HKSAR v. HO LAP SANG

DCCC 624/2020

[2021] HKDC 780

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 624 OF 2020

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REASONS FOR SENTENCE

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1.  On 14 February 2020, the defendant Ho Lap Sang was intercepted by the police while he was driving a stolen motorcycle bearing a false vehicle licence in Tin Shui Wai. It turned out that he did not have a valid driving licence for riding motorcycles. Further investigations revealed a number of other offences related to theft, dangerous drugs, prohibited goods (fireworks)  and counterfeit currency notes. He was charged with, pleaded guilty to, and convicted of a total of 15 offences. For the sake of convenience, I will group the offences in accordance with their nature and set out the relevant facts herein.

Charge 1: Theft

2.  Sometime in February 2020, the defendant took the motorcycle bearing registration mark TY 519 (hereinafter referred to as V3), near a bus terminal in Yuen Long.  He abandoned V3 about 600 metres away. 

Charge 2: Theft

3.  On the 24 December 2019, a motorcycle with registration number SU 3119 (chassis number RFGLNA701ES007402, hereinafter referred as V1)  was left by its owner at a parking space in Tuen Mun.  It was found missing on 3 January 2020.

4.  On the 14 February 2020, the defendant was riding V1 in Tin Shui Wai when he was intercepted by a police officer.  At the time, V1 bore the licence plate and registration number SM 7537, which was assigned to a different motorcycle (hereinafter referred to as V2). 

5.  Under caution, the defendant admitted that he stole V1 and modified V1’s ignition switch. 

Charges 3 and 4: Driving without Licence and Driving without Third Party insurance

6.  At the time, the defendant was seen riding V1.  He had no driving licence for motorcycles.  Consequentially, he was not covered by any third-party risk insurance. 

Charges 5 and 6: Forgery

7.  The defendant forged a vehicle licence and number plate of V2, ie SM 7535, and used them on the stolen motorcycle, V1.

Charge 7: Forgery

8.  The vehicle licence of V3 was found in V1’s storage box and by his plea he agreed that it was a forged copy.

9.  Upon search of the storage box of V1, the police found a number of items forming subject matters of the following offences.

Charge 8: Trafficking in a Dangerous Drug

10.  The subject matter of the charge consisted of four small plastic bags, total weight 2.13 grammes containing 1.5 grammes of methamphetamine, an electronic scale, nine empty plastic bags, and four plastic bags containing crystalline solids with no DD content.

11.  Under caution, the defendant contended that some of the ‘Ice’ was for his own consumption and the crystalline solid was food-swelling agent to be mixed with the ‘Ice’ for reselling.

Charge 9: Possession of Apparatus Fit and Intended for the Inhalation of a Dangerous Drug

12.  They include five plastic tubes fit for inhaling ‘Ice’.  Under caution, the defendant admitted that they were to be used for smoking ‘Ice’. 

13.  In the defendant’s wallet, the police seized a number of items forming subject matters of the following offences.

Charge 10: Possession of an ID card relating to another person

14.  The police officer found a Hong Kong ID card, belonging to a woman by the name of Cheong Kei Ngan, in the defendant’s wallet.  Under caution, the defendant explained that it was given by its owner as security for a loan. 

Charge 11: Theft

15.  An Octopus card registered in the name of Ho Chun Ming, a 17-year-old student who had lost it on a taxi in December 2019.  Under caution, the defendant contended that the Octopus card was given to him as a form of payment for the ‘Ice’ sold.

16.  Upon search of the hotel room occupied by the defendant since January 2020, the police found a number of items forming the subject matters of the following charges:-

Charge 12: Possession of Prohibited Goods

17.  It is 4.79 kilogrammes of manufactured fireworks in three packs.  Under caution, the defendant admitted that the fireworks were given as payments for the ‘Ice’ he sold.  He intended to resell it but had not been able to do so.

Charge 13: Possession of Apparatus Fit and Intended for the Inhalation of a Dangerous Drug

18.  Two bottle caps, 61 glass tubes, three glasses, two glass bottles with tubes.  The defendant admitted that they were used for smoking ‘Ice’. 

Charge 14: Having Custody of Counterfeit Currency Notes

19.  There were seven counterfeit notes, including three HK$1,000, three HK$500, and one HK$100.  Each set of them bore identical serial numbers and some of them stamped with the word in Chinese “sample” and “used for practise”.  The defendant admitted that he received them from his customers. He realised that they were counterfeit.

Charge 15: Trafficking in a dangerous drug

20.  They include 12.4 grammes of a crystalline solid on a plastic tray containing 0.13 grammes of ‘Ice’, 15.1 grammes of crystalline solid in three plastic bags containing a total of 0.18 grammes of ‘Ice’.

21.  Under caution, the defendant stated that the ‘Ice’ found on the plastic tray was mixed with swelling agent.  One of the two bags of ‘Ice’ were returned by customers for poor quality.

Discussion

22.  This is a mixed bag of offences of different nature which normally would not appear in the same hearing.  I will put them in different categories and consider their overall capability.

Car theft and related offences

23.  They are Charges 1 to 2, 5, 6, and 7.  There are two motorcycles involved and the related forgeries show that the theft were premeditated and not opportunity crimes.  The values of the motorcycles are high and the owners faced serious financial implication upon losing them.  In the case of HKSAR v So Pak Lun, CACC 276/2013, a term of 2 years imprisonment as a starting point was considered appropriate. 

24.  The aggravating factor in this case is that the defendant drove the stolen vehicles without licence or third-party insurance.  In addition, he had taken the trouble of replacing the vehicle licence and vehicle plate in order to avoid detection.  The first and second offences were also distinct offences committed in different times and places.  Therefore, I will adopt 2 years for Charges 1 and 2 respectively, but 1 year to run consecutively.

25.  As I have considered the forgery charges were aggravating factors, I will adopt a slightly lower starting point for Charges 5, 6 and 7 and use 6 months as a starting point.  All of the charges are to run concurrently but consecutive to Charges 1 and 2. 

26.  In all the theft-related cases, the total starting point adopted will be 3 years.

27.  In respect of the dangerous drug offences, for Charges 8 to 15, they all related to methamphetamine and they came in from the same source.  Therefore, I would consider them as a whole lot and use the total 1.81 grammes to consider a starting point. 

28.  The offence of trafficking in methamphetamine, also known as ‘Ice’, has been considered by the Court of Appeal and there is very clear sentencing guideline.  The following case falls within up to 10 grammes bracket, warranting a term of imprisonment ranging from 3 to 7 years, see Attorney General v Ching Kwok Hung [1991] 2 HKCLR 125, as amended in HKSAR v Capitania [2004] HKEC 965 and modified in HKSAR v Tam Yi Chun [2014] 4 HKC 256.  In the present case, I do not see any reason which might justify departure from the same.

29.  It has been contended by the defence that the defendant would use part of the drugs for self-consumption.  He relied on the fact that the defendant was a drug addict and that he had a previous conviction of possession of dangerous drug, also that he had been tested positive in his system the existence of ‘Ice’.

30.  However, in considering whether this court would accept such a contention, it is for the defence to bear the evidential burden; that is the defendant is to supply evidence for the judge to be satisfied on the balance of probabilities that a substantial portion of the dangerous drug was for self-consumption.  If the defendant succeeds, the court will be adopting a sentence order which is lower than that suggested in the sentencing guideline.

31.  In this instance, I do not find the defendant had succeeded.  In particular, I noted that the drugs were packed in small bags and a swelling agent had been purchased by the defendant in order to increase his profit.  The quantity of apparatus did not seem to be used by a single person.  He also admitted that he accepted payment for the ‘Ice’ in kind, such as an Octopus card or even fireworks.

32.  The bare contention by the defendant has not been supplied by any evidence.  So in respect of the two charges, namely Charges 8 and 15, a total of 14 months’ imprisonment is adopted as a starting point.  They are to run concurrently.

33.  In respect of the apparatus charges, Charges 9 and 13, there is no sentencing guideline.  In view of my adoption of starting point for the trafficking charge, I will use 3 months as a starting point.  They are all to run concurrently and concurrent with 8 and 15.  Therefore, in all the four charges related to dangerous drugs, I will adopt a total of 42 months as a starting point. 

34.  In respect of the other charges, there is no clear sentencing guideline either.  For Charge 10, the possession of an ID card belonging to another, the defendant contended it was used as a security for a loan.  There is no evidence to suggest otherwise although it does not derogate from the fact that it was illegal to do so.

35.  In respect of Charge 11, the theft of the Octopus card, I accept the defence counsel’s contention that it probably is of small value.

36.  In respect of Charge 12, the prohibited article which is 4.79 kilogrammes of fireworks, there is no evidence that he was going to use it, although the explanation he gave was rather strange.  In the absence of evidence to the contrary reluctantly, I have to accept his explanation.  For Charges 10 to 12, I will adopt 2 months’ imprisonment, all to run concurrently. 

Charge 14: Possession of a Counterfeit Note

37.  This is usually considered a very serious offence as the use of counterfeit banknotes affects the very foundation of our financial system. However, I note that for these counterfeit banknotes, some of which came with a stamp which showing that they are not for real, are of poor quality. Therefore, I would adopt a term of 6 months as a starting point. 

Mitigations

38.  I then turn to consider the mitigation put forward by the defendant.  He is 43 years old, and he has not been new to the law he had a total of three possession of dangerous drug, one count of theft, three cases of trafficking in dangerous drug and a case of forgery. 

39.  According to counsel for the defence, the defendant was a vice-chairman of a NGO and he had been paid rather handsomely for his trouble, namely a monthly payment of $26,000.  The chairman of the Hong Kong with Heart, the NGO which he said that he was a founding member wrote to this court stating that the defendant had been a vice-chairman of the organisation since its establishment in 2014.  The defendant was stated to have actively participated in all affairs of the organisation.  He was said to have frequently encouraged members to take part in events organised by the organisation such as visiting elderly homes and donating to homeless people.  His contribution is worthy of praise.  However, I noted that in 2014, the defendant had been in prison for a conviction of trafficking in dangerous drug instead of doing the good works he contended to be doing.

40.  When questioned, counsel for defence stated that he was basically helping from a distance in absentia.  I found such a claim rather dubious. While I appreciate that defence counsel is bound by instructions yet it is also the defence counsel’s duty to assist this court.  It is not for him to repeat blindly and blithely what his client told him.  It is his duty to scrutinise it and also test it with his own client.  If not, he risks his overall credibility as a counsel, which in turn result in the disservice of any client he might have.

41.  I do not accept the defendant’s contention that he was giving away his time by running a voluntary organisation devoted to the welfare for the elderly.

42.  In addition, counsel also mentioned his commitment to his family, his duty to help out.  I note that the defendant had been in and out from prison on a regular basis.  The question that came to anyone who came across such a contention is if he is so mindful of his obligations, why would he be committing crimes on such a regular basis?

43.  Having considered the whole of the defendant’s background, the mitigations put forward by his counsel and also the facts of the present case, I do not consider anything from his background on mitigation contain any element which might justify my departure from the usual sentence.  I do not see any reason to exercise additional clemency in his favour. 

44.  However, bearing in mind the Totality Principal, some of these sentence terms would have to run concurrently with the others.  For Charges 1 to 2, the defendant is to serve a term of 24 months, 3 months to run consecutively.  For Charges 5 to 7, they are all sentenced to 3 months, all to run concurrently.  In respect of the theft-of-vehicle-related charges, the defendant is to serve a total of 30 months.

45.  In respect of the drug-related offences for Charge 8 and Charge 15, each is to serve 42 months, all to run concurrently.  For Charge 9 and 13, each is for the defendant to serve 3 months.  All of the drug-related offences are to run concurrently, therefore in all 42 months.

46.  For the driving-related offences, in respect of Charge 3, as the maximum sentence is 3 months only, the defendant is to serve 1 month.  For Charge 4, driving without a third-party insurance, the maximum sentence is 12 months. I will adopt 3 months as starting point.  Charges 3 and 4 are to run concurrently but to run consecutive with the others.  In respect of drug offences, as stated before, in all, the defendant has to serve a total of 42 months for the miscellaneous offences.

47.  For the charge of possession of ID card relating to another, I will adopt 2 months’ imprisonment as I do for the case for theft and Charge 11, Charge 12, possession of fireworks.  So in respect of Charge 10 to 12, each is 2 months’ imprisonment.  For the Charge 14, I will adopt 4 months’ imprisonment. Charges 10, 11, 12, 14, are to run concurrently.

48.  Having considered the totality principle, I order 20 months of the 30 months related to the theft of vehicle charges to run consecutive to the drug-related offences.  They are to run consecutive to the driving-related offences and the miscellaneous offences. 

49.  In respect of the drug offences, a total of 42 months.  In respect of the theft of vehicles cases, 30 months is now reduced to 20 as they are to run consecutive with the drug-related offences.  3 months would be the driving-related offences, 4 months would be for the other four counts.  The overall starting point is 69 months. 

50.  The only valid mitigating factor in this case is that the defendant pleaded guilty and in accordance with the direction of the Court of Appeal, I would reduce the 69 months to 46 months, to take effect immediately.

51.  He is disqualified from driving and/or applying for a driving licence for 3 years.