HKSAR v. CHONG WAI KEUNG

DCCC 287/2018

[2019] HKDC 115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 287 OF 2018

---------------------------

----------------------------

-----------------------------------------

REASONS FOR SENTENCE

------------------------------------------

1.  The defendant pleaded guilty to 5 charges of theft, 1 charge of possession of dangerous drugs and 1 charge of possession of a Part I poison.

Facts

2.  Over a period of 4 weeks and 4 days, on 5 different occasions, the defendant stole goods that were unattended.  All thefts took place in the Kowloon Bay industrial area.  Two were from inside goods vehicle, while the rest were from premises.

3.  The total value of the stolen goods is estimated at around $611,000.

4.  The thefts were caught on CCTV and the defendant identified and tracked down to his place of residence.

5.  Upon search, 6.62g of herbal cannabis, 0.47g of a crystalline containing 0.46g of methamphetamine hydrochloride (commonly known as ‘ice’), and 3 tablets containing sildenafil (a chemical component of Viagra and other like medications) were found.  The cannabis and ice form the subject matter of the possession of dangerous drugs charge, while the 3 tablets that of the possession of Part I poison charge.

6.  Under caution, the defendant admitted to the thefts.  He claimed that he was looking for work when he happened to see the attended goods and he took them out of greed.  The goods he stole in relation to charge 5 were sold to a friend for RMB15,000, the rest for a few hundred dollars.

7.  WeChat messages on the defendant’s phone show that the defendant had text conversations with someone concerning charges 2, 3 and 5.  The defendant also sent photographs of the stolen goods to this person negotiating for their sales.

Previous convictions

8.  The defendant has 5 previous convictions, with 4 involving an element of dishonesty.  The first 4 were for crimes committed from 1996 to 2010.  His last conviction was in February 2016 when he was sentenced to 2 months’ imprisonment for theft at the Kowloon City Magistracy.  He was last discharged from prison on 4 March 2016.

Mitigation

9.  The defendant is 43.  He was born and educated in Hong Kong up to Form 5 level.  He was unemployed at the time of arrest and was receiving $3,000 per month from CSSA.  The defendant resides with his parents.  He has a 3-year-old son who lives with his mother in mainland China.  The defendant would send money for their living expenses as best he could.

10.  In his letter, the defendant told the court how he used to work as a professional driver but had lost himself to drugs.  He committed the present offences due to the pressure of trying to come up with money for his father’s medical expenses, his child’s living expenses, as well as his own drug expenses.  He is remorseful and seek leniency.

11.  Deacon Peter Wong wrote on behalf of the defendant and informed the court that the defendant is receptive to his religious directive and has shown that he is remorseful and willing to make a change.

Sentence

12.  The maximum sentence on conviction upon indictment for the offences of theft, possession of dangerous drugs, and possession of part I poison is, respectively, that of 10 years’ imprisonment, 7 years’ imprisonment, and a level 6 fine and 2 years’ imprisonment.

13.  In the District Court case of HKSAR v Chow Hong-wing and 2 others, DCCC 31/2010, the defendants stole valuable goods left unattended, also in the Kowloon Bay industrial area.  The learned judge observed that it was an area where goods, often valuable, are delivered, unloaded, collected and likely to be left unattended occasionally.

14.  In relation to one of the charges (charge 4 there), two of the defendants got out from a vehicle driven by a third defendant and walked around to scout the area for valuable goods worth stealing.  Once found, they waited for the opportune moment to steal.  One acted as a lookout, and the other did the taking.  The boxes were then loaded on to the vehicle driven by the third man, who then immediately drove to a logistics company nearby to dispose of the stolen boxes by sending them to mainland China.

15.  The judge found that those facts showed planning and not a spur-of-the moment theft.  The defendants worked as a team, a relevant factor in sentencing. Another significant factor was the value of the stolen goods.  In this charge, the two boxes were worth $185,869.

16.  The learned judge adopted a starting point of 24 months’ imprisonment for this charge in relation to the lookout and the snatcher.  The getaway driver was charged with handling but the judge did not find it necessary to differentiate between the sentences since they all played important roles in the theft, and the same starting point was adopted.

17.  I find this theft more serious than the ones in our case because of the involvement of three people.

18.  In the District Court case of HKSAR v Leung Po Yiu, DCCC 902/2014, the defendant was a driver of a goods vehicle and had access to the loading areas in various warehouses, where he took unattended items on 3 different occasions in a 3-month period.

19.  In the first theft, he took three cartons of watches with a total of 232 watches valued at $241,074.  In the second theft, he took 14 cartons of electrical components which were placed at the tailboard of a lorry.  The total value was US$74,986.38 (about HK$580,000).

20.  In the final theft, he was found holding two cartons of computer components valued at US$110,924 (about HK$863,000), which he admitted to have stolen from an unattended van at the unloading area of Nangyang Plaza.

21.  The learned judge accepted that although the thefts were opportunistic in nature, they were targeted at items which are likely to be found to be of value.

22.  The judge adopted a starting point of 24 months’ imprisonment for each of the 3 charges, reduced to 16 for the defendant’s plea of guilty. 8 months of charge 2 and charge 3 was ordered to be served consecutively to the sentence of charge 1, taking the overall total to 32 months’ imprisonment.  A 1-month reduction was granted for the offer to compensate, with the overall final sentence of 31 month’s imprisonment after plea.

23.  At over HK$1.5 million, the total value of the stolen goods there is much higher than ours.

24.  In sentencing in our present case, I will first adopt the observations of the learned judge in the said case of Chow Hong-wing in relation to the Kowloon Bay industrial area being an area where one is likely to find goods, often valuable goods, unattended while they await to be moved.

25.  Based on the fact that the defendant was able to make use of the small windows of time where the goods were left unattended, I find that it is the only reasonable inference that the defendant was scouting in the area for such opportunities to steal.  As such, there was some degree of planning in the thefts and that will be taken into consideration when deciding on the appropriate sentence.

26.  The total value of goods stolen is around $611,000.  Although lower than that in Leung Po Yiu, it is still a relatively substantial amount.  The thefts all took place in the same locality and within a not too short time period of slightly more than 4 weeks.  The defendant was obviously targeting the area and can be said to have been on a spree.

27.  In relation to charge 1, the defendant had entered the warehouse to take the box of goods away.  This act is almost akin to burglary of a non-domestic premises, for which the usual starting point is 2 years and 6 months’ imprisonment. Having said that, the defendant has not been so charged and I must bear that in mind when deciding on the starting point.

28.  Taking into consideration the not unsubstantial value of goods stolen, and the planning involved, I find that a starting point of 18 months’ imprisonment for each of the 5 theft offences is appropriate.

29.  Given the defendant’s timely guilty pleas, he is granted the full one-third discount and is sentenced to 12 months’ imprisonment on each of charge 1 to 5.

Charge 6

30.  Since the defendant is going to face a sentence of imprisonment of more than 9 months in the same proceedings, I do not have to first consider a report on the suitability of the defendant for cure and rehabilitation before imposing a custodial sentence.

31.  According to the case of HKSAR v Mok Cho-tik, CACC 165/2000, 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’ imprisonment.

32.  For the possession of the small quantity of herbal cannabis in charge 6, the usual sentence would be a fine for a first offender.  The ‘ice’ is the dangerous drugs with the more potent narcotic effects.  For the small quantity of ‘ice’, I find that a proper starting point is that of 12 months’ imprisonment.  I find that the sentence for the possession of the cannabis can be subsumed by this term of imprisonment.

33.  The defendant is, therefore, sentenced to 8 months’ imprisonment for charge 6 after plea.

Charge 7

34.  Had the defendant committed this offence on its own, his sentencing would have been before a magistrate and the sentence is likely to be a fine.

35.  Given there are only 3 tablets involved and that they were for the defendant’s own use, and taking into consideration the dire financial situation that the defendant is in, I will sentence the defendant to 2 weeks’ imprisonment for this charge, after adopting a 3 weeks starting point.

Totality

36.  Given that the thefts took place over a 4-week period and on different occasions, part of their sentence should be served consecutively.

37.  The present set of theft offences is the fifth time that the defendant has committed crimes relating to dishonesty.  Of those 4 previous convictions, the first three were between 8 to 22 years ago.  The defendant’s last conviction was also for theft and that was in February 2016.  I find that the fact that the defendant is a repeated offender will have to be considered when deciding on totality.

38.  Taking a step back, I will order that 4 months of each of the sentence in charges 2 and 3, and 5 months of each of the sentence in charges 4 and 5 be served consecutively to the 12 months sentence of charge 1, the balance concurrently, bringing the total sentence for the theft charges to 30 months’ imprisonment.

39.  In relation to the possession of dangerous drugs charge, I order that 4 months of the sentence be served consecutively to the sentence for the theft charges, taking the total sentence to that of 34 months’ imprisonment after plea.

40.  In relation to the possession of Part I poison charge, I order the sentence to be served wholly concurrently to the sentence of the other charges.

41.  The final total sentence for all 7 charges is, therefore, 34 months’ imprisonment after plea.