1. The Defendant appears before me and pleads guilty to a total of 5 charges including two charges of “theft” (Charge 1 & 3), one charge of “burglary” (Charge 2), one charge of “resisting a police officer in the execution of his duty” (Charge 4) and one charge of “trafficking in a dangerous drug” (Charge 5).
The facts
2. Charge 1 took place at around 2311 hours on 16 December 2021 at the rear lane of Southern Building, 257-273 King’s Road, North Point and Charge 2 took place at around 0230 hours on 17 December, 2021 in a residential unit (Room A, 9/F) at Millan House, 2-4 North Point Road, North point, which was only about 240 metres away from Southern Building.
3. In Charge 1, the Defendant entered Southern Building and stole a rucksack which was earlier left unattended by a male cleaner at the rear lane. The personal properties inside the rucksack include a charger, a jacket, a set of keys and a pair of Bluetooth earphones. When the cleaner returned to the rear lane at around 2330 hours, he found the rucksack missing and the total value of the missing properties was HK$ 2,088. The case was reported to the police. The images and appearance of the Defendant entering the building and leaving the same with a rucksack on his back was captured by the CCTV.
4. In Charge 2, the Defendant entered a residential premises by climbing the scaffoldings surrounding the building and stole therein at the early hours. When the male occupant of the premises woke up in the morning of 17 December, 2021, he saw the window grilles inside his room were opened and his wallet and mobile phone were found missing in the living room. The values of the stolen properties in the wallet (including his Hong Kong Identity Card and a Senior Citizen Card) and the mobile phone was about HK$2,260. The CCTV captured the Defendant, who was in the similar outfit as in Charge 1, passing the backstairs behind the premises and going downstairs while holding an object which appeared to be a wallet at around 0237 hours.
5. The Defendant was intercepted and arrested on the next day on 18 December, 2021 when the police officer investigating the case saw him on the roof of Southern Building holding a black rucksack, wearing a similar outfit and exposing a similar facial appearance as the suspected male captured in the CCTV footages. The Defendant was arrested for “theft” relating to Charge 1. Upon search of the Defendant, the police also found the stolen HKID card in relation to Charge 2 and he was then arrested for “burglary” (Charge 2).
6. Further search of the black rucksack held by the Defendant revealed a red bag containing a Bank of China passbook belonging to one Chan Hiu Fung. As the bank passbook obviously did not belong to the Defendant, he was arrested for “theft” of the passbook (Charge 3).
7. Upon being arrested for Charge 3, the Defendant became emotional, resisted arrest and attempted to escape. The Defendant was eventually subduced and handcuffed by the arresting officer. The Defendant was further arrested for “resisting a police officer” (Charge 4).
8. In relation to Charge 5, when the arresting officer handcuffed the Defendant, he was found holding a cigarette box containing 17 cigarettes and a plastic bag containing suspected dangerous drugs and he was therefore arrested for “possession of a dangerous drug”. Upon analysis and examination by the government chemist, it was subsequently confirmed that the plastic bag contained a total of 1.67 grammes of a crystalline solid containing 1.66 grammes of methamphetamine hydrochloride.
Background and criminal records
9. The Defendant is now 26 years old. He was born in Hong Kong and received education up to Form 3 level.
10. The Defendant has appeared in court on 5 different occasions between 2014 and 2020. He was first sentenced to Detention Centre in relation to 3 charges of “theft” in 2014 at the age of 17. In 2015, he was sentenced to Training Centre in relation to 7 charges of “burglary” and another charge “assault occasioning actual bodily harm”. In 2018 he was given a 4 month suspended sentence for “possession of dangerous drug”. He was last fined HK$1,000 in 2020 for “illegal gambling”.
Mitigations
11. In mitigation, Mr Sujanani, counsel for the Defendant, emphasised that the Defendant has indicated his guilty plea at the earliest opportunity and maintained his guilty pleas to all the 5 charges. The court was urged to give the defendant the full credit for his plea and mitigation.
12. Prior to his arrest, the Defendant was in regular employment as a bar tender in a restaurant earning HK$16,000. The Defendant was said to be remorseful since his arrest and has also written to express his heart-felt apology to the court.
13. The Defendant’s father is a Filipino and works in Hong Kong. His mother who is also a Filipino who later married to an Englishman in Hong Kong and became the Defendant’s stepfather.
14. Due to the Covid-19 pandemics, the restaurant was closed from time to time from 2020 to 2021 and during the difficult times, the defendant received no income and had to rely on his own savings to sustain his livelihood. The Defendant mostly resided with his mother and stepfather and at times would reside with his own father. I was told that the Defendant’s mother is a drug addict and at the time of the offence, the Defendant’s mother was under treatment for drug withdrawal at St Stephen’s Society and was residing at Tuen Mun Multi-purpose Rehabilitation Home. The Defendant was very lonely and depressed. His situation worsened, as he had no income and he committed the offences because he desperately needed money for food.
Sentencing considerations
15. Before I pass the sentence on each charge and consider the totality of the sentences, I have carefully considered the full facts of the case, the background of the Defendant, the mitigations and the authorities in relation to each of the offence involved in this case.
16. Charge 1 involved a theft of an unattended bag and the criminality was akin to the offence of “pickpocketing” with a starting point of 12-15 months’ imprisonment under the guideline as laid down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1. As it was only a simple theft committed by the Defendant alone without any skill or planning, I would adopt 12 months as the starting point and increase it by 3 months on account of his previous similar theft convictions. The starting point for Charge 1 is therefore 15 months’ imprisonment.
17. The Court of Appeal has held that 3 years’ imprisonment was the proper starting point for a first offender of full age in a domestic burglary in R v Chan Yui Man CACC 36/1988. I would therefore take an initial starting point of 3 years for Charge 2. The sentence however has to be increased again for 3 months due to his 7 similar previous convictions in 2015. The sentence before discount is therefore 39 months’ imprisonment.
18. As for Charge 3, I agree that the theft of the bank passbook is only a theft by finding. There is no sentencing guideline for this type of offence. I would adopt a starting point of 2 months and still enhance it by 1 month to reflect the Defendant’s similar records. The starting point for Charge 3 before the discount is therefore 3 months’ imprisonment.
19. In Charge 4, I agree with the defence submissions that there is no tariff authority or major guidelines for “resisting a police officer”. Obviously, each case depends on its own facts.
20. According to the summary of facts, the violence displayed by the Defendant during the struggle with the arresting officer was by no means high and the officer did not sustain any injury. Based on these reasons, I would only adopt a starting point of 3 weeks’ imprisonment in Charge 4.
21. In Charge 5, the subject-matter of the dangerous drug is what is more commonly known as ICE. According to the sentencing guideline laid down by the Court of Appeal in HKSAR v Tam Yi Chun CACC 524/2011, for trafficking in ICE up to 10 grammes, the starting point is between 3 to 7 years’ imprisonment. The present case involves 1.66 grammes in quantity and by arithmetical calculation, the starting point should be 3.7 years or 3 years and 8 months. However, Mr Sujanani contended that given the small quantity involved in the present case, the court can adopt a lower starting point of less than 3 years. He relied on the judgment in HKSAR v Yeung Kam Chun CACC 427/2004 where the amount of ICE is 1.59 grammes, The Court of Appeal said:
“For the trafficking of smaller amounts of ice, the sentencing judge was not obliged to start with three years and it would be within the discretion of the sentencing judge to adopt a lower starting point in consideration of the actual amount of ice involved.”
22. In light of the above judgment and the amount of ICE that the Defendant trafficked in was only 1.66 grammes and this is only his first conviction for “trafficking in dangerous drugs”, I will exercise my discretion to adopt a lower starting point of 33 months’ imprisonment.
23. After the full one-third reduction which the Defendant is entitled for his timely plea, the sentence on each charge is as follows:-
(1) Charge 1 – 10 months;
(2) Charge 2 – 26 months;
(3) Charge 3 – 2 months;
(4) Charge 4 – 2 weeks;
(5) Charge 5 – 22 months
24. The 5 charges are separate and distinct offences involving different culpabilities. I do not accept the contention by the defence that they arose from a single transaction and impose a concurrent sentence for all these charges. However, because of the totality principle, I consider a global sentence of 40 months is appropriate in all circumstances and I shall adjust the sentences as follows:
(1) Charge 1 – 4 months of the sentence to run consecutive to all other charges;
(2) Charge 2 – the whole of 26 months to run consecutive to all other charges;
(3) Charge 3 – 1 month of the sentence to run consecutive to all other charges;
(4) Charge 4 – the whole of 2 weeks to run concurrent to all other charges and
(5) Charge 5 – 9 months of the sentence to run consecutive to all other charges.
25. The total sentence for all 5 charges is 40 months’ or 3 years and 4 months’ imprisonment.