HKSAR v. CHUNG WING KIN, KEN

DCCC 1040/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1040 OF 2008

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Reasons for Sentence

1.   The Defendant is a 25-year old man. He married about 2 years ago and his wife recently gave birth to their first child, a son.

2.   The Defendant pleaded guilty to 5 Charges.

The 1^st 2 Charges related to burglary of the office of a Lai Kwong Industrial Company (“the Company”) on 2 days in May 2008. On the 1^st occasion, he stole 10 pre-signed blank cheques of the Company. On the 2^nd occasion, he stole $5,000 and 1 notebook computer.

The 3^rd and 4^th Charges related to theft on 2 consecutive days in August last. He stole from the same roadside construction site 11 mills barriers on the 1^st occasion and 6 drainage lids together with 2 drainage lid frames on the latter occasion. The victim was the same Penta-Ocean-Peako Joint Venture. 

The 5^th Charge was for possession of 5.08 grammes of methamphetamine hydrochloride (commonly known as “Ice”).

3.  The Defendant pleaded guilty to all 5 Charges and admitted Prosecution’s case. The Defendant was convicted accordingly. The facts of the case can be simply put thus:

The Defendant kept the dangerous drugs in the communal hall of the housing complex where he lived. He would consume the drugs in the hall. A worker found the drugs and a report was made to the police. As the police were investigating the case, the Defendant appeared at the hall. In response to police inquiry, the Defendant confessed to the offence alleged in the 5^th Charge.

A house search was conducted at the Defendant’s premises and the police found the items particularised in the 1^st and 2^nd Charges (save for the $5,000). The Defendant admitted burglarising the Company. The items particularised in the 4^th Charge (drainage lids and lid frames) were found on board the Defendant’s motor vehicle. The Defendant confessed to the offences alleged in the 3^rd and 4^th Charges. The Defendant admitted that he had sold the mills barriers (3^rd Charge) at Yuen Long for $200.

4.  It is clear that the Defendant cannot avoid incarceration in this case.

5.  The Defendant is not a man of clear record. I find aggravating factors for the 1^st to 4^th offences in that a) the Defendant was convicted of offences relating to counterfeit coins/ notes in 2005 as well as theft in 2006 and b) Defence Counsel conceded that the Defendant committed these 4 offences in order to fund his drug-taking habit. I will increase the starting point for the 1^st and 2^nd offences by 6 months and that for the 3^rd and 4^th offences by 2 months. I draw this difference because the enhancement must be reasonable vis-a-vis the original starting point (see paragraphs 11 and 12 below). The Defendant has 1 previous conviction in 2003 for possession of dangerous drugs. He was fined $2,000. The penalty indicated that the offence could not have been serious. I also considered the lapse in time since. I am willing to disregard this conviction as an aggravating factor for the 5^th offence.  

6.  The Defendant pleaded guilty. He will be accorded the usual 1/3 discount. This is a very generous discount and already takes into consideration the Defendant’s remorse (see also HKSAR v Jain Nikhil & anr. (2007) 2 HKC 205, 214). I do not think that family circumstances warrant any further reduction in sentence. It is inevitable that the Defendant’s family will suffer in the event of a prison sentence. If the Defendant really cared for his family, he should not have committed such offences in the first place.

7.  The Defendant did make confessions to the police. Such confessions greatly strengthened Prosecution’s case particularly in relation to the 1^st, 2^nd and 5^th Charges. I will therefore give the Defendant a further reduction of 2 months for each offence.

8.  Defence Counsel highlighted the fact that the Defendant did not steal more from the Company and that the Defendant did not try to make use of the signed blank cheques. This merely means the absence of certain aggravating factors.

9.  The Defendant has now made full compensation to the victims of the 1^st to 4^th Charges. I will deduct 2 months from the sentence of each of those 4 Charges.

10.  It is obvious that the more serious crime is that of burglary. Defence Counsel mentioned sentencing guidelines (for burglary of non-domestic premises) of 2.5 years/ 30 months imprisonment as the starting point. It is not too correct to speak in terms of sentencing guidelines. The reality is that for some 1.5 decades the Courts have been adopting 2.5 years imprisonment as the starting point in sentence for burglary of non-domestic premises (see, for example,  The Queen v Wong Man CACC 372/1992;   HKSAR v Hui Chi Tong CACC 414/2007 paragraph 20 and HKSAR v Ng Ngai Shan CACC 197/2008, paragraph 6). This practice is now so engrained that it should be adhered to unless there are good reasons to do otherwise.

11.  I adopt a starting point of 30 months imprisonment for each of the 1^st and 2^nd Charges. I increase the starting point to 36 months in view of aggravating factors mentioned in paragraph 5 above. After according the Defendant the 1/3 discount, the sentence is reduced to 24 months each. From this I deduct a further 4 months (see paragraphs 7 and 9 above). The sentence for the 1^st and 2^nd Charges should be 20 months each.

12.  I adopt a starting point of 8 months for each of the 3^rd and 4^th Charges. I increase the starting point to 10 months in view of aggravating factors mentioned in paragraph 5 above. After according the Defendant the 1/3 discount, the sentence is reduced to 6.5 months (rounded down from the figure of 6.6). From this I deduct a further 4 months (see paragraphs 7 and 9 above). The sentence for the 3^rd and 4^th Charges should be 2.5 months each.

13.  I turn now to consider the sentence for the 5^th Charge. I am aware of Section 54A of the Dangerous Drugs Ordinance, Cap. 134. It is clear that sentence for the 1^st 4 Charges will add up to more than 9 months imprisonment. There is no need for me to call for Drug Addiction Treatment Centre report before sentencing the Defendant to prison for the 5^th Charge.

14.  The Defendant was in possession of a not insignificant quantity of “hard’ drugs. I take into account the latent risk of his sharing it with others. I adopt a starting point of imprisonment for 12 months. After according the Defendant the 1/3 discount, the sentence is reduced to 8 months. From this I deduct a further 2 months (see paragraph 7 above). The sentence for the 5^th Charge is imprisonment for 6 months. 

15.  The sentences for the 5 Charges should run consecutively. However, I must consider the totality principle. I think it appropriate to order:

a)  6 months of the 2^nd Charge is to run consecutively to the sentence for the 1^st Charge and the balance is to run concurrently. This yields a total of 26 months for the burglary offences in the 1^st and 2^nd Charges;

b)  1.5 months of the 4^th Charge is to run consecutively to the sentence for the 3rd Charge and the balance is to run concurrently. This yields a total of 4 months for the theft offences in the 3^rd and 4^th Charges;

c)   the 26 months for the 1^st and 2^nd Charges and the 4 months for the 3^rd and 4^th Charges are to run consecutively, yielding a term of imprisonment of 30 months; and

d)  the 6 months imprisonment for the 5^th Charge is to run consecutively to the term of 30 months just mentioned.

16.  For the 5 offences in this case, the Defendant is sent to prison for a total period of 36 months.