HKSAR v. Lam Chi Wai and Another

DCCC 783/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 783 OF 2014

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REASONS FOR SENTENCE

1.Ng Siu Yuen you have pleaded guilty to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance (charge 2); one charge of possession of 0.76 gramme of a crystalline solid containing methamphetamine hydrochloride (“ice”), contrary to section 8 of the Dangerous Drugs Ordinance, Chapter 134 (charge 3); and one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36 of the Dangerous Drugs Ordinance (charge 4).

2.In summary in the early hours of the 26 May last year D1 together with another male burgled a watch shop in the Sha Kok Shopping Centre in Shatin.  Wearing a mask and gloves D1 used a hammer to smash the display window of the shop and stole 22 watches valued at around $30,000.   

3.One of the watches was found during a search of the residence of your son.  Under caution you admitted you knew D1 was going to commit the burglary; D1 told you he had committed the burglary of the watch shop; several days after committing the burglary D1 gave you one of the watches which you believed was stolen in the burglary; and that you gave this watch to your son. 

4.During a search of your home on the 27 June the police seized one plastic bag containing the ice and one plastic bottle containing traces of ice and a lighter.  Under caution you admitted you used the bottle and lighter to inhale the ice.

5.In passing sentence I have carefully considered everything said on your behalf by Mr Tze together with the letters of mitigation.  I take into account that you suffer from psychiatric illness and that your father has terminal lung cancer.  I have also considered the content of the DATC report called pursuant to section 54A of the Dangerous Drugs Ordinance. Notwithstanding your long drug history there does appear some hope for your future rehabilitation, in particular that the relationship with your family has improved whereby the whole family show unfailing support for your rehabilitation. 

6.There are no guidelines for handling stolen goods.  In passing sentence I take into account the aggravating and mitigating factors identified in R v Bernard Webbe[2002] 1 Cr. App. R. (S) 82 as applied in HKSAR v Xiao Wei [2003] 3 HKLRD 1063.  The court in Webbe listed nine factors which may be regarded as aggravating the offence.

7.In Xiao Wei the applicant was convicted after trial of handling a watch stolen in a domestic burglary.  The Court of Appeal considering the nature of the burglary; that the Applicant did not know the watch had been stolen in a burglary; the value of the watch being about $11,200 was not especially high; his profit was said to be limited to $1,000; and by using his own identity card to pawn the watch revealed a considerable lack of sophistication by providing details through which he could be (as indeed he was) traced, said a starting point of 18 months imprisonment was appropriate, which was increased by 9 months by reason of being a persistent offender.

8.On your behalf Mr Tze tells the court that out of momentary greed you accepted the watch which was given to you by D1 as a gift about 10 days after the burglary. You then gave the watch to your son.  By reason of your psychiatric illness I am told you did not consider the serious consequences of your action.  I do not accept that your culpability is reduced in any way by your psychiatric illness.  I am however prepared to accept the submission that this case is less serious than the handling of the watch in Xiao Wei.   

9.Taking into account the watch was obtained in a burglary of a watch shop, a fact known to you; the value of the watch as told by Mr Tze is around $1,300; and the circumstances of your handling I am satisfied the proper starting point after trial is 8 months imprisonment.

10.Although this is your first conviction for handling stolen goods you are in my view properly to be regarded as a persistent offender having appeared in court on eleven occasions, amassing twenty eight convictions, all for theft except one for possession of dangerous drugs.  Applying the principles in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 I am satisfied the starting point is to be increased by 1 month to 9 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence on charge 2 to 6 months imprisonment.

Possession of ice

11.Due to your long history of drug addiction and that you have served four DATC orders a further DATC order is not recommended.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.

12.Taking into account the quantity of ice is under 1 gramme I am satisfied a starting point of 9 months imprisonment is appropriate (see for example HKSAR v Wan Choi Fai HCMA 250/1998).  Giving you full credit for your plea of guilty reduces the sentence to 6 months imprisonment.

Possession of apparatus fit and intended for inhalation of ice

13.For possession of apparatus I am satisfied that a starting point of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 2 months imprisonment. 

Totality

14.I am satisfied concurrent sentences are appropriate for possession of ice and possession of apparatus fit and intended for inhalation of ice.  The two charges are however entirely separate and distinct from the handling charge for which a consecutive sentence is appropriate.  Considering totality of sentence and as your father was diagnosed with cancer after your arrest I am prepared as an act of mercy to order 3 months consecutive and 3 months concurrent to the handling charge making a total sentence to be served by you of 9 months imprisonment, which I am satisfied properly reflects your criminality on the three charges. 

15.You are convicted and sentenced as follows:

Charge 2 – 6 months imprisonment;

Charge 3 – 6 months imprisonment;

3 months consecutive and 3 months concurrent to charge 2; and

Charge 4 – 2 months imprisonment concurrent to charges 2 & 3.