HKSAR v. Tsang Wing Hong

DCCC 565/2022

[2023] HKDC 1598

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 565 OF 2022

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REASONS FOR SENTENCE

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1.The Defendant (D)  pleaded guilty to 6 charges of offences and the 5^th Charge is now left in court’s file and ordered not to be proceeded with without the leave of the court.

2.The 6 charges are: -

Charge	Date/Period of Offence	Nature
1.	31/7/2021	Theft (Number plates and License)
2.	25/6/2021 – 8/8/2021	Handling stolen goods (One motor cycle)
3.	8/8/2021	Driving a motor vehicle with any concentration of specified illicit drugs (0.02 micrograms of cocaine)
4.	8/8/2021	Driving without a valid driving licence (D was not a holder of the vehicle license)
6.	8/8/2021	Possession of a dangerous drug (1.93 grammes of ice)
7.	8/8/2021	Possession of an identity card relating to another person

Facts of the Case

3.On 25 June 2021, PW1 found his motor cycle (WY1148)  had been stolen. He reported the case to the Police.

4.On 31 July 2021 PW2 parked his motor cycle RP1498 on the roadside in Sheung Shui.

5.On 2 August 2021, PW2 found that the motor cycle number plate and the vehicle license had been stolen. He reported the case to the Police.

6.On 8 August 2021 at around 1135 hours, the police stopped the motor cycle RP1498 for enquiry.

7.Upon a body search, PW3 found a plastic bag containing 2 grammes of a crystalline solid containing 1.93 grammes of ice on D’s left hand. D was arrested.

8.A bag was found on the floor of the driver seat (“Bag-1”). Upon search, the following items, inter alia, were found:-

(a)  a HKID card in the name of “MA Siu Wai”;

(b)  one hand saw;

(c)  4 drill bits (鑽頭);

(d)  one angle grinder (角磨機);

(e)  one grinding head (磨頭);

(f)  two drillers;

(g)  two screwdrivers;

(h)  one hammer;

(i)  one cutter;

(j)  5 spanners; and

(k)  two boxes of screws.

9.Upon search, there were a number of other tools inside the bag, and inside the recycle bag, there were more tools found.

10.One jumps power (過江龍)  was found in a compartment store under the driver seat.

Police Investigations

11.Records from the Transport Department revealed that D only had a learner driving license which was expired on 14 March 2012.  (Charge 4)

12.Upon checking, the chassis number of the motor cycle belonged to WY1148.

13.According to PW1, when he received WY1148 from the Police, the ignition switch was broken, the ignition lock cylinder was damaged and it can be easily detached from the motor cycle.

14.The number plate “RP1498” and the vehicle licence of “RP1498” being attached to the motor cycle were found to be PW2’s property.

15.The D was later sent to Princess Margaret Hospital for blood examination. According to the chemist’s report, 0.45 uμg/ml of methamphetamine and 0.02 uμg/ml of benzoylecgonine (a metabolite derived from cocaine)  were detected in the blood.  (Charge 3)

16.The HKID card owner, MA Siu Wai, (Charge 7)  could not be located, but he had reported his loss of HKID card on 17 December 2021.

The Arrest of D

17.Under caution, the D stated that the substance inside the packet was ice and it was for his own consumption (Charge 6).

18.In the video-recorded interview, the D stated, inter alia, that:-

(a)  “大超” gave him the motor cycle and the key to D for settling his debts about one or two months ago (Charge 2);

(b)  The number plate “RP1498” has already been affixed to the motor cycle when D received it (Charge 1);

(c)  He knew he did not have a valid driving license (Charge 4);

(d)  On the offence date, he consumed ice and then drove the motor cycle to pick up his female friend at Sham Shui Po (Charge 3);

(e)  He bought the drug for HK$2,000 from “Ah B”; it was for his own consumption (Charge 6); and

(f)  He did not know “Ma Siu Wai” (Charge 7).

Criminal record

19.Since 1993 to 2020, the D has a long list of criminal records with 15 court appearances of a total of 21 counts of offences:-

(a)  Theft – 6 times

(b)  Possession of dangerous drugs – 10 times

(c)  Trafficking of dangerous drugs – 2 times

20.After the present offences, he has 2 further court appearances with 3 counts related to drugs offences, two of them were possession of dangerous drugs.

Mitigation

21.The D is now 47 years old. He has a steady girlfriend for the last 10 odd years. His mother is 70 years old and suffered from eye disease. His sisters are all married and live apart. The D is the one to provide daily care to his mother.

22.Since mid-2020, the D relied on public assistance of about $2,400 from the government.

23.Due to his incarnation, the Housing Authority has repossessed his housing unit.

24.The D committed the present offences because his friend could not repay the debt and therefore the motor cycle was passed on to him as a mean to settle the debt (of about $5,000).

25.The D’s mother has been in court this morning prior to the commencement of the hearing, she left because she was feeling unwell.

26.Lastly, I have read all the documents and letters submitted to me from the Defence.

Sentence

Charge 1 – The theft of the number plate and vehicle licence

27.Clearly these are the tools to conceal the stolen motor cycle being driven by the D.

28.The stealing of the 2 items involved planning and calculation, he also has a number of theft related convictions. As such, I considered that starting point should be 9 months, allowing 1/3 discount, it comes down to 6 months.

Charge 2 – Handling of the stolen motor cycle

29.Handling of a stolen motor cycle is a serious offence, it may cause significant financial loss as well as considerable inconvenience to the owner.

30.I am told this morning that the owner used the motor cycle for his daily use to go to work.

31.He spent $28,000 to buy the motor cycle and further $6,000 to repair the motor cycle as the ignition switch and lock cylinder was damaged.

32.The D had the stolen motor cycle for 1 to 2 months and had used it for a few times.

33.In the case of HKSAR v So Pak Lun CACC 276/2013, the starting point between 18 months to 2 years’ imprisonment would be appropriated for this type of offence.

34.The Defence said that since the motor cycle was to settle a debt due to the D, a starting point should be lowered.

35.I disagree, as it will give the public a wrong message.

36.I have expressed my view during mitigation as to whether the D had $5,000 to lend to his friend when he only has $2,400 per month from the government, he himself is a drug addict and he did not have $100 per day to spend. It was also in a dubious situation for him to drive the stolen motor cycle.

37.As such, I order the starting point at 2 years, given 1/3 discount, it comes down to 16 months.

Charge 3

38.Driving under the influence of cocaine, the maximum sentence is 3 years.

Charge 4

39.Driving without a valid license, the maximum sentence is 3 months.

40.The defence refers me to one of my previous decisions in DCCC 750/2021 which was a totally different set of events. The D in that case was charged with 2 offences, namely, trafficking dangerous drugs and drugs driving.

41.In the present case, the criminality and culpability was two folds:-

(a)  The D did not have a driving license; and

(b)  He took drugs before he started to drive.

42.As said in the case of Secretary of Justice v Chan Hon Hoi [2011] HKC 83 that:-

“driving under the influence of drugs is a clear danger on the roads and must be deterred in order to protect the public at large”;

“driver who knowingly drive a car while under the influence of drugs must expect a heavy sentence.”

43.The D’s irresponsible attitude to drive on the road might cause accident to the other road users. He put the innocent public at risk. He has no insurance to cover his driving in the event that there was an accident.

44.In Charge 3, I consider that a sentence of 15 months is appropriate in the present case. Allowing 1/3 discount, it comes down to 10 months.

45.I also order the D to be disqualified from driving all types of vehicles for a period of 2 years.

46.The D is also order to attend and complete a driving improvement course under S 72(1A)  of the Road Traffic Ordinance.

47.As to Charge 4, I adopt a starting point of 3 weeks, reduced to 2 weeks after 1/3 discount.

48.I order both sentences in Charge 3 and 4 to run concurrently.

Charge 6 – Possession of 1.93 grammes of ice

49.The D was found to have a transparent plastic bag containing a solid containing 1.93 grammes of ice on his left hand when he was arrested. Under caution he said that it was for his own use.

50.As said in the case of HKSAR v Wan Sheung Sum CACC 438/1999, the Court said that that the normal starting point was between 12 to 18 months. The latent risk factor would depend on all circumstances of the case including the quantity possessed and the personal circumstances of the offender.

51.Quantity will be one of the main governing factors which will determine where the starting point will lie.

52.A persistent offender can expect the starting point to be higher than it otherwise would be.

53.Having discussed with the defence in mitigation, I considered that the risk of re-distribution of the drugs or going into the hands of others are high for the following reasons: -

(a)  The D was unemployed. He relied on the monthly assistance of $2,400 from the government.

(b)  Upon taking further instruction from the D, I was told that the Social Welfare Department allowed him to work and to earn up to $3,000 to $4,000 per month.

(c)  In the 2 months prior to his arrest, he earned on average $1,500 to $2,000 per month. However, he could not provide any documentary evidence to support such a claim.

(d)  I conclude the D simply had no financial means to buy the drugs despite the facts that the D claimed his girlfriend supported him financially. It was just a bare assertion and his claim was not persuasive.

(e)  He has a number of drugs related offences records and surely he is well connected in networks.

54.I consider the latest risk factor is high. To this end, I adopt a starting point of 12 months, enhanced the sentence by 12 months (12 + 12 = 24 months), it becomes 24 months, I reduced the sentence to 16 months after 1/3 discount.

Charge 7 – Possession of an identity card relating to another person

55.According to the decision in HKSAR v Li Chang Li [2004-2005] HKCLRT 193, the court said that identity card is not a collector’s item. It follows that the purpose of keeping one ID card belong to another person was to conceal his/her true identity.

56.The usual starting point is 12 months. I do not see any special reason to depart from it.

57.I adopt a starting point of 12 months, given 1/3 discount it comes down to 8 months.

Totality

58.The defence asked for all the offences to be run concurrently as they all were committed on the same day in the same occasion. Clearly, this was not the case, as the offence dates in Charge 1 and 2 are different. To order a concurrent sentence will not be able to reflect the culpability of each offences.

59.As such, I order:-

(1)  One month from Charge 1 to run consecutively to Charge 2 which is 16 months.

(2)  4 months from Charge 3 and 4 to run consecutively to Charge 2. (I have already said that Charge 3 and 4 to run concurrently)

(3)  6 months from Charge 6 to run consecutively to Charge 2.

(4)  3 months from Charge 7 to run consecutively to Charge 2.

60.The total sentence is 30 months.