HKSAR v. WALIA RAVI

DCCC 787/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 787 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Chapter 210 (charge 1); one charge of possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance (charge 2); one charge of possession of Part 1 poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Chapter 138 (charge 3) and one charge of burglary, contrary to section 11 of the Theft Ordinance (charge 4).

Charges 1-3

2.  In summary at about 5:45 a.m. on the 10th June last year Mr Au, a security guard of the Regal Riverside Hotel in Shatin, was viewing the CCTV in the control room when he noticed the defendant acting suspiciously.  Mr Au continued to observe the defendant and on seeing him entering a room on the 2nd floor of the hotel went with one of his colleagues to stop the defendant, after which he called the police. 

3.  The police found in a recycle bag the defendant was carrying one water tap and two vases which had been taken from the men’s toilet on the 1st floor together with a plastic bag containing the ice and Part 1 poison subject of charges 2 and 3. 

Charge 4

4.  At about 4:30 a.m. on the 7th July last year Mr Yan and Mr Chan, both registered nurses at Prince of Wales Hospital, went to the men’s changing room on the ground floor of the hospital.  Use of the changing room was restricted to staff of the hospital, who gained access to the room by inputting the code of the digital lock which secured the room. 

5.  On entering the room Mr Yan and Mr Chan heard a bang sound.  When Mr Yan went to see what happened the defendant suddenly ran out towards the door of the room. On seeing the locker of Mr Lee, one of his colleagues, had been opened and stationery scattered on the floor Mr Yan stopped the defendant from leaving.  Mr Lee later confirmed the padlock to his locker had been damaged but nothing was missing. The defendant was subsequently arrested for burglary. 

6.  In passing sentence I have taken into account everything said on behalf of the defendant by Mr Fan, together with the letters submitted by the defendant and his family members and employer.  I take into account that in June last year the defendant had an accident at work as a result of which he became depressed and felt under pressure not being able to support his family, the first child having been born in May of that year.

7.  The defendant is properly regarded as a persistent offender, having multiple convictions for offences of dishonesty and drugs, including convictions for theft, burglary, possession of drugs and Part 1 poisons.  Previous sentences have clearly had no deterrent effect on the defendant (see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830).

8.  I note in the past the defendant has received suspended sentences and each time breached those sentences.  Most surprisingly the last time the defendant appeared in court he received another suspended sentence, although it is right to note this was for a very minor theft, which without the defendant’s admission he may not have been charged with the offence.  Unfortunately the written reasons of the magistrate do not explain why another suspended sentence was deemed appropriate.

9.  It may well be the court wished the defendant to see the birth of his first child. Whatever the reason just over three weeks later the defendant was involved in further offences in the early hours of the morning when he should have been at home looking after his wife and child. 

Theft (charge 1)

10.  Whilst the value of the stolen goods is unknown they were recovered at the time and there is therefore no loss to the owner.  I am satisfied a starting point of 3 months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 months imprisonment.

Possession of ice and zopiclone (charges 2 & 3)

11.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  Had these charges stood alone they would have been dealt with in the magistracy.  Taking into account the small quantity of ice a starting point of 9 months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 6 months imprisonment.

12.  For possession of Part 1 poison I am satisfied a starting point of 3 months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 months imprisonment.

Burglary (charge 4)

13.  The burglary was of the male staff changing room in a hospital.  This was not part of the hospital to which the public could gain access as shown by the fact access was by way of combination lock.  Mr Fan very properly accepts that the starting point is that for burglary of non-domestic premises.  The correct starting point committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).  

14.  Taking into account the defendant is a persistent offender I am satisfied the starting point is to be increased by 3 months to 2 years and    9 months.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 10 months imprisonment.

Totality

15.  I accept the dangerous drugs and poisons charges are of similar nature and order concurrent sentences.  Whilst committed on the same day the theft charge however is a separate and distinct offence for which a consecutive sentence is appropriate.  The total sentence on charges 1-3 is 8 months imprisonment which I am satisfied properly reflects the criminality of the defendant on these three charges. 

16.  The burglary charge was committed whilst on bail for the other charges.  Commission of offences on bail is an aggravating feature of sentence.  In all the circumstances I am satisfied the sentence on the burglary charge is to be served wholly consecutive to the sentences on charges 1-3 making a total sentence of 2 years and 6 months imprisonment which I am satisfied properly reflects the criminality of the defendant on all charges. 

17.  The defendant is also in breach of the suspended sentence imposed in May last year. This was in Shatin Magistracy case number ST 1984/12 and was a sentence of 1 month imprisonment suspended for 2 years.  I am satisfied it would not be unjust to activate the sentence which is ordered to be served consecutively to the sentence imposed today. 

Sentence

18.  In summary the defendant is convicted and sentenced as follows:

CHARGE 1 – 2 MONTHS IMPRISONMENT;

CHARGE 2 – 6 MONTHS IMPRISONMENT;

CHARGE 3 – 2 MONTHS IMPRISONMENT

SENTENCE ON CHARGES 2 & 3 CONCURRENT BUT CONSECUTIVE TO CHARGE 1;

CHARGE 4 – 1 YEAR AND 10 MONTHS IMPRISONMENT

CONSECUTIVE TO CHARGES 1, 2 & 3;

1 month imprisonment suspended for 2 years in ST 1984/12 activated consecutively to sentence on charges 1-4.

TOTAL SENTENCE TO BE SERVED IS 2 YEARS AND 7 MONTHS IMPRISONMENT.