HKSAR v. CHAN KING HEI AND ANOTHER

DCCC 329/2019

[2019] HKDC 1506

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 329 OF 2019

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REASONS FOR SENTENCE

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1.  On 29 Sep 2018, D1 and D2 broke into a warehouse in Wong Chuk Hang and stole 10 bottles of red wines (including 2 bottles of wine worth around $2,000), a safe containing 2 gold bars (worth around $900,000), 3 to 4 pieces of diamonds (worth around $100,000) and some documents (Charge 1).

2.  D1 was arrested on 26 Oct 2018 and D2 was arrested on 5 Nov 2018.  During home search, the followings were found from D1’s home:-

(i) 0.29 gramme of a mixture containing 0.18 gramme of heroin hydrochloride, 0.01 gramme of a solid containing cocaine, 0.03 gramme of a powder containing methamphetamine and 13 grammes of a crystalline solid containing 12.8 grammes of methamphetamine hydrochloride (“the Dangerous Drugs”) (Charge 2); and

(ii) 2 inhaling devices (Charge 3).

3.  D1 admitted possession of the Dangerous Drugs for own consumption and the 2 inhaling devices for taking cocaine and “ice”.

4.  D1 pleads guilty to Charge 1 to 3 and D2 pleads guilty to Charge 1.

Mitigation for D1

5.  D1 is now 53 years old, single and received education up to Form 3.  His parents are now over 70 years old and living on CSSA.  D1 was a transportation working earning about $7,000 per month at the time of the offence.  He committed the present offence because he was a drug dependent and was in need of money to support his illicit habit.

6.  He is now remorse for what he did and wrote a letter of mitigation.

Mitigation for D2

7.  D2 was born in Pakistan and is now 35 years old.  He is single.

8.  In 2002, he came to Hong Kong and was granted refugee status.  In about 2011, his family members resettled to the United States.  However, D2 was unable to be resettled due to having committed criminal offences and was serving imprisonment from time to time.  Today, he is still a Form 8 holder and hopes to reunite with his family member in United States in future.

9.  Mr Beel submitted that D2 knew D1 in prison.  Soon after his release from jail, D2 received assistance from D1.  After feeling a sense of obligation to D1, D2 committed the present offence.

Sentence

10.  The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment. The starting point can be adjusted upwards if there are aggravating circumstance (see HKSAR v Cheng Wai Kai, unreported, CACC 338/2007).

11.  In the present case, D1 and D2 visited the warehouse beforehand, committed the burglary together, tools were used and a safe was forced open.  Value of the gold bars and diamonds worth around $1 million but all of them are now untraceable.  At the end, only 2 bottles of wine were recovered.  D1 admitted under caution that the gold accessories were sold for $140,000 and the proceeds were equally shared with D2.  D2 admitted under caution that he was only paid $20,000.

12.  In any event, they committed the offence jointly and a same starting point should be applied.

13.  For D1, he had 15 previous conviction records in which 7 of them are “dishonesty” related.  He committed the present offence within 2 to 3 months after he released from jail.

14.  Taking into account of the aggravating circumstance of the method of the commission of the offence, I enhance the sentence by 4 months.  I further enhance the sentence by 2 months for the previous conviction records of D1.

15.  In other words, I accept Mr Lau’s submission that an enhancement of 6 months is appropriate.  So, for D1, starting point for charge 1 after enhancement is 36 month’s imprisonment.  Given the usual one-third discount for a guilty plea, D1 is sentenced to 24 months’ imprisonment for charge 1.

16.  For charge 2, as conceded by Mr Lau, the quantity of the Ice involved is not small.  I accept that D1 was a deep rooted drug abuser.  He has 5 previous records in possession of dangerous drugs or part 1 poison.  I have to consider also the latent risks involved in this case, in particular the police found 87 empty resealable bags in his home.  I take a 12 months’ imprisonment as starting point and enhance it by 3 months to reflect the latent risks.  So, the sentence become 15 months’ imprisonment after enhancement.  Given the usual one-third discount for guilty plea, D1 is sentenced to 10 months’ imprisonment for charge 2.

17.  For charge 3, I adopt a starting point of 3 months’ imprisonment and reduce it to 2 months’ imprisonment to reflect the guilty plea.

18.  Taking into account of the totality principle, 4 months of the imprisonment for charge 2 is to run concurrently with charge 1.  The 2 months’ imprisonment for charge 3 is to run concurrently with charge 1 and charge 3.  Total sentence is therefore 30 months’ imprisonment.

19.  For D2, the starting point for charge 1 is 30 months’ imprisonment.  I enhance the sentence by 4 months for the method of the commission of the offence.

20.  He is a Form 8 holder at the time of commission of this case.  Mr Beel submitted that D2’s situation is different from most of the Form 8 holders who are awaiting for determination.  For D2, he was already granted a refugee status and was and is still awaiting for resettlement.

21.  Form 8 holder committed burglary offence warrant an enhancement of sentence (see HKSAR v Raman Kumar, unreported, CACC 324/2017).  D2 could and should have already resettled to another country but he missed each and every time when he was given an “interview” opportunity because he was in jail. I accept that it was a very pity situation.  Still, it was self-induced.  Taking the circumstance into account, I enhance the sentence by another 2 months.

22.  He has 7 previous conviction records and 2 of them, respectively in 2009 and 2017, were burglary.  He was released from jail on 8 September 2018 and he committed the present case on 29 September 2018.  His persistence in committing criminal offences is demonstrated by the fact that within a month of being released from a jail for a burglary committed in 2016, he committed the present offence.  I enhance his sentence for another 3 months’ imprisonment.

23.  In other words, I enhance a total of 9 months’ imprisonment.

24.  The sentence, after enhancement, is 39 months’ imprisonment.  Given the usual one-third discount, D2 is sentenced to 26 months’ imprisonment for charge 1.