HKSAR v. TANG SAI HO

DCCC 919/2013
DCCC 921/2013
(Heard together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 919 & 921 OF 2013

____________

____________

REASONS FOR SENTENCE

1.  You have pleaded guilty to two charges of robbery and one charge of theft, contrary to sections 9 & 10 of the Theft Ordinance, Chapter 210; one charge of trafficking in dangerous drugs, one charge of possession of dangerous drugs and one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to sections 4, 8 and 36 of the Dangerous Drugs Ordinance, Chapter 134.

DCCC 921/2013

2.  In summary at about 9 p.m. on the 7 June this year Madam Leung was walking home alone near the junction of Tung Wui Road and Kam Wui Road in Yuen Long.  Whilst riding a bicycle you pushed Madam Leung from behind causing her to fall on the ground and then you snatched her handbag.  When Madam Leung tried to take her handbag back you slapped her on the face and then fled on your bicycle with her handbag.   Fortunately Madam Leung did not sustain any injuries. 

3.  Eight days later on the 15 June you stole a bicycle which had been left unsecured near Tai Hong Wai on Kam Tin Road.  On the same day at about 10.20 p.m. you robbed another lady who was walking alone on Kam Tin Road.  Madam Lau was talking on her smart phone when you snatched the phone from behind and grabbed her neck.  You were however unable to snatch her handbag.  You then pushed Madam Lau on the ground and fled on a bicycle.  Fortunately Madam Leung also did not sustain any injuries.

4.  At about 9 a.m. on the 23 June you were intercepted by patrolling police officers on Kam Tin Road as you were about to ride the bicycle stolen on the 15 June.  At the same time Madam Leung was on a police vehicle looking for the robber.  As the police vehicle passed the point of interception Madam Leung identified you as the robber. 

5.  You were then arrested for robbery.  Under caution you admitted both robberies and the theft of the bicycle.  A wallet stolen from Madam Leung during the robbery was found on you.  No other property from the robberies was recovered.  Madam Leung lost her handbag valued at $15,000 together with a smart phone and two chargers valued at $5,300, cash of $1,500, three bank cards and her identity card, home visit permit and octopus card.  Madam Lau lost her phone valued at $5,000.

DCCC 919/2013

6.  After being arrested for the robbery the police searched you and found one plastic bag containing 2.86 grammes of ketamine and one plastic bag containing 0.19 gramme of cocaine.  Under caution you admitted the drugs were for your own consumption.  You then tried to flee because you feared the police would search your home where more drugs were kept.

7.  In the police station you told the police why you had tried to run away.  The police then conducted a search of your residence where they found a plastic bag containing 100 grammes of ketamine; 12 empty transparent re-sealable plastic bags; an electronic weighing scale; a betting ticket and a plastic straw containing 0.01 gramme of ketamine.  Under caution you admitted that the 100 grammes of ketamine were for dividing and selling to others and that the betting ticket and plastic straw were used for inhaling ketamine.  In a subsequent video interview you said that some of the ketamine was for self-consumption and some for selling to others.

8.  In passing sentence I have carefully considered everything said on your behalf by Mr Yip together with your letter of mitigation.  I take into account that you have no prior convictions for robbery or trafficking in dangerous drugs.   

DCCC 921/2013Robbery

9.  No knife or weapon having been used the proper basis for sentence is that which is appropriate for an unarmed robbery.  The starting point for unarmed robbery is generally no more than 4 years imprisonment (see for example see R v Yau Kwok Tung [1987] HKLR 782 as applied in HKSAR v Ting Chiu[2003] 3 HKLRD 378 and HKSAR v Lam Ka Hung CACC 294/2003). 

10.  Whilst minimal violence was used with no injuries sustained by either lady they were clearly targeted being women walking alone at night and therefore vulnerable to attack. Taking into account you acted alone I am satisfied the proper starting point after trial for each robbery is 3 years and 3 months imprisonment (see for example HKSAR v Ku Kwok Wai & another [2012] 4 HKLRD 563).  Giving you full credit for your pleas of guilty reduces the sentence on each of the robberies to 2 years and 2 months imprisonment. 

Theft

11.  I am satisfied in the circumstances that the proper starting point after trial for theft of an unsecured bicycle valued at $650 and which was recovered is 3 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 months imprisonment.

Totality

12.  Mr Yip submits that the two robberies and the theft having been committed in the same month concurrent sentences are appropriate.  I disagree.  The robberies are on two different victims on two different days. Consecutive sentences are appropriate subject to totality of sentence to be served.  I am satisfied a total sentence of 3 years and 3 months imprisonment is appropriate for the two robberies.  The prosecution having confirmed that without your confession to the second robbery they would not be able to prove you were the robber.  In these circumstances I reduce the total sentence on the two robberies to 3 years imprisonment (see HKSAR v Ma Ming CACC 23/2012).  

13.  Although the theft charge is separate and distinct I am satisfied the sentence should be made concurrent to the sentence on the robbery charges.

DCCC 919/2013 Trafficking in dangerous drugs.

14.  In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 50 and 300 grammes sentence after trial falls within the range of 6-9 years imprisonment. I am satisfied the proper starting point after trial for 100 grammes of ketamine is 6 years and 6 months imprisonment.

Own use

15.  Mr Yip submits there should be a reduction in the starting point by 6 months to reflect that a small quantity of the ketamine was for your own use.  When arrested by the police at your home you said the drugs were for dividing and selling to others and only later at the police station  during a video interview did you say some of the ketamine was for your own use.  Whilst this gives cause to hesitate before accepting some of the drugs may have been for your own use taking into account you were sent to the DATC in 2004; that you have a recent previous conviction for possession of drugs for which you were again sent to the DATC in 2011 and equipment for inhaling ketamine was found in your home, I am prepared to accept that a small quantity of the ketamine may have been for your own use.

16.  In deciding how much weight should be attached to the fact some of the drugs may have been for your own use I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561. 

17.  Taking into account the quantity of ketamine; the packaging together with an electronic weighing scale and several empty re-sealable bags suitable for trafficking; possession of drugs carries a sentence in any event; and the latent risk factor, I agree with Mr Yip the starting point should be reduced by 6 months to 6 years.  Giving you full credit for your plea of guilty reduces the sentence to 4 years imprisonment.

Possession of ketamine and cocaine and possession of apparatus fit and intended for inhalation of ketamine

18.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months. Taking into account the quantities of ketamine and cocaine I am satisfied a starting point of 12 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 8 months imprisonment.

19.  For possession of apparatus I agree with Mr Yip 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

20.  Whilst the possession of drugs also involved cocaine I am satisfied having taken into account a small quantity of the ketamine may have been for your own use that concurrent sentences for all the drug offences is appropriate.  Unlike the second robbery the confession to the drugs being in your home before the police knew about that does not attract a further reduction in sentence.  Whilst this may have led to the police going to your home earlier the police as part of normal procedure would have conducted a search on your residence at which time no doubt they would have found the ketamine.  

Meaningful discount

21.  Mr Yip submits that concurrent sentences are appropriate for all six offences, the offences being closely linked by the fact that you are a drug addict and that the offences were committed by you to support your drug addiction.  I have no hesitation in rejecting this submission.  The robberies are separate and distinct offences from the drug offences.  Whilst your need for drugs may provide the reason for your offending this is not a good excuse for committing robbery (see HKSAR v Li Siu-wah CACC 389/2008). 

22.  I am satisfied wholly consecutive sentences are appropriate. However four years for the drug offences and three years for the robbery offences make a total of seven years imprisonment which is the maximum sentence this court can impose.  Sentencing policy requires that sentence must reflect credit for your guilty pleas by imposing a total less than the jurisdictional limit.  Whilst this may well result in an unwarranted windfall as a result of the prosecution bringing all the charges together in the District Court I must nevertheless give you what has been termed a meaningful discount from the maximum of 7 years.  I am satisfied in the circumstances a total sentence of 6 years imprisonment is appropriate (see for example HKSAR v Li Yan [1998] 4 HKC 12).

Sentence

23.  You are convicted and sentenced as follows:

DCCC 919/2013

CHARGE 1 – 8 MONTHS IMPRISONMENT;

CHARGE 2 – 4 YEARS IMPRISONMENT

CHARGE 3 – 2 MONTHS IMPRISONMENT;

SENTENCE ON CHARGES 1, 2 & 3 TO BE SERVED CONCURRENTLY.

DCCC 921/2013

CHARGE 1 – 2 YEARS AND 2 MONTHS IMPRISONMENT;

CHARGE 2 – 2 MONTHS IMPRISONMENT CONCURRENT TO CHARGES 1 & 3;

CHARGE 3 – 2 YEARS AND 2 MONTHS IMPRISONMENT; 10 MONTHS CONSECUTIVE AND 1 YEAR AND 4 MONTHS CONCURRENT TO CHARGE 1;

TOTAL SENTENCE ON THE THREE CHARGES IS 3 YEARS IMPRISONMENT OF WHICH 2 YEARS IS TO BE SERVED CONSECUTIVE AND 1 YEAR CONCURRENT TO THE SENTENCE IMPOSED IN DCCC 919/2013 MAKING A TOTAL SENTENCE TO BE SERVED BY YOU OF 6 YEARS IMPRISONMENT.