HKSAR v. Cheung Ho Wah and Others

DCCC 864/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 864 OF 2010

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REASONS FOR SENTENCE OF D3

1.D3 pleads guilty to two joint charges with D1 and D2 of attempted burglary and burglary of domestic premises, contrary to section 11 of the Theft Ordinance, Chapter 210 (charges 1 & 2). D3 also pleads guilty to a further charge of possession of traces of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance, Chapter 134 (charge 3).

2.In summary in the early evening of the 29th May last year Madam Tsang, the tenant of the 2/F of No 45A Lung Mei Tsuen, a three  storey village House in Tai Po, looked out of the window and saw the three defendants walking towards the ground floor of No. 45B.  The defendants used some tools to try prize open the gate but were unsuccessful.  The damage to the gate as seen from the photographs show a determined effort was made to try and break into the ground floor of No. 45B.  Madam Tsang on seeing this immediately called the police.

3.The defendants then walked towards the ground floor of No. 45A.  Madam Tsang was unable to see what was happening but heard the sound of prizing and a short while later saw two of the defendants carrying a bag.  The defendants had prized open a window on the ground floor and ransacked No. 45A, stealing the items particularised in charge 2. 

4.After they came out of the home they boarded a vehicle which drove off and hit the concrete curb, causing the front number plate to fall off.  At about 1926 hours the police spotted the vehicle.  After pursuing the vehicle for some distance, the vehicle stopped and the three defendants alighted, threw something into the nearby garden and ran away.  The police were able to stop all three defendants. Gloves were found in each of the defendants’ pockets.  As a result of a search of the garden the police found all the items stolen in the burglary together with 2 crowbars, 2 screwdrivers and 6 gloves.  Three plastic bags containing traces of cocaine were found in D3’s trousers pocket. 

5.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Choi together with the content of the DATC report.  The report reveals that the cocaine did not belong to the defendant and that the defendant insists he has never taken dangerous drugs.  This is contrary to the mitigation that the defendant has a long drug history of over 10 years.  Mr Choi today confirms the defendant pleads guilty to possession of cocaine and that the cocaine was for the defendant’s own consumption.  The defendant explains he did not reveal his drug history because he did not want to go to the DATC.

Burglary

6.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 19).

7.Both burglaries were committed at the same time, the burglary of No. 45A occurring immediately after the defendants failed in their attempt to break open the gate of No. 45B.  Taking into account there was two burglaries committed at the same time by three defendants I am satisfied a starting point of 3 years and 6 months imprisonment is appropriate for each offence (see HKSAR v CHENG Wai-kai          CACC 338/2007).

8.D3 is also properly to be regarded as a persistent offender, having multiple convictions for offences of dishonesty, including burglary.  The defendant was last convicted of burglary and handling stolen goods in November 2008 and sentenced to a total of 2 years and 5 months imprisonment.  The defendant was released on the 2nd May 2010 and by the end of May was again committing burglary.  Previous sentences have clearly had no deterrent effect on the defendant.  I am satisfied the starting points are to be further increased by 6 months to 4 years imprisonment (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

9.Giving the defendant full credit for his pleas of guilty he is sentenced to 2 years and 8 months imprisonment, concurrent on charges 1 & 2.

Dangerous Drugs

10.In HKSAR v MOK Cho-tik [2001] 1 HKC 261 the Court of Appeal said:

“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….. But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. 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.”

11.A letter from chaplain John Wotherspoon has been submitted today asking for a plan of rehabilitation to be arranged.  I am satisfied a sentence of rehabilitation is not appropriate, in particular as the drug offence does not stand alone.  I have considered the cases submitted by Mr Choi, in particular HKSAR v LEE Yin-yu CACC 81/2008 where the Court of Appeal said the appropriate starting points for possession of 0.48 and 1.51 grammes of ice were 6 months and 9 months respectively.

12.Taking into account the defendant has two previous convictions for possession of dangerous drugs for which he has received sentences of imprisonment of 5 months and 11 months, sentences which again have clearly had no deterrent effect on the defendant, I am satisfied the proper starting point for traces of cocaine is one of 9 months imprisonment.  Giving the defendant full credit for his plea of guilty he is sentenced to     6 months imprisonment.

13.The dangerous drugs charge is separate and distinct from the burglary charges for which a consecutive sentence is appropriate.  In the special circumstances of the case I am prepared to order the sentence to be served wholly concurrent to the sentence on charges 1 & 2.

14.The defendant is sentenced as follows:

Charge 1 - 2 years and 8 months imprisonment;

Charge 2 - 2 years and 8 months imprisonment; and

Charge 3 - 6 months imprisonment;

All sentences ordered to be served concurrently.