HKSAR v. SAMEERA NUWAN CHINTHANA FERNANDO NAIDAPPULAGE AND ANOTHER

DCCC 723/2020

[2021] HKDC 933

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 723 OF 2020

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REASONS FOR SENTENCE

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1.  D1 and D2 were jointly charged with one count of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Chapter 210 (Charge 1). It took place on 21 April 2020 involving a bicycle shop in New Territories. The defendants stole three bicycles, two chainrings, three batteries, two tyres and six locks.

2.  D1 was in addition charged with one count of possession of dangerous drugs, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Chapter 134, which involved 1.39 gramme of cannabis in herbal form and traces of methamphetamine (Charge 2), and one count of possession of Part 1 poison, contrary to sections 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Chapter 138, which involved two tablets containing sildenafil (Charge 3).

3.  Both defendants pleaded guilty to the relevant charges and were convicted of all charges they faced accordingly.

THE FACTS

4.  PW1 had a bicycle shop near lamppost FA7527, Ping Pak Lane, Ping Shan.  The shop was about 700 square feet in size and its structure was made up of metal sheet walls and a metal sheet roof.  There was a gap between the top of the walls and the roof.  The only entrance to the shop was a metal gate which was secured by a lock.

5.  At 10 pm on 20 April 2020, PW1 left the shop after having locked its gate.  At 3:45 am on the next day, PW1 watched his mobile phone at home which was connected to the CCTVs of the shop.  He saw a man wearing trousers ransacking the shop while another man wearing shorts sat outside the shop’s gate.  The case was reported to the police.

6.  At around 4:40 am on the same day, police officers arrived somewhere about 50 metres away from the shop and started searching.  D1 was walking towards an officer but when at sight of the officer he looked frightened and wanted to turn around to leave.  An officer intercepted D1.  D2 was about 15 metres behind D1, riding on a bicycle towards the officer as well but D2 suddenly braked and abandoned the bicycle and ran away.  Around 5:04 am, officers found D2 in the nearby bushes about 40 metres away from the shop and intercepted him.  

7.  D1 was carrying a backpack and a slant bag. Inside the backpack were six new bicycle locks (E1 to 6); two new bicycle chainrings (E7 to 8); two bicycle tyres (E9 to 10); two bicycle lithium batteries (E11 to 12); a large pair of pliers, a spanner, a pair of gloves, a large metal saw and a small metal saw.  Inside the slant bag were two purses, a Swiss Army knife and a hex key.  One purse contained suspected cannabis (E13)  while the other purse contained two tablets of medicine (E14 to 15)  and a metal box containing a 5 cm straw and five transparent resealable bags containing traces of substances (E16 to 20).  Two pairs of small pliers were found in the right rear pocket of D1’s shorts. 

8.  Government chemist subsequently confirmed that E13 was 1.39 grammes of herbal cannabis; E14 to 15 contained sildenafil which is a Part 1 poison; and E16 to 20 contained traces of methamphetamine. 

9.  Next to where D2 was located, there was a black cap, a pair of black gloves and a mobile phone.  Upon search of D2, among other things, a torch was found. 

10.  PW1 confirmed that E1 to 12, three bicycles and another bicycle lithium battery were stolen from the shop.  The total value of the stolen property was HK$13,450.  These three bicycles were recovered in the vicinity of the shop.  The above battery was recovered from one of the stolen bicycles.  The shop’s gate lock was prised and its repairing cost was HK$1,500.

11.  CCTVs show that two men walked towards the shop at 2:34 am on 21 April 2020.  Both were wearing gloves and caps.  The first man stayed about 20 to 30 metres away from the shop while the second man appeared to be tampering with the lock of the shop’s gate.  At 2:40 am on the same day, the second man climbed into the shop through the gap between the walls and the roof.  Seven minutes later, the first man walked up to the shop and seemed to have passed a bag to the second man through the same gap.  Then the first man returned to his original position.  Meanwhile, the second man turned on the torch and searched the shop.  Then the second man took two hours to prise open the shop’s gate from the inside.  The two men then removed some bicycles and other items from the shop.

12.  The clothing and belongings of the first man as shown in the CCTVs were consistent with those of D1 whereas the clothing and belongings of the second man in the CCTVs were consistent with those of D2.

13.  In the subsequent video-recorded interviews, D1 said under caution:-

(a)  He bought the herbal cannabis two days ago for $200 and he would consume it in cigarettes.

(b)  On the same occasion, the man gave him the two tablets for another $100, claiming that they were good for sex.

(c)  He was used to consuming cannabis when he was in Sri Lanka. He would consume the seized herbal cannabis in one day with three cigarettes.

(d)  He picked up the metal box containing the five bags containing E4 to 8 and a straw in Tong Fong Tsuen and had been keeping the box in a bag.

(e)  About half an hour before his arrest, Rajan called him and asked him to carry some goods onto a vehicle.

(f)  Half an hour before his arrest, he met up with Rajan in Tong Fong who gave him a very heavy bag. He was told to put it at the roadside about a quarter of a kilometre away.

(g)  He carried the bag and walked up to the location where he was arrested.

14.  In the subsequent video-recorded interview, D2 said under caution:-

(a)  He walked to the shop from Hung Shui Kiu and brought a backpack.

(b)  He entered the shop through a small window at the rear. Inside the shop, he stole items from the shop and placed them in the backpack.

(c)  He passed the backpack and a bicycle to his friend.

(d)  He was lacking in money and therefore would sell what he had stolen.

15.  D1 and D2 were Form 8 recognisance holders.

DEFENDANTS’ BACKGROUND

16.  D1 is a Form 8 holder.  He is aged 36.  He was born in 1984 in Sri Lanka.  He had received secondary education in Sri Lanka.  He entered Hong Kong in 2004 and he was unemployed at the time of arrest.  He claimed to have a medical history of asthma and he was addicted to cannabis and would consume it three times a day.  D1 is single and was residing in Yuen Long area prior to the arrest.  He has his parents, a brother and a sister all living in Sri Lanka. 

17.  D1 has a total of four previous criminal convictions, all similar, namely, one count of possession of dangerous drug, one count of attempted theft, and two counts of going equipped to steal.

18.  D2 is a Form 8 holder.  He is aged 38.  He was born in 1982 in Sri Lanka.  He received secondary education in Sri Lanka and he came to Hong Kong in 2004.  He was unemployed at the time of arrest.  He is single and has no fixed abode in Hong Kong.  He has his parents, a brother and two sisters all living in Sri Lanka.

19.  D2 has a total of eight previous criminal convictions, including four similar, namely, one count of theft, one count of attempted theft, one count of going equipped to steal, and one count of burglary. 

MITIGATION

D1

20.  Mr Ross on behalf of D1 submitted a written mitigation.  To confirm the background information supplied by the prosecution, counsel submitted that D1 came to Hong Kong in 2004 from Sri Lanka and is a Form 8 holder.  It is accepted that the burglary charge which involved non-domestic premises ordinarily attracts a sentence of 2½ years’ imprisonment after trial.  It is also accepted that D1 being a Form 8 holder, that amounts to an aggravating feature. 

21.  D1 does not have a clear record but it is submitted that there are no previous burglary offences.  It is accepted that D1 committed the offence in the company of D2 to steal from a bicycle shop. However, all the stolen properties have been recovered without damage.

22.  It is submitted that the motive behind the offence was economic.  Mr Ross submitted a Court of Appeal decision, HKSAR v Junaid Ahmed, CACC 79/2017, where the Court of Appeal considered it in order for the trial judge to impose the conventional sentence of 30 months and enhance it by 3 months because of the immigration status as a mandated refugee.  It is submitted that the court here may similarly wish to consider 33 months as a starting point.

23.  For the additional two charges of possession of dangerous drugs and a charge of possession of Part 1 poison, Mr Ross submitted three District Court cases and asked me to consider.  They are HKSAR v Le Van Quy, DCCC 78/2014, HKSAR v Hui Duin Ngan, DCCC 15/2017, and HKSAR v Chong Wai Keung, DCCC 287/2018.  In all these cases where trafficking charges were involved, there were substantive amount of heroin or cocaine or ‘Ice’ involved and a small amount of cannabis.  Those sentencing judges did not take into account the small amount of the cannabis to add to the overall criminality of those defendants.

24.  Mr Ross also invited me to consider a sentence for the Part 1 poison charge that does not involve additional imprisonment beyond the sentence for the burglary charge.

D2

25.  Ms Mohamed for D2 also submitted a written mitigation.  Apart from confirming the background information supplied by the prosecution, it is submitted that D2 came to Hong Kong in 2004, applied for asylum and is a Form 8 holder.  It is submitted that he needed money to help his brother who had an accident in Sri Lanka so that he committed the current offence.

26.  It is accepted that the proper starting point for non-domestic premises in the burglary charge is one of 2 years and 6 months.  It is submitted that the strongest mitigating factor in this case is the guilty plea at the earliest opportunity by D2 and he understands that it is an aggravating factor for being a Form 8 holder when he committed the offence.  The court is invited to grant a sentence as lenient as possible.

SENTENCE

27.  There are clear sentencing guidelines laid down by the Court of Appeal for burglary as rightly accepted by both defence counsel.  The usual starting point for burglary of non-domestic premises is 2½ years.  That is 30 months’ imprisonment.  See AG v Lui Kam Chi [1993] 1 HKC 215.

28.  The starting point can be adjusted upwards if there are aggravating circumstances.  For instance, what are applicable in this case are these:-

(1)  the offence was committed by two or more people;

(2)  the defendant has convictions, both defendants had convictions of theft-related offences or offences involving dishonesty; and

(3)  the defendants are professional burglars and not just opportunists.

See HKSAR v Cheng Wai Kai, CACC 338/2007, paragraph 15 of the judgment.

29.  In the circumstances, I am of the view that the proper starting point for the two defendants in this case should be, first of all, increased from the usual starting point of 30 months to 33 months. 

30.  In addition, there is another aggravating factor applicable to both defendants, namely, both are Form 8 holders at the time of the commission of the burglary offence. 

31.  In as early as in 2013 the Court of Appeal observed in HKSAR v Sandagdorj Altankhuyag and Another [2014] 1 HKC 206 that the commission of an offence by a foreign national who was the holder of a Form 8 recognisance could constitute an aggravating factor and could have his sentence enhanced, it is because that the foreign defendant when committing a crime had abused the hospitality and liberty offered by the Hong Kong Government, and his crime has affected Hong Kong’s reputation for order and security.

32.  Since that judgment, the Court of Appeal had on various occasions enhanced or endorsed the enhancement by sentencing judges of sentences of defendants who were Form 8 holders.  The enhancement was usually in the region of a few months up to a year.  Also and more specifically in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, the Court of Appeal at paragraphs 34 and 35 of the judgment observed that it was neither prudent nor possible to issue sentencing guidelines for such cases.  Such enhancement was best left to the discretion of the sentencing judge or magistrate.  But obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.

33.  In that case, the applicant was convicted of trafficking in a substantial amount of cocaine, and for that primary offence the sentencing judge adopted a starting point of 8 years and 2 months.  The enhancement to reflect the applicant’s Form 8 status of 1 year and 10 months was nevertheless found to be too severe by the Court of Appeal, and the enhancement was eventually reduced to one of 1 year imprisonment after appeal.

34.  I have also considered the case relied upon by Mr Ross for D1, Junaid Ahmed, where the Court of Appeal endorsed the enhancement of 3 months for that particular aggravating factor by the sentencing judge.  See paragraph 21 of the judgment.

35.  I accordingly also enhance the starting point for the burglary charge by another 3 months to reflect the defendants’ Form 8 holder status. 

36.  I see no difference in the criminality of the two defendants in this burglary charge.  I adopt the same starting point of 36 months for each of them.

37.  Apart from the defendants’ guilty pleas, I do not find any other circumstances, neither from the defendants’ personal background nor the offence itself, amount to any significant mitigation.  I shall nevertheless give each of them the full one-third discount for the timely guilty pleas.

38.  For Charge 1, I sentence D1 and D2 each to 24 months’ imprisonment.

39.  Now, I proceed to deal with Charge 2, possession of dangerous drug, which only involves D1.  The drug possessed by D1 at the material time were 1.39 gramme of herbal cannabis and five resealable bags containing traces of methamphetamine.

40.  It was established in the Court of Appeal decision in HKSAR v Mok Cho Tik [2001] 1 HKC 261 certain sentencing principles for cases of possession of dangerous drug.  See in particular paragraph 17 of the judgment.  The starting point for mere possession of a quantity of dangerous drug which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment.  It would not seek to exclude the court from imposing lesser sentence for a very small amount where circumstances so warrant.

41.  The quantity would be the main governing factor.  Then the sentencing court should consider the degree of enhancement for the risk factor which is not a matter of mathematics.  The factors to be considered include the employment, if any, of the defendant; the place where the drug was kept; the previous conviction of trafficking, if any; and of course the quantity of drugs.  The full circumstances of the risk must be assessed.

42.  In view of the quantity of the drugs involved in Charge 2 and D1’s relatively minor records, I adopt a basic starting point of 9 months’ imprisonment, which is already three months lower than the lowest in the range as suggested by the Court of Appeal in Mok Cho Tik to reflect the small amount of drugs involved in this case.

43.  I now proceed to consider the risk factor. Having considered all the circumstances including the defendant’s background, his Form 8 holder status, his lack of employment and income, as well as the two different kinds of drugs involved on the one hand and the very small quantity of drugs on the other hand, I am prepared to accept that the risk is not particularly high.  I shall enhance the basic starting point by 3 months which is only a quarter of the 12 months’ enhancement given in Mok Cho Tik.

44.  The starting point for Charge 2 is therefore 12 months’ imprisonment.  I do not seek to enhance that starting point for D1’s Form 8 holder status because of the relatively minor nature and circumstances of that offence.  Again, one-third discount is to be given for his guilty plea.  The final sentence for Charge 2 for D1 is 8 months’ imprisonment.

45.  Finally, I shall deal with Charge 3, possession of Part 1 poison involving two tablets of sildenafil which also only involved D1.  There are no specific sentencing guidelines but I had taken reference from the Court of Appeal in the case HKSAR v Yeung Kwan Hung, CACC 217/2010, where the Court of Appeal had considered a few similar cases involving a few or a few tens of tablets of zopiclone, another kind of Part 1 poison.  The Court of Appeal agreed with the starting point of 3 months’ imprisonment in that case.

46.  I accordingly adopt a starting point of 3 months’ imprisonment for Charge 3 and reduce it for one-third for the guilty plea to make it a 2 months’ imprisonment for D1.

47.  Now, I have to take into account and apply the totality principle.  I have considered the three District Court case authorities submitted by Mr Ross for D1 and his relevant submissions in court. I do not consider them to be applicable in this case not merely because they are not binding authorities on me, but mainly because of the fact that here in this case D1 was involved in three different charges: one of burglary, one of possession of dangerous drug, and one of possession of Part 1 poison.  They are separate and distinct offences.  In particular, Charge 1 on the one hand and Charges 2 and 3 on the other hand are of different nature.

48.  As a matter of sentencing principle, the charges should warrant consecutive sentences subject to the totality principle.  For Charge 1, as said, I sentence D1 to 24 months’ imprisonment.  For Charge 2, I sentence D1 to 8 months’ imprisonment, 3 months are to be served consecutively to the sentence of Charge 1.  For Charge 3, I sentence D1 to 2 months’ imprisonment to be served concurrently with those sentences for Charges 1 and 2.

49.  The total sentence for D1 is therefore 27 months’ imprisonment.

50.  For D2, as said, I sentence him to 24 months’ imprisonment for Charge 1.