HKSAR v. CHOI PING CHIU

DCCC 347/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 347 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210; one charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and lastly, one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  The facts are that on 24 January 2014 police entered and searched the defendant’s home in Aberdeen.  They seized 0.06 grammes of ketamine in a plastic bag; 0.02 grammes of ketamine in a paper bag; and one plastic bottle containing 29 millilitres of a liquid containing 0.09 grammes of a solid containing “Ice” on the floor of the living room. 

3.  The police then from the bedroom seized the following: an electronic scale, a green plastic bottle containing 0.11 grammes of a powder containing 0.08 grammes of ketamine, and an aluminium box containing 0.87 grammes of a crystalline solid containing 0.79 grammes of methamphetamine hydrochloride.  All these items were in a blue container.  In addition, the police seized 50 new resealable transparent plastic bags.

4.  These items seized make up Charges 5 and 6. 

5.  I correct myself, the items found on the living room floor were not grammes of ketamine, they were grammes of a powder containing ketamine.

6.  As I have said, these items make up Charges 5 and 6.

7.  The paraphernalia that was seized, meaning the scale and 50 new resealable transparent plastic bags, suggest to me that there is a likelihood that some of these dangerous drugs would find its way out of the house.   There was a latent risk this drug could possibly be shared amongst others.   I am mindful, however, that the quantities are small. 

8.  The police also after a further search of the premises found items relating to the four theft charges.  They found a Hong Kong Identity Card of a Mr Hsu Tung-shing.  This is the item related to Charge 1, and Mr Hsu confirmed that he had this stolen whilst drunk one night in March 2010. He lost his wallet during the course of the evening and his identity card was in his wallet. 

9.  Police also found a iPhone 4 that the defendant was actually using when arrested.  That in fact did not belong to him, but to a taxi driver.  This iPhone is the stolen item of Charge 2.

10.  The taxi driver, a Mr Ho, picked up the defendant on 30 December 2013 at about 6.30 in the morning.  He told the police that there were four males including the defendant and the defendant was sat in the front.  After they alighted from the taxi, he discovered his mobile phone was missing.  It seems from what he describes that he was, on arrival at their destination, distracted by the group, creating an opportunity for his phone to be stolen. 

11.  Police also found a Home Return Permit, a Bank of China bank card of a Mr Yeung Tak-hei as well as his identity card and Hong Kong driving licence.  The Hong Kong Identity Card and the driving licence were found in the defendant’s trouser pocket.  There was also, in addition, a fixed penalty ticket and an electricity bill also both in the name of Mr Yeung Tak-hei.

12.  Mr Yeung who is the victim of Charge 3 is also a taxi driver.  He told the police that on 31 December at again 6.30 in the morning he picked up two males in his taxi.  Fifty minutes later, when they alighted from the vehicle, he was distracted by their payment of the bill. Again, this created an opportunity for his wallet to be stolen.  All those personal documents I have referred to were in his wallet.  He has confirmed his bank card was not used nor did he suffer any loss through that bank card.  He is the victim of Charge 3.

13.  The victim of Charge 4, a Mr Kwok Sau-yin, lost his wallet on the night of 4 January.  He lost amongst other things a HKU Space student card, a HKU facilities access card, an Ocean Park yearly access ticket, a Hong Kong and Shanghai Banking Corporation bank card and a Standard Chartered Bank card. 

14.  All these items that were in his wallet were found in the defendant’s home.  These are all his items and he is the victim of Charge 4.  No loss was suffered through his bank card. 

15.  The defendant was arrested at the scene at his home.  He admitted having bought ketamine and Ice for his own consumption and used the bottles found at the scene to inhale drugs.  As for all the other items belonging to others, he told the police that he picked up people’s documents in the streets of Aberdeen but he cannot remember when. 

16.  Later, under caution again, he admitted that the iPhone 4 in his possession was taken from a taxi driver and he used it as his own. 

17.  I have heard mitigation put forward on the defendant’s behalf.  I have also been told the defendant has 54 previous convictions convicted on 26 occasions, and the defendant is only 37 years old. His only good mitigation is his plea of guilty today. 

18.  The defendant is a recidivist, a persistent offender and has been identified as one on a previous occasion.  In DCCC719/2010 the defendant was sentenced to a term of imprisonment and appealed that sentence.  And in that appeal CACC312/2010, the Court of Appeal agreed with the sentencing judge that the defendant was a recidivist and that his previous convictions could be regarded as an aggravating factor to enhance sentence.  Both courts referred to HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, pages 8 to 9, and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, at pages 833 to 834 for this principle.

19.  Not only is the defendant a recidivist, he targets time and time again the same victims, taxi drivers.  For that appeal, CACC312/2010, of the five theft charges, three victims were taxi drivers.  In that authority, the court referred to another case of the defendant, ESCC1050/2010, an Eastern Magistracy case, where again the defendant targeted a taxi driver.  The modus operandi is to get into taxis with others and distract the taxi driver at the end of the journey.  The taxi driver is distracted and his valuables are stolen. 

20.  The defendant is not an opportunistic thief. And the Court of Appeal in that authority was of the same view.  And I quote from paragraph 24:

“We did not agree with Mr Andrew’s suggestion that the offences were not premeditated and were opportunistic only. It was not an isolated occasion when a taxi passenger took the coins box or wallet of the driver. The applicant and his accomplice, or accomplices, were clearly targeting taxi drivers. With similar modus operandi, they repeatedly stole from taxis by pretending to be passengers.

25. What the applicant did may not require any tool although he did use a newspaper to divert the driver’s attention in the course of committing the offences. The applicant was skilful, and with the assistance of another, was able to successfully steal from taxi drivers and others on many occasions. If it was appropriate to use the word ‘opportunistic’ to describe what the applicant did, it was because the applicant used every opportunity to steal from others for financial gain.

We were firmly of the view that the judge was right to treat the matter seriously and to impose a deterrent sentence with a view to stop the applicant from constantly breaking the law. The public and taxi drivers who are particularly vulnerable must be protected from unscrupulous criminals such as the applicant.

The applicant was clearly a persistent and repeated offender and the judge was entirely correct to treat it as an aggravating factor.”

21.  I have heard mitigation today urging leniency and submitting to the court that if enhancement is considered for recidivism or latent risk, a short period of enhancement would be appropriate. 

22.  I have a Drug Addiction Treatment Centre report before me and I do not intend to repeat its contents.  The contents are very detailed and I have a full picture of the defendant’s background.

23.  The defendant has been in and out of prison or Drug Addiction Treatment Centre most of his life.  He is a menace to the public.  He has also fathered two children by two women and not taken responsibility for their welfare or upbringing. 

24.  He writes a letter today expressing remorse and the determination to turn over a new leaf.  I am not confident that the letter will hold true. 

25.  Defence counsel has said all he can say on the defendant’s behalf.  I have considered the authorities he has referred to in mitigation. 

26.  There are no guidelines for theft.  Each case will be looked at on its own facts and circumstances.  Relevant factors will include the loss suffered and, in this case, repeated modus operandi of the defendant to target taxi drivers, and perhaps vulnerable people like PW1 of Charge 1 who was drunk when he lost his wallet. 

27.  I will take into consideration that if the facts were akin to a pickpocketing case, a 12 to 15 months’ sentence would be considered as a starting point.  After considering this case, I take for the two taxi driver thefts, Charges 2 and 3, a starting point of 15 months, to reflect there were other people used to distract the taxi drivers which means an element of planning.

28.  For Charge 5, the possession of dangerous drug charge, the defendant has one previous conviction for possession of dangerous drugs, but he has been to Drug Addiction Treatment Centre three times.  He is a self-confessed drug addict over the past 14 years at least.

29.  In this charge, although the quantities of drugs involved are small, there are two drugs involved, ketamine and Ice.   I will take that into consideration. 

30.  Having considered the defendant’s recidivism, I will enhance these charges for this aggravating factor by 6 months.  Six months for each starting point. 

31.  Defendant, please stand up.  For Charge 1, I take a starting point of 12 months and add 6 for the aggravating factor to make a starting point of 18 months.  For Charges 2 and 3, I take a starting point of 15 months and add 6 for the aggravating factor which makes a starting point of 21 months.  For Charge 4, I take a starting point of 12 months and add 6 for the aggravating factor to make a starting point of 18 months.  For Charge 5, I take a starting point of 18 months and add 6 to take into account the aggravating factor I have identified plus a possible latent risk to make a starting point of 24 months.  For Charge 6, I take a starting point of 6 months and add 3 months for the aggravating factor to come to a starting point of 9 months.

32.  The defendant is entitled to a discount of one-third of his plea.  After that discount, for Charge 1, the defendant is sentenced to 12 months’ imprisonment; Charge 2, 14 months; Charge 3, 14 months; Charge 4, 12 months; Charge 5, 16 months; Charge 6, 6 months. 

33.  Charges 5 and 6 which are related and occurred on the same day will run concurrently.  That is, 16 months.

34.  For others, Charges 1 to 4, they are different in nature and took place on different days, so will run partly consecutive to Charge 5.  However, I do bear in mind the totality principle. 

35.  For Charge 1, of the 12 months’ sentence, 3 months will run consecutively to Charge 5.  For Charge 2, of the 14 months’ sentence, 4 months will run consecutively to Charge 5.  For Charge 3, similarly, of the 14 months’ sentence, 4 months will run consecutively to Charge 5.  For Charge 4, of the 12 months’ sentence, 3 months will run consecutively to Charge 5.  The balance will run concurrently.  That is a total sentence of 30 months which is 2 years and 6 months.