HKSAR v. Wong Ka Tuen

DCCC 188/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 188 OF 2014

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Before: HH Judge Douglas T.H. Yau

Date: 28^th May 2014 at 12:01 pm

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of burglary (charge 2), one charge of possession of a prohibited weapon (charge 3), one charge of trafficking in dangerous drugs (charge 4) and one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug (charge 5) and was duly convicted.

2.He pleaded not guilty to one charge of theft (charge 1). On the application of the prosecution, charge 1 was ordered to be kept on file, not to be proceeded with without the leave of court.

Summary of Facts

Charge 2

3.Lift maintenance workers left their tool box inside a secured machinery room at about 3:55pm on 31 August 2013 after conducting lift refurbishing work at Block B of WT Centre in Kwai Chung. Upon returning at about 11am 4 days later, they found the tools particularized in charge 2 missing. It turned out that the lock on the machinery room door was defective and the door could easily be forced open.

4.Police tasked with the investigation of the burglary visited WT Centre on 2 September 2013. They located a closed circuit television camera outside room 1309 which was pointed towards the machinery room. Police officers therefore knocked on the door of room 1309 and the defendant answered the door.

Charge 3

5.Police requested to view the closed circuit television footage but the defendant claimed that the system was not working. Police officers entered room 1309 for enquiry and found an extendable baton on the floor inside the room. The defendant said it was a Police baton. The defendant was arrested and cautioned for possession of prohibited weapon. Under caution the defendant said that the baton was not his and that it belonged to his friend Lam Chi-ho.

6.Upon search, the missing tools in charge 2 were found in an attic inside room 1309. The defendant was asked about them and said nothing. The defendant was then arrested for burglary, who denied the offence under caution.

Charges 4 and 5

7.Upon further search, the following items were found. 2 folding knives, 1 Japanese knife with sheath, 1 handsaw in the shape of a knife, 1 plastic bag containing traces of a powder containing ketamine, 1 plastic bag containing 1.45g of a crystalline solid containing 1.41g of methamphetamine hydrochloride; another plastic bag containing 3.24g of a crystalline solid containing 3.13g of methamphetamine hydrochloride and 3 “ice pots” made by glass flasks, 2 of them containing liquid containing traces of methamphetamine while the remaining one was broken.

8.Through inquiry with the landlord of room 1309, Police confirmed that the defendant was the tenant and occupier of the room.

9.In the subsequent video recorded interview, the defendant claimed that he worked as a tattoo artist and room 1309 was both his work place and residence. He rented the room and kept the key. The defendant admitted that he knew the location of the machinery room, but he denied burgling the place. The baton was a gift from someone and the defendant kept it. The defendant admitted to purchasing the Japanese knife, handsaw and folding knives. The Japanese knife was for cutting meat. As for the 3 “ice pots”, the defendant said 2 of them were made by him for inhaling “ICE” while the other one was bought by him from a stranger for inhaling “ICE”. The defendant admitted to being in possession of the ketamine and ICE found inside room 1309. The defendant stated that he supplied ICE to a Mr. Lam free of charge as a treat for a friend and that Lam had been to room 1309 for a few times before and the defendant treated Lam with ICE on those occasions. The defendant however only treated Lam and not others, because he had known Lam for a long time.

10.Expert examination confirmed that the extendable baton falls within the definition of “prohibited weapon” of Weapons Ordinance, Cap. 217.

11.The defendant admitted at the final paragraph of the summary of facts that at the time of the offence, the defendant entered the machinery room as a trespasser and stole therein.

Previous convictions

12.The defendant has 51 convictions from 33 court appearances. There was one previous conviction for trafficking in dangerous drugs in 1997 when he was sentenced to 4 years’ imprisonment.

13.There are 3 previous convictions for burglary, with the last one back in 1996. There are however 30 convictions for theft, convictions that involve dishonesty, with the latest one in October 2011 when he was sentenced to 4 months’ imprisonment.

14.There is 1 previous conviction for possession of equipment fit and intended for inhaling dangerous drugs in August 2001 when the defendant was sentenced to the DATC. There are also 11 previous convictions for possession of dangerous drugs, with the last one being on 31 October 2012. These possession of dangerous drugs convictions are relevant to the ground of mitigation of self-consumption being put forward by the defendant in relation to the trafficking in dangerous drugs charge.

15.Lastly, there is 1 conviction for possession of prohibited weapons in 2004 when the defendant was sentenced to 1 month’s imprisonment, and 1 conviction for possession of offensive weapon in a public place in August 2012 when he was sentenced to 4 months’ imprisonment.

Mitigation

16.The defendant is 43 and single. He has good relationship with his family which included his parents, elder brother, younger brother and a younger sister. The defendant worked as a decoration worker as a painter after he left school and first became a tattooist in 1996 after completing his training.

17.The defendant set up his own tattoo parlour in June 2013. He was making substantial amount of money from his tattoo work, earning more than $25,000 in the 2 month period of July and August.

18.In relation to the burglary, it is the defendant’s case that the burglary was an opportunistic crime. Since the defendant’s room was on the same floor of the machinery room, when the defendant walked pass one day and found it left opened, he went in, saw the 2 boxes and just took them.

19.In relation to the baton, it is the defendant’s case that it was a gift from a friend and the defendant had never brought it outside of his room. He had no use for it and would not have bought something like that himself. Since it was a gift, he just kept it lying around on the floor inside his home.

20.The defendant’s counsel referred to the case of HKSAR v Wu Kim Wan HCMA 1141/2001 where the appellant pleaded guilty to a similar charge. There the appellant bought the weapon in Hong Kong and brought it to China for his own protection and then brought it back. He was sentenced to 2 months’ imprisonment in the magistracy, but the sentence was replaced by a fine of $2,500 upon appeal.

21.Comparing that case to ours, the defendant had not used the baton, just left it at home and had not brought it outside at all.

22.In relation to the trafficking charge, it is the defendant’s case that it is a case of social trafficking. What happened was that the defendant had a tattoo customer called Ah Bor, who asked the defendant if he would like some ICE and that Ah Bor could deliver the drug to him. The defendant agreed and that was how he came to be in possession of the ICE in charge 4. It is the defendant’s counsel’s submission that the defendant was not a drug addict at the time of the commission of the offence. The defendant could just take it or leave it. The defendant later gave further instructions and confirmed that he was in fact a drug addict.

23.It is the defendant’s case that the social trafficking took place when his friend Mr. Lam visited and on 2 to 3 occasions the defendant had offered Mr. Lam a few puffs of ICE free of charge. It is the defendant’s estimate that of the 4.54g of ICE content, about 1.5g only was consumed by Mr. Lam, with the remaining 3.04g for the defendant’s eventual own consumption.

24.Counsel for the defendant relies on the case of HKSAR v Wong Suet Hau & another, CACC 366 and 487 of 2000 to suggest that the defendant should only be sentenced for trafficking based on the smaller quantity after taking into account what the defendant would have kept for his own consumption.

25.Apart from the fact that the trafficking was technical and relatively minor, it is the defendant’s case that given his newfound source of income as a tattoo artist, he was well able to support his own drug addiction. Although counsel for the defendant initially submitted that the defendant was not a drug addict, the defendant’s previous convictions seem to suggest otherwise and that in turn should be one of the factors in support of the defendant’s assertion that most of the ICE were for his own consumption.

26.In terms of totality, counsel submitted that the court should be as lenient as possible and order part of the sentences to be served concurrently.

Sentencing guidelines

Burglary (charge 2)

27.It is trite law that the proper starting point in sentencing for burglary of a non-domestic premises for someone with a clear record and absent any mitigating or aggravating circumstances is that of 2 and a half year’s imprisonment.

Trafficking in dangerous drugs: ICE (charge 4)

28.The sentencing guidelines for trafficking in methamphetamine hydrochloride is found in the case of AG v Ching Kwok-hung [1991] 2 HKLR 125 as amended in HKSAR v Capitania [2004] HKCU 926. For ICE of up to 10g, the starting point should be between 3 to 7 years’ imprisonment.

Sentence

Charge 2

29.I accept what was put forward in mitigation and find that it was an opportunistic burglary. This finding is supported by the summary of facts stating that the lock on the door of the machinery room was found to have been defective and the fact that the defendant lived on the same floor as the machinery room.

30.This is however not the defendant’s first burglary conviction and the defendant is not of clear record. While these are not aggravating factors, they certainly are not mitigating factors either.

31.I will adopt a starting point of 12 months’ imprisonment, discounting by one third in recognition of the defendant’s guilty plea and sentence him to 8 months’ imprisonment in relation to charge 2.

Charge 3

32.The maximum sentence for the possession of prohibited weapon under s.4 of the Weapons Ordinance, Cap.217 is that of a fine of $10,000 and to imprisonment for 3 years.

33.This is not the defendant’s first conviction for this type of offence and his last conviction was in 2012, although it was for the different offence of possession of an offensive weapon in a public place under s.33 of the Public Order Ordinance, Cap.245.

34.I do note that the baton was found in the defendant’s home and that there is no evidence at all that he had or was going to be using the prohibited weapon. I take into consideration the case of HKSAR v Wu Kim Wan and find that a fine is appropriate in the present situation.

35.The defendant is fined $5,000 in relation to charge 3, to be paid within 14 days.

Charge 4: Trafficking in dangerous drugs

36.The dangerous drugs involved in this charge is 4.54g of ICE. Applying the guidelines, a proper starting point would be that of 57 months’ imprisonment.

37.I find that given the defendant’s confession to the Police and given the defendant’s evidence of income and the presence of paraphernalia inside his home for smoking ICE, together with the long history of possession of dangerous drugs convictions, the defendant did possess part of the ICE for his own consumption. I will also accept the amount put forward by him in mitigation and find that in relation to the trafficking charge, the defendant will be sentenced based on 1.5g of the ICE being for the purpose of trafficking. For that, I will apply the guidelines and adopt a starting point of 42 months’ imprisonment, discounting it by one third in recognition of the defendant’s guilty plea, resulting in a sentence of 28 months’ imprisonment.

38.As for the simple possession of the remaining 3.04g of ICE, given the appalling record of the defendant in relation to the possession of dangerous drugs, I will adopt a starting point of 18 months’ imprisonment, discounting it by one third in recognition of the defendant’s guilty plea, resulting in a sentence of 12 months’ imprisonment.

39.However, even if the full 4.54g of ICE was for trafficking, I would only have adopted a starting point of 57 months’ imprisonment, resulting in a discounted sentence of 38 months’ imprisonment.

40.I will therefore take that into consideration and sentence the defendant to 38 months’ imprisonment in relation to charge 4.

Charge 5: Possession of apparatus fit and intended for inhalation of a dangerous drug

41.The maximum sentence for this offence is that of a fine of $10,000 and imprisonment for 3 years. Since the defendant has been sentenced to a term of imprisonment of more than 9 months in the same proceedings, s.54A(1) of the Dangerous Drugs Ordinance does not apply and there is no need to call for a DATC report before sentencing the defendant on charge 5.

42.I agree with counsel for the defendant that this offence is tightly linked to the defendant’s commission of charge 4. I will adopt a starting point of 12 months’ imprisonment, reducing it by one third in recognition of the defendant’s guilty plea and sentence him to 8 months’ imprisonment on charge 5. I order the sentence of this charge to be served concurrently to the sentence in charge 4.

Totality

43.I will now have to stand back and consider what would be a proper final sentence in the circumstances of the case.

44.It all started when the defendant decided to steal the contents of the tool box. It was not a very wise move given that the defendant lived right on the same floor of the machinery room. The defendant seems to be someone who could not think clearly about what to do with his life, hence the long list of previous convictions involving thefts and drugs. The eventual sentence must therefore carry an element of deterrence to warn the defendant not to commit further offences in the future.

45.The commission of the burglary had no connection to the commission of the trafficking in dangerous drugs offence, there is no evidence that one had led to the other. They were committed on different days and under totally different circumstances.

46.I will order that 7 months of the sentence in charge 2 be served consecutively to the concurrent sentence in charges 4 and 5, the balance to be served concurrently, making a total sentence of 45 months’ imprisonment.