HKSAR v. LAM SHUK MING AND ANOTHER

DCCC 60/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 60 OF 2014

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REASONS FOR SENTENCE

1.  Lam Shuk Ming and Lee Kin Kwok you have both pleaded guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance, Chapter 210 (charge 1). Lam Shuk Ming you have also pleaded guilty to one charge of possession of 6.49 grammes of ice, contrary to section 8 of the Dangerous Drugs Ordinance (charge 2); one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36 of the Dangerous Drugs Ordinance (charge 3) and one charge of possession of zopiclone tablets, a poison included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Chapter 138 (charge 4).

2.  In passing sentence I have carefully considered everything said on your behalf by Miss Chan together with your mitigation letters. 

Burglary

3.  In summary in the early hours of the 19 September last year you both burgled the home of Madam Chow Miu Sheung at Tam Kung Road in Kowloon City.  At the time the flat was under renovation and nobody was living in the flat.  Two televisions, one computer monitor, one massage machine, one vacuum cleaner, one dehumidifier and one set of water purification equipment belonging to Madam Chow were stolen.  Also stolen were a grinding machine, one electric drill and one tile cutter belonging to the renovation workers.  The total value of the stolen items was $41,500 all of which were recovered from your homes except for one television, the computer monitor and the electric drill.  Under caution you both admitted taking part in the burglary. 

4.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment.  In HKSAR v Yeung Kwok Sang CACC 4/2006 a starting point of 2 years and 6 months imprisonment was said to be appropriate where the premises were not occupied because of renovation.  Whilst the flat was not occupied the owner had left valuable property in the flat and therefore this is not a case where someone is passing by a flat under renovation and notices some tools worth stealing as in Yeung Kwok Sang or where the building is vacated awaiting redevelopment as in HKSAR v Chau Man Ying CACC 439/2011.  Furthermore the value of the goods stolen, including the tools is relatively substantial, namely $41,500.

5.  Lower starting points have also been taken where the burglary is regarded as an opportunistic burglary.  Lam Shuk Ming you told the police that on seeing a key in the door of the flat you were able to unlock the door and called Lee Kin Kwok to help you take away the stolen items.  Lee Kin Kwok you have also confirmed under caution this is how you became involved in the burglary. 

6.  The prosecution accept that you may have entered the flat as a result of someone leaving the key in the door.   Although one may wonder why you were on the 2/F of 83 Tam Kung Road in the early hours of the morning the burglary can, to a degree, be said to be opportunistic.  Taking into account the premises were not occupied and the opportunistic nature of the burglary I am satisfied a starting point of 2 years and 6 months imprisonment is appropriate. 

7.  You both have numerous previous convictions including offences of dishonesty.  You Lee Kin Kwok have three for burglary.  However as these were committed in 1983 and most of your other convictions for dishonesty were a long time ago and that you Lam Shuk Ming have no convictions for burglary I do not increase the starting point by reason of persistent offending.  Giving you full credit for your pleas of guilty you are both convicted and sentenced to 1 year and 8 months imprisonment. 

Possession of ice; possession of apparatus fit and intended for the inhalation of ice and possession of part 1 poison

8.  When you Lam Shuk Ming were arrested just after midnight on the 28 September outside No. 72 Fuk Lo Tsun Road WPC 12644 found in your handbag a white plastic bag containing the zopiclone tablets; a glass tube for inhaling ice and a red purse inside which was 8 plastic bags containing the ice.  Under caution you admitted the ice was for your own use.   

9.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.  In HKSAR v Chan Tai Wah [2012] 4 HKLRD 674 the Court of Appeal said for 5.47 grammes of ice the starting point should be 15 months imprisonment.  I am satisfied for possession of 6.49 grammes of ice a starting point of 15 months is also appropriate.

Latent risk

10.  In HKSAR v Jarhia Kuldeep Singh CACC 96/2006 the appellant, who was aptly described as an unemployed addict, was stopped in the street and found in possession of 6.82 grammes of ice.  The Court of Appeal noting the appellant only had one conviction for possession of drugs enhanced the starting point by 12 months to take into account the latent risk factor.  In Chan Tai Wah the ice was found at the appellant’s residence.  The appellant also having no convictions for trafficking and was in employment the Court of Appeal considered an enhancement of 9 months was appropriate.    

11.  Taking into account that you were stopped on the street; the packaging of the ice in eight plastic bags; that you have two convictions for trafficking in drugs in 2003 and 2010; and that you were unemployed at the time, albeit supported by Lee Kin Kwok, there was in my view a risk the drugs could have fallen into other hands.  In the circumstances I increase the starting point by 12 months to 27 months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 1 year and 6 months imprisonment. 

12.  For the possession of apparatus I am satisfied a starting point of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months imprisonment.

13.  Taking into account the zopiclone was possessed together with the ice I am satisfied a short custodial sentence is appropriate.  In the circumstances I also take a starting point of 3 months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months imprisonment.

Totality

14.  I am satisfied concurrent sentences are appropriate for the possession of ice; the equipment for inhaling ice and for possession of the zopiclone tablets.  These three offences are however entirely separate and distinct from the burglary charge for which a consecutive sentence is appropriate.  This makes a total sentence to be served by you of 3 years and 2 months imprisonment, which I am satisfied properly reflects your criminality on the four charges.

Sentence

Charge 1 – D1 & D2 - 1 year and 8 months imprisonment;

Charge 2 – D1 - 1 year and 6 months imprisonment;

Charge 3 – D1 - 2 months imprisonment;

Charge 4 – D1 - 2 months imprisonment

The sentence on charges 2, 3 & 4 are ordered to be served concurrent with each other but consecutive to charge 1 making a total sentence of 3 years and 2 months imprisonment.