HKSAR v. LAM SHUK MING

CACC 97/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 97 OF 2014

(On Appeal From DCCC NO. 60 of 2014)

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JUDGMENT
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Hon Cheung JA (giving the Judgment of the Court):

1.  The appellant was convicted by H H Judge Dufton on the appellant’s own plea of the following four offences, namely :

1) Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance (Cap. 210) (Charge 1);

2) Possession of 6.49 gammes of methamphetamine hydrochloride (‘Ice’), contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (‘DDO’) (Cap. 134) (Charge 2);

3) Possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the DDO (Charge 3); and

4) Possession of zopiclone tablets, a poison included in Part I of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance (Cap. 138) (Charge 4).

2.  The Judge sentenced the appellant to a term of imprisonment of 3 years and 2 months which is made up as follows :

1) Charge 1 : a starting point of 2 years and 6 months’ imprisonment, with a one third discount because of the guilty plea, resulting in a sentence of 1 year and 8 months imprisonment;

2) Charge 2 : a starting point of 27 months’ imprisonment (15 months plus enhancement of 12 months due to latent risk of dissemination of the drugs), with a one third discount because of the guilty plea, resulting in a sentence of 1 year and 6 months’ imprisonment;

3) Charge 3 : a starting point of 3 months’ imprisonment, with a one third discount because of guilty plea, resulting in a sentence of 2 months’ imprisonment; and

4) Charge 4 : a starting point of 3 months’ imprisonment, with a one third discount because of guilty plea, resulting in a sentence of 2 months’ imprisonment.

3.  The sentences of Charges 2 to 4 (the ‘drug charges’) are to run concurrently but consecutive to Charge 1 (the burglary charge).  Pursuant to leave granted by McWalters JA of this Court, the appellant now appeals against the sentence.

Facts

4.  The facts are straight forward.  The burglary took place on 19 September 2013 in a residential flat which was under renovation with no one residing there.  The appellant was arrested by the Police of the drug charges on 27 September 2013.  She admitted to the Police that she had committed the burglary charge.  She entered the flat when she discovered a key at the iron gate of the flat.  After unlocking the iron gate of the flat, she invited the 2^nd defendant who was the co-accused in the trial below to take away valuable items inside the flat.  The owner of the flat discovered that two televisions, one computer monitor, one massage machine, one vacuum cleaner, one dehumidifier and one set of water purification equipment belonging to him were stolen.  A grinding machine, one electric drill and one tile cutter belonging to the decoration workers were also stolen.  The total value of the stolen items was $41,500.  All the stolen items had been recovered except for one television, the computer monitor and the electric drill.

5.  In respect of the drug charges, the appellant was arrested by the Police in the street in which the drugs and apparatus were found in her handbag.  She admitted that the drugs were for her own consumption and she had purchased the zopiclone without prescription.

The burglary charge

6.  The Judge considered the case of the HKSAR v Yeung Kwok Sang CACC 4/2006 which adopted a starting point of 2 years and 6 months’ imprisonment for burglary of a domestic premises which were unoccupied and under renovation. The Judge adopted the same starting point after taking into account the premises were not occupied and the opportunistic nature of the burglary. 

7.  Mr H Y Wong for the appellant argued that the starting point should be even lower because of the opportunistic nature of the offence and the Judge had apparently forgotten that all the stolen goods except one television, a computer monitor and one electric drill were recovered.

8.  We disagree. The Judge accepted the opportunistic nature of the burglary only because the prosecution agreed that the appellant might have entered the flat as a result of someone leaving the key in the door.  It is of note that the appellant was not living in the building where the flat was situated.  As the Judge himself remarked that ‘… although one may wonder why you were on the 2/F of 83 Tam Kung Road in the early hours of the morning the burglary can, to a degree, be said to be opportunistic’. 

9.  As to the recovery of the stolen goods, there is no evidence adduced below of the value of the goods that were recoverd.  The goods that were missing were certainty not goods of no value as in the case of HKSAR v Chau Man Ying CACC 439/2011 where a two-year imprisonment of an opportunistic burglary of a derelict and vacant building were set aside by a sentence which permitted the appellant’s immediate release.  This Court described the goods that were taken by the appellant as follows:

‘ 9. … although the belongings were the property of the developers, very few of them would have been of any interest to them and the value of the entire pickings by the appellant was very low.’

10.  Further the appellant committed the burglary with the 2^nd defendant.  In our view the starting point of 2 years and 6 months for the burglary charge is appropriate.

The problem

11.  The problem with the sentence imposed by the Judge in this case lies with the enhancement in respect of possession of Ice and the totality of the sentence.

Enhancement

12.  In respect of the enhancement, whilst the Judge was correct to enhance the starting point of 15 months for possession of Ice because of the latent risk that the appellant might share the drugs with others because when she was stopped on the street, the drugs were packed in eight plastic bags, she had two previous convictions for trafficking and she was unemployed although supported by her ex-husband, we are of the view that the length of the enhancement is excessive.  A 12-month enhancement amounts to 80% of the starting point of 15 months’ imprisonment.  In our view the appropriate enhancement in the circumstances of the case should be six months, rendering the total starting point to be 21 months.  After the one third discount, the sentence for Charge 2 should be 1 year and 2 months.

13.  Mr Wong does not challenge the sentences of Charges 3 and 4.

14.  Like the Judge, we consider the sentences of the drug charges should be concurrently served namely, a total of 1 year and 2 months.

Totality

15.  In respect of the totality of sentence, whilst the burglary charge is separate and distinct from the drug charges, we consider the overall criminality of this case will be adequately reflected by a total sentence of 2 years and 8 months which is based on a notional starting point of four years before discount. This is achieved by ordering 1 year of the sentence under the drug charges to be served consecutively to the 1 year and 8 months’ imprisonment of the burglary charge.

Conclusion

16.  Accordingly the appeal is allowed as indicated.