HKSAR v. Li Wai Hon

DCCC 384/2024

[2024] HKDC 2199

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 384 OF 2024

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REASONS FOR SENTENCE

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Charges

1.The defendant pleaded guilty to one charge of burglary, contrary to section 11(1)(b)and (4)  of the Theft Ordinance, Cap 210 and a further charge of possession of a dangerous drug, contrary to section 8(1)(a)and (2)  of the Dangerous Drugs Ordinance, Cap 134.  He agreed to the summary of facts and was duly convicted of both charges.

Facts

2.On 18 September 2023 at around 10 am, the person in-charge of the warehouse premises of a logistics company named “Dong Cheng Logistics” and located at Jockey Club Road, Sheung Shui (the “Warehouse”)  discovered that a safe (which was valued at HK$1,000)  placed inside the said office of the Warehouse had gone missing.  Inside the said safe, there were cash of around HK$8,000, Renminbi ¥2,000 and some delivery notes.  There was not any lock at the door of the said office.

3.CCTV footage revealed a man, later confirmed to be the defendant, arriving at the Warehouse on 17 September 2023 at 5:41 am in a private vehicle alone.  He opened the door of the said office and took away the safe.  The defendant worked as a casual labour for Dong Cheng Logistics and he last worked at the Warehouse two weeks prior to the incident.

4.The defendant was arrested on 21 September 2023 when he was about to leave Hong Kong at the Hong Kong-Zhuhai-Macao Bridge Hong Kong Port.  The police located his vehicle at a nearby carpark.  Under caution the defendant admitted to have driven to the Warehouse to steal the said safe.

5.The police searched the defendant’s vehicle and found inside the drawer at the driver’s seat 3 resealable bags containing a total of 2.28 grammes of a crystalline solid containing 2.27 grammes of methamphetamine hydrochloride, more commonly known as Ice.  The defendant admitted under further caution that the Ice was for his own consumption.

6.In the subsequent video recorded interviews, the defendant admitted to be a former employee of “Dong Cheng Logistics” and had resigned about a few weeks earlier.  He identified himself to be the burglar as captured by the CCTV installed at the Warehouse who had driven to the Warehouse and took a safe from its office.  He then prized open the safe with some tools and took around Renminbi ¥2,000 and HK$8,000 stored inside.  He alleged to have lost money in Macau and wanted to take the stolen cash to Macau.  He further admitted to have bought the Ice 2 to 3 weeks ago and put them inside the compartment of the Vehicle for his own use. 

Background of the defendant and mitigation

7.The Defendant is now 43 years old.  He has 8 previous criminal records including 4 dangerous drugs related convictions and one conviction of the offence of theft.

8.Ms Tsang, counsel representing the defendant, informed the court that the defendant is divorced and was educated up to Form 3 level. He worked as a transportation worker earning around HK$30,000 per month before his arrest.

9.Ms Tsang submitted guideline cases laid down by the Court of Appeal in respect of the offence of burglary.  She highlighted that this instant case is an unsophisticated case of burglary involving only one burglar, though, she accepted, that there was breach of trust on the part of the defendant.  Ms Tsang urges the court to follow the Court of Appeal’s judgment in HKSAR v Cheng Ting Fang CACC 221/2007 and to enhance the sentence by not more than 3 months.

10.Ms Tsang submitted that the defendant is willing to make financial restitution and produced in court today a bank payment record in the sum of HK$11,127, representing full restitution in respect of the loss suffered by the victim of Charge 1.  The prosecution confirmed that payment was duly received.

11.As for the offence of possession of a dangerous drug, Ms Tsang referred the court to the sentencing principles as set out in HKSAR v Mok Cho Tik [2001] 1 HKC 261.

Sentence

Starting point for Charge 1

12.It was held by the Court of Appeal in R v Wong Man [1993] 1 HKC 80 that the correct starting point for a single count of burglary of a non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 and 1/2 years’ imprisonment.

13.In this case, there was an abuse of trust element in that the defendant previously worked at the Warehouse and no doubt turned the knowledge about the said office premises he had gained during his employment to his own advantage.

14.Taking into account this aggravating feature, I enhance the starting point by 3 months to 2 years and 9 months’ imprisonment.  It is noted that the defendant’s previous conviction of theft was recorded in 1998. In view of the long lapse of time, the court will not enhance the sentence for Charge 1 further in this regard.

Starting point for Charge 2

15.In Mok Cho Tik, the Court of Appeal said at page 267B that:-

“We remain of the view that the starting point for mere consumption 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. 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 the starting point to be higher than it otherwise would be.”

16.The defendant is a persistent offender and has 2 previous convictions of possession of dangerous drugs and one of possession of device fit for consuming dangerous drugs, with the latest convictions recorded in May 2021.

17.Taking all the circumstances into account, I am satisfied that in the case of having in the defendant’s possession of 2.27 grammes of Ice, a starting point of 15 months’ imprisonment is appropriate.

Latent risk

18.Again, in Mok Cho Tik, the Court of Appeal said at page 267D that:-

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

19.Taking into account that (i)  the 3 packets of Ice were found in the defendant’s car; (ii)  he told the police under caution that he had lost money in Macau and intended to use the stolen cash from the safe to go Macau again and the close proximity in time with the burglary; and (iii)  he has previous convictions relating to the possession of dangerous drugs and one conviction for trafficking in dangerous drugs, there was, in my view, a risk that the Ice could have fallen into other hands.

20.In the circumstances, I enhance the starting point by 3 months to 18 months’ imprisonment for Charge 2.

Mitigating factors

21.The defendant made a timely plea and is entitled to a full one-third discount.  The sentences for Charge 1 and 2 after discount is therefore, 22 months and 12 months imprisonment respectively.

22.Restitution should be taken into account and the repayment of HK$11,127 should be treated as full restitution.  I allow a further reduction of 2 months and the sentence for Charge 1 is reduced to 20 months’ imprisonment.

Totality

23.The 2 charges are entirely separate and distinct offences.  Subject to totality of sentence, it is considered that a consecutive sentence is appropriate.

24.I am satisfied a total sentence of 2 years and 2 months’ (26 months)  imprisonment properly reflects the defendant’s overall criminal culpability on the two charges.

25.The defendant is sentenced as follows:

Charge 1: 20 months’ imprisonment;

Charge 2: 12 months’ imprisonment,

and it is further ordered that 6 months of the sentence for Charge 2 is to be served consecutively to the sentence for Charge 1, making a total term of 2 years and 2 months’ imprisonment.