substantial properties or involve substantial premises.

14.It was also submitted D2 is not a professional burglar and her role in the commission of the offence was relatively minor as she wandered outside the restaurant and she knew about the burglary.  It was also said that she has returned the $1,800 given to her by D3 at a later stage.

15.In respect of the 4^th charge, again it was submitted that D2 has a clear record and this is her first drug offence.  It was submitted that the amount of drug involved is of small quantity, being 0.23 gramme of ICE, and D2 only started to take ICE 3 months before the offence.

16.Defence counsel referred this court to Archbold Hong Kong 2022 para 5-552 and the cases of HKSAR v Tang Kin Chung Harry, HCMA 79/2018, as well as HKSAR v Mok Cho Tik [2001] 1 HKC 261.  She submitted that D2’s commission of the offence in 1^st charge, indeed stemmed from her drug-taking problem and her association with D3.  She asked the court could consider the principle of totality and to impose two sentences to run concurrently, in particular, in view of D2’s clear record and remorse so that she could have early reunion with her son and her mother.

17.She submitted the letter in mitigation from D2 which illustrates her remorse and her wish to start afresh after release from prison to take care of her son.

Discussion

18.Before sentencing, this court has carefully considered all that was said and submitted on behalf of D2.

1^st Charge

19.D2 acted together with two others as a joint enterprise in the commission of this offence.  There was clearly a division of labour.  Each has their separate role and that the role of D2 is obviously as a lookout and also assisting in carrying the stolen safe back to D1’s residence, as supported by the CCTV footage and the amended Summary of Facts.

20.The restaurant is a non-domestic premises.  It is accepted that the value of the properties stolen is of modest value and that no one is expected to be within the restaurant at the time. 

21.It is well established that the sentencing starting point for burglary involving non-domestic premises with some sort of planning, as in the present case, is 30 months’ imprisonment (See R v Wong Man [1993] 1 HKC 80).  The same, however, is enhanced by 3 months by reason that three people were involved in the commission of this offence as a joint enterprise, as supported by the CCTV footage. 

22.This court considers that the only valid mitigating factor is one of D2’s own guilty plea, for which she is entitled to full one-third sentence discount. 

23.It is said by defence counsel for D2 that D2 committed the offence under the influence of drugs, but D2 at the time knew what she was doing and, as said earlier, she was acting as a lookout and also assisting in the carrying of the stolen safe back to D1’s residence.  This is not a valid mitigating factor.  Further, the fact that she has a clear record has already been subsumed in the sentencing discount of one-third as established by a number of authorities. 

24.In the circumstances, for the 1^st charge, D2 is sentenced to 22 months’ imprisonment.

4^th Charge

25.This is the first drug conviction or indeed any criminal conviction for D2. 

26.The quantity of drugs involved is actually not just the 0.23 gramme of a solid containing methamphetamine as said by defence counsel, but also the 0.49 gramme of a crystalline solid containing methamphetamine hydrochloride.

27.D2 is a fresh offender.  She has been deprived of the chance to go to DATC for rehabilitative purpose because of the commission of the burglary offence.  For this reason, this court is willing to exercise its discretion and to depart from the usual sentencing starting point for simple possession of a dangerous drug in the amount under the 4^th charge, and is therefore adopting a sentencing starting point of 3 months’ imprisonment.  The same is reduced to 2 months’ imprisonment by reason of D2’s guilty plea. 

28.Coming to consider totality principle and the just and proportionate sentence for D2, the nature of the 1^st charge and that of the 4^th charge are totally different and they happened on different dates.  They are entirely separate incidents save the mitigation submitted by defence counsel for D2 that part of the reason for the commission of the 1^st charge offence was drug-related.  The other aspects of the 1^st charge and the 4^th charge are totally unrelated.

29.Considering her overall culpability in this case and, in particular, that she is a fresh offender, the just and proportionate sentence for her is 23 months’ imprisonment. 

30.Accordingly, 1 month of sentence for the 4^th charge is to run consecutive to the sentence for the 1^st charge and the other 1 month to run concurrently.

31.D2 is therefore sentenced to a total of 23 months’ imprisonment for the case.