A A
B DCCC 188/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 188 OF 2014
E E
-----------------------------------
F HKSAR F
v.
G G
WONG KA TUEN
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 28th May 2014 at 12:01 pm I
Present: Ms. Louisa Lai, Solicitor on fiat, for HKSAR
J J
Ms. Catherine Fung, instructed by M/s Y.C. Lee, Pang, Kwok
K K
& Ip, assigned by DLA, for the Defendant
L
Offences: [2] Burglary (入屋犯法罪) L
[3] Possession of a prohibited weapon (管有違禁武器)
M M
[4] Trafficking in dangerous drugs (販運危險藥物)
N [5] Possession of apparatuses fit and intended for the N
inhalation of a dangerous drug (管有適合於及擬用作吸服
O O
危險藥物的器具)
P P
----------------------------
Q Reasons for Sentence Q
----------------------------
R R
1. The defendant pleaded guilty to one charge of burglary
S (charge 2), one charge of possession of a prohibited weapon (charge 3), S
one charge of trafficking in dangerous drugs (charge 4) and one charge of
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 2 -
A A
B possession of apparatus fit and intended for the inhalation of a dangerous B
drug (charge 5) and was duly convicted.
C C
D 2. He pleaded not guilty to one charge of theft (charge 1). On the D
application of the prosecution, charge 1 was ordered to be kept on file, not
E E
to be proceeded with without the leave of court.
F F
Summary of Facts
G G
H Charge 2 H
I I
3. Lift maintenance workers left their tool box inside a secured
J machinery room at about 3:55pm on 31 August 2013 after conducting lift J
refurbishing work at Block B of WT Centre in Kwai Chung. Upon
K K
returning at about 11am 4 days later, they found the tools particularized in
L L
charge 2 missing. It turned out that the lock on the machinery room door
M
was defective and the door could easily be forced open. M
N N
4. Police tasked with the investigation of the burglary visited
O WT Centre on 2 September 2013. They located a closed circuit television O
camera outside room 1309 which was pointed towards the machinery room.
P P
Police officers therefore knocked on the door of room 1309 and the
Q defendant answered the door. Q
R R
Charge 3
S S
5. Police requested to view the closed circuit television footage
T T
but the defendant claimed that the system was not working. Police officers
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 3 -
A A
B entered room 1309 for enquiry and found an extendable baton on the floor B
inside the room. The defendant said it was a Police baton. The defendant
C C
was arrested and cautioned for possession of prohibited weapon. Under
D caution the defendant said that the baton was not his and that it belonged to D
his friend Lam Chi-ho.
E E
F 6. Upon search, the missing tools in charge 2 were found in an F
attic inside room 1309. The defendant was asked about them and said
G G
nothing. The defendant was then arrested for burglary, who denied the
H offence under caution. H
I I
Charges 4 and 5
J J
7. Upon further search, the following items were found. 2
K K
folding knives, 1 Japanese knife with sheath, 1 handsaw in the shape of a
L L
knife, 1 plastic bag containing traces of a powder containing ketamine, 1
M
plastic bag containing 1.45g of a crystalline solid containing 1.41g of M
methamphetamine hydrochloride; another plastic bag containing 3.24g of
N N
a crystalline solid containing 3.13g of methamphetamine hydrochloride
O and 3 “ice pots” made by glass flasks, 2 of them containing liquid O
containing traces of methamphetamine while the remaining one was
P P
broken.
Q Q
8. Through inquiry with the landlord of room 1309, Police
R R
confirmed that the defendant was the tenant and occupier of the room.
S S
9. In the subsequent video recorded interview, the defendant
T T
claimed that he worked as a tattoo artist and room 1309 was both his work
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 4 -
A A
B place and residence. He rented the room and kept the key. The defendant B
admitted that he knew the location of the machinery room, but he denied
C C
burgling the place. The baton was a gift from someone and the defendant
D kept it. The defendant admitted to purchasing the Japanese knife, handsaw D
and folding knives. The Japanese knife was for cutting meat. As for the 3
E E
“ice pots”, the defendant said 2 of them were made by him for inhaling
F “ICE” while the other one was bought by him from a stranger for inhaling F
“ICE”. The defendant admitted to being in possession of the ketamine and
G G
ICE found inside room 1309. The defendant stated that he supplied ICE to
H a Mr. Lam free of charge as a treat for a friend and that Lam had been to H
room 1309 for a few times before and the defendant treated Lam with ICE
I I
on those occasions. The defendant however only treated Lam and not
J others, because he had known Lam for a long time. J
K K
10. Expert examination confirmed that the extendable baton falls
L
within the definition of “prohibited weapon” of Weapons Ordinance, Cap. L
M
217. M
N N
11. The defendant admitted at the final paragraph of the summary
O of facts that at the time of the offence, the defendant entered the machinery O
room as a trespasser and stole therein.
P P
Q Previous convictions Q
R R
12. The defendant has 51 convictions from 33 court appearances.
S There was one previous conviction for trafficking in dangerous drugs in S
1997 when he was sentenced to 4 years’ imprisonment.
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 5 -
A A
B 13. There are 3 previous convictions for burglary, with the last B
one back in 1996. There are however 30 convictions for theft, convictions
C C
that involve dishonesty, with the latest one in October 2011 when he was
D sentenced to 4 months’ imprisonment. D
E E
14. There is 1 previous conviction for possession of equipment fit
F and intended for inhaling dangerous drugs in August 2001 when the F
defendant was sentenced to the DATC. There are also 11 previous
G G
convictions for possession of dangerous drugs, with the last one being on
H 31 October 2012. These possession of dangerous drugs convictions are H
relevant to the ground of mitigation of self-consumption being put forward
I I
by the defendant in relation to the trafficking in dangerous drugs charge.
J J
15. Lastly, there is 1 conviction for possession of prohibited
K K
weapons in 2004 when the defendant was sentenced to 1 month’s
L L
imprisonment, and 1 conviction for possession of offensive weapon in a
M
public place in August 2012 when he was sentenced to 4 months’ M
imprisonment.
N N
O Mitigation O
P P
16. The defendant is 43 and single. He has good relationship with
Q his family which included his parents, elder brother, younger brother and a Q
younger sister. The defendant worked as a decoration worker as a painter
R R
after he left school and first became a tattooist in 1996 after completing his
S training. S
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 6 -
A A
B 17. The defendant set up his own tattoo parlour in June 2013. He B
was making substantial amount of money from his tattoo work, earning
C C
more than $25,000 in the 2 month period of July and August.
D D
18. In relation to the burglary, it is the defendant’s case that the
E E
burglary was an opportunistic crime. Since the defendant’s room was on
F the same floor of the machinery room, when the defendant walked pass one F
day and found it left opened, he went in, saw the 2 boxes and just took
G G
them.
H H
19. In relation to the baton, it is the defendant’s case that it was a
I I
gift from a friend and the defendant had never brought it outside of his
J room. He had no use for it and would not have bought something like that J
himself. Since it was a gift, he just kept it lying around on the floor inside
K K
his home.
L L
M
20. The defendant’s counsel referred to the case of HKSAR v Wu M
Kim Wan HCMA 1141/2001 where the appellant pleaded guilty to a
N N
similar charge. There the appellant bought the weapon in Hong Kong and
O brought it to China for his own protection and then brought it back. He was O
sentenced to 2 months’ imprisonment in the magistracy, but the sentence
P P
was replaced by a fine of $2,500 upon appeal.
Q Q
21. Comparing that case to ours, the defendant had not used the
R R
baton, just left it at home and had not brought it outside at all.
S S
22. In relation to the trafficking charge, it is the defendant’s case
T T
that it is a case of social trafficking. What happened was that the defendant
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 7 -
A A
B had a tattoo customer called Ah Bor, who asked the defendant if he would B
like some ICE and that Ah Bor could deliver the drug to him. The
C C
defendant agreed and that was how he came to be in possession of the ICE
D in charge 4. It is the defendant’s counsel’s submission that the defendant D
was not a drug addict at the time of the commission of the offence. The
E E
defendant could just take it or leave it. The defendant later gave further
F instructions and confirmed that he was in fact a drug addict. F
G G
23. It is the defendant’s case that the social trafficking took place
H when his friend Mr. Lam visited and on 2 to 3 occasions the defendant had H
offered Mr. Lam a few puffs of ICE free of charge. It is the defendant’s
I I
estimate that of the 4.54g of ICE content, about 1.5g only was consumed
J by Mr. Lam, with the remaining 3.04g for the defendant’s eventual own J
consumption.
K K
L L
24. Counsel for the defendant relies on the case of HKSAR v
M
Wong Suet Hau & another, CACC 366 and 487 of 2000 to suggest that the M
defendant should only be sentenced for trafficking based on the smaller
N N
quantity after taking into account what the defendant would have kept for
O his own consumption. O
P P
25. Apart from the fact that the trafficking was technical and
Q relatively minor, it is the defendant’s case that given his newfound source Q
of income as a tattoo artist, he was well able to support his own drug
R R
addiction. Although counsel for the defendant initially submitted that the
S defendant was not a drug addict, the defendant’s previous convictions S
seem to suggest otherwise and that in turn should be one of the factors in
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 8 -
A A
B support of the defendant’s assertion that most of the ICE were for his own B
consumption.
C C
D 26. In terms of totality, counsel submitted that the court should be D
as lenient as possible and order part of the sentences to be served
E E
concurrently.
F F
Sentencing guidelines
G G
H Burglary (charge 2) H
I I
27. It is trite law that the proper starting point in sentencing for
J burglary of a non-domestic premises for someone with a clear record and J
absent any mitigating or aggravating circumstances is that of 2 and a half
K K
year’s imprisonment.
L L
M
Trafficking in dangerous drugs: ICE (charge 4) M
N N
28. The sentencing guidelines for trafficking in
O methamphetamine hydrochloride is found in the case of AG v Ching O
Kwok-hung [1991] 2 HKLR 125 as amended in HKSAR v Capitania [2004]
P P
HKCU 926. For ICE of up to 10g, the starting point should be between 3 to
Q 7 years’ imprisonment. Q
R R
Sentence
S S
Charge 2
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 9 -
A A
B 29. I accept what was put forward in mitigation and find that it B
was an opportunistic burglary. This finding is supported by the summary
C C
of facts stating that the lock on the door of the machinery room was found
D to have been defective and the fact that the defendant lived on the same D
floor as the machinery room.
E E
F 30. This is however not the defendant’s first burglary conviction F
and the defendant is not of clear record. While these are not aggravating
G G
factors, they certainly are not mitigating factors either.
H H
31. I will adopt a starting point of 12 months’ imprisonment,
I I
discounting by one third in recognition of the defendant’s guilty plea and
J sentence him to 8 months’ imprisonment in relation to charge 2. J
K K
Charge 3
L L
M
32. The maximum sentence for the possession of prohibited M
weapon under s.4 of the Weapons Ordinance, Cap.217 is that of a fine of
N N
$10,000 and to imprisonment for 3 years.
O O
33. This is not the defendant’s first conviction for this type of
P P
offence and his last conviction was in 2012, although it was for the
Q different offence of possession of an offensive weapon in a public place Q
under s.33 of the Public Order Ordinance, Cap.245.
R R
S 34. I do note that the baton was found in the defendant’s home S
and that there is no evidence at all that he had or was going to be using the
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 10 -
A A
B prohibited weapon. I take into consideration the case of HKSAR v Wu Kim B
Wan and find that a fine is appropriate in the present situation.
C C
D 35. The defendant is fined $5,000 in relation to charge 3, to be D
paid within 14 days.
E E
F Charge 4: Trafficking in dangerous drugs F
G G
36. The dangerous drugs involved in this charge is 4.54g of ICE.
H Applying the guidelines, a proper starting point would be that of 57 H
months’ imprisonment.
I I
J 37. I find that given the defendant’s confession to the Police and J
given the defendant’s evidence of income and the presence of
K K
paraphernalia inside his home for smoking ICE, together with the long
L L
history of possession of dangerous drugs convictions, the defendant did
M
possess part of the ICE for his own consumption. I will also accept the M
amount put forward by him in mitigation and find that in relation to the
N N
trafficking charge, the defendant will be sentenced based on 1.5g of the
O ICE being for the purpose of trafficking. For that, I will apply the O
guidelines and adopt a starting point of 42 months’ imprisonment,
P P
discounting it by one third in recognition of the defendant’s guilty plea,
Q resulting in a sentence of 28 months’ imprisonment. Q
R R
38. As for the simple possession of the remaining 3.04g of ICE,
S given the appalling record of the defendant in relation to the possession of S
dangerous drugs, I will adopt a starting point of 18 months’ imprisonment,
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 11 -
A A
B discounting it by one third in recognition of the defendant’s guilty plea, B
resulting in a sentence of 12 months’ imprisonment.
C C
D 39. However, even if the full 4.54g of ICE was for trafficking, I D
would only have adopted a starting point of 57 months’ imprisonment,
E E
resulting in a discounted sentence of 38 months’ imprisonment.
F F
40. I will therefore take that into consideration and sentence the
G G
defendant to 38 months’ imprisonment in relation to charge 4.
H H
Charge 5: Possession of apparatus fit and intended for inhalation of a
I I
dangerous drug
J J
41. The maximum sentence for this offence is that of a fine of
K K
$10,000 and imprisonment for 3 years. Since the defendant has been
L L
sentenced to a term of imprisonment of more than 9 months in the same
M
proceedings, s.54A(1) of the Dangerous Drugs Ordinance does not apply M
and there is no need to call for a DATC report before sentencing the
N N
defendant on charge 5.
O O
42. I agree with counsel for the defendant that this offence is
P P
tightly linked to the defendant’s commission of charge 4. I will adopt a
Q starting point of 12 months’ imprisonment, reducing it by one third in Q
recognition of the defendant’s guilty plea and sentence him to 8 months’
R R
imprisonment on charge 5. I order the sentence of this charge to be served
S concurrently to the sentence in charge 4. S
T T
Totality
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 12 -
A A
B B
43. I will now have to stand back and consider what would be a
C C
proper final sentence in the circumstances of the case.
D D
44. It all started when the defendant decided to steal the contents
E E
of the tool box. It was not a very wise move given that the defendant lived
F right on the same floor of the machinery room. The defendant seems to be F
someone who could not think clearly about what to do with his life, hence
G G
the long list of previous convictions involving thefts and drugs. The
H eventual sentence must therefore carry an element of deterrence to warn H
the defendant not to commit further offences in the future.
I I
J 45. The commission of the burglary had no connection to the J
commission of the trafficking in dangerous drugs offence, there is no
K K
evidence that one had led to the other. They were committed on different
L L
days and under totally different circumstances.
M M
46. I will order that 7 months of the sentence in charge 2 be
N N
served consecutively to the concurrent sentence in charges 4 and 5, the
O balance to be served concurrently, making a total sentence of 45 months’ O
imprisonment.
P P
Q Q
R R
(Douglas T.H .Yau)
District Judge
S S
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
A A
B DCCC 188/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 188 OF 2014
E E
-----------------------------------
F HKSAR F
v.
G G
WONG KA TUEN
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 28th May 2014 at 12:01 pm I
Present: Ms. Louisa Lai, Solicitor on fiat, for HKSAR
J J
Ms. Catherine Fung, instructed by M/s Y.C. Lee, Pang, Kwok
K K
& Ip, assigned by DLA, for the Defendant
L
Offences: [2] Burglary (入屋犯法罪) L
[3] Possession of a prohibited weapon (管有違禁武器)
M M
[4] Trafficking in dangerous drugs (販運危險藥物)
N [5] Possession of apparatuses fit and intended for the N
inhalation of a dangerous drug (管有適合於及擬用作吸服
O O
危險藥物的器具)
P P
----------------------------
Q Reasons for Sentence Q
----------------------------
R R
1. The defendant pleaded guilty to one charge of burglary
S (charge 2), one charge of possession of a prohibited weapon (charge 3), S
one charge of trafficking in dangerous drugs (charge 4) and one charge of
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 2 -
A A
B possession of apparatus fit and intended for the inhalation of a dangerous B
drug (charge 5) and was duly convicted.
C C
D 2. He pleaded not guilty to one charge of theft (charge 1). On the D
application of the prosecution, charge 1 was ordered to be kept on file, not
E E
to be proceeded with without the leave of court.
F F
Summary of Facts
G G
H Charge 2 H
I I
3. Lift maintenance workers left their tool box inside a secured
J machinery room at about 3:55pm on 31 August 2013 after conducting lift J
refurbishing work at Block B of WT Centre in Kwai Chung. Upon
K K
returning at about 11am 4 days later, they found the tools particularized in
L L
charge 2 missing. It turned out that the lock on the machinery room door
M
was defective and the door could easily be forced open. M
N N
4. Police tasked with the investigation of the burglary visited
O WT Centre on 2 September 2013. They located a closed circuit television O
camera outside room 1309 which was pointed towards the machinery room.
P P
Police officers therefore knocked on the door of room 1309 and the
Q defendant answered the door. Q
R R
Charge 3
S S
5. Police requested to view the closed circuit television footage
T T
but the defendant claimed that the system was not working. Police officers
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 3 -
A A
B entered room 1309 for enquiry and found an extendable baton on the floor B
inside the room. The defendant said it was a Police baton. The defendant
C C
was arrested and cautioned for possession of prohibited weapon. Under
D caution the defendant said that the baton was not his and that it belonged to D
his friend Lam Chi-ho.
E E
F 6. Upon search, the missing tools in charge 2 were found in an F
attic inside room 1309. The defendant was asked about them and said
G G
nothing. The defendant was then arrested for burglary, who denied the
H offence under caution. H
I I
Charges 4 and 5
J J
7. Upon further search, the following items were found. 2
K K
folding knives, 1 Japanese knife with sheath, 1 handsaw in the shape of a
L L
knife, 1 plastic bag containing traces of a powder containing ketamine, 1
M
plastic bag containing 1.45g of a crystalline solid containing 1.41g of M
methamphetamine hydrochloride; another plastic bag containing 3.24g of
N N
a crystalline solid containing 3.13g of methamphetamine hydrochloride
O and 3 “ice pots” made by glass flasks, 2 of them containing liquid O
containing traces of methamphetamine while the remaining one was
P P
broken.
Q Q
8. Through inquiry with the landlord of room 1309, Police
R R
confirmed that the defendant was the tenant and occupier of the room.
S S
9. In the subsequent video recorded interview, the defendant
T T
claimed that he worked as a tattoo artist and room 1309 was both his work
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 4 -
A A
B place and residence. He rented the room and kept the key. The defendant B
admitted that he knew the location of the machinery room, but he denied
C C
burgling the place. The baton was a gift from someone and the defendant
D kept it. The defendant admitted to purchasing the Japanese knife, handsaw D
and folding knives. The Japanese knife was for cutting meat. As for the 3
E E
“ice pots”, the defendant said 2 of them were made by him for inhaling
F “ICE” while the other one was bought by him from a stranger for inhaling F
“ICE”. The defendant admitted to being in possession of the ketamine and
G G
ICE found inside room 1309. The defendant stated that he supplied ICE to
H a Mr. Lam free of charge as a treat for a friend and that Lam had been to H
room 1309 for a few times before and the defendant treated Lam with ICE
I I
on those occasions. The defendant however only treated Lam and not
J others, because he had known Lam for a long time. J
K K
10. Expert examination confirmed that the extendable baton falls
L
within the definition of “prohibited weapon” of Weapons Ordinance, Cap. L
M
217. M
N N
11. The defendant admitted at the final paragraph of the summary
O of facts that at the time of the offence, the defendant entered the machinery O
room as a trespasser and stole therein.
P P
Q Previous convictions Q
R R
12. The defendant has 51 convictions from 33 court appearances.
S There was one previous conviction for trafficking in dangerous drugs in S
1997 when he was sentenced to 4 years’ imprisonment.
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 5 -
A A
B 13. There are 3 previous convictions for burglary, with the last B
one back in 1996. There are however 30 convictions for theft, convictions
C C
that involve dishonesty, with the latest one in October 2011 when he was
D sentenced to 4 months’ imprisonment. D
E E
14. There is 1 previous conviction for possession of equipment fit
F and intended for inhaling dangerous drugs in August 2001 when the F
defendant was sentenced to the DATC. There are also 11 previous
G G
convictions for possession of dangerous drugs, with the last one being on
H 31 October 2012. These possession of dangerous drugs convictions are H
relevant to the ground of mitigation of self-consumption being put forward
I I
by the defendant in relation to the trafficking in dangerous drugs charge.
J J
15. Lastly, there is 1 conviction for possession of prohibited
K K
weapons in 2004 when the defendant was sentenced to 1 month’s
L L
imprisonment, and 1 conviction for possession of offensive weapon in a
M
public place in August 2012 when he was sentenced to 4 months’ M
imprisonment.
N N
O Mitigation O
P P
16. The defendant is 43 and single. He has good relationship with
Q his family which included his parents, elder brother, younger brother and a Q
younger sister. The defendant worked as a decoration worker as a painter
R R
after he left school and first became a tattooist in 1996 after completing his
S training. S
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 6 -
A A
B 17. The defendant set up his own tattoo parlour in June 2013. He B
was making substantial amount of money from his tattoo work, earning
C C
more than $25,000 in the 2 month period of July and August.
D D
18. In relation to the burglary, it is the defendant’s case that the
E E
burglary was an opportunistic crime. Since the defendant’s room was on
F the same floor of the machinery room, when the defendant walked pass one F
day and found it left opened, he went in, saw the 2 boxes and just took
G G
them.
H H
19. In relation to the baton, it is the defendant’s case that it was a
I I
gift from a friend and the defendant had never brought it outside of his
J room. He had no use for it and would not have bought something like that J
himself. Since it was a gift, he just kept it lying around on the floor inside
K K
his home.
L L
M
20. The defendant’s counsel referred to the case of HKSAR v Wu M
Kim Wan HCMA 1141/2001 where the appellant pleaded guilty to a
N N
similar charge. There the appellant bought the weapon in Hong Kong and
O brought it to China for his own protection and then brought it back. He was O
sentenced to 2 months’ imprisonment in the magistracy, but the sentence
P P
was replaced by a fine of $2,500 upon appeal.
Q Q
21. Comparing that case to ours, the defendant had not used the
R R
baton, just left it at home and had not brought it outside at all.
S S
22. In relation to the trafficking charge, it is the defendant’s case
T T
that it is a case of social trafficking. What happened was that the defendant
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 7 -
A A
B had a tattoo customer called Ah Bor, who asked the defendant if he would B
like some ICE and that Ah Bor could deliver the drug to him. The
C C
defendant agreed and that was how he came to be in possession of the ICE
D in charge 4. It is the defendant’s counsel’s submission that the defendant D
was not a drug addict at the time of the commission of the offence. The
E E
defendant could just take it or leave it. The defendant later gave further
F instructions and confirmed that he was in fact a drug addict. F
G G
23. It is the defendant’s case that the social trafficking took place
H when his friend Mr. Lam visited and on 2 to 3 occasions the defendant had H
offered Mr. Lam a few puffs of ICE free of charge. It is the defendant’s
I I
estimate that of the 4.54g of ICE content, about 1.5g only was consumed
J by Mr. Lam, with the remaining 3.04g for the defendant’s eventual own J
consumption.
K K
L L
24. Counsel for the defendant relies on the case of HKSAR v
M
Wong Suet Hau & another, CACC 366 and 487 of 2000 to suggest that the M
defendant should only be sentenced for trafficking based on the smaller
N N
quantity after taking into account what the defendant would have kept for
O his own consumption. O
P P
25. Apart from the fact that the trafficking was technical and
Q relatively minor, it is the defendant’s case that given his newfound source Q
of income as a tattoo artist, he was well able to support his own drug
R R
addiction. Although counsel for the defendant initially submitted that the
S defendant was not a drug addict, the defendant’s previous convictions S
seem to suggest otherwise and that in turn should be one of the factors in
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 8 -
A A
B support of the defendant’s assertion that most of the ICE were for his own B
consumption.
C C
D 26. In terms of totality, counsel submitted that the court should be D
as lenient as possible and order part of the sentences to be served
E E
concurrently.
F F
Sentencing guidelines
G G
H Burglary (charge 2) H
I I
27. It is trite law that the proper starting point in sentencing for
J burglary of a non-domestic premises for someone with a clear record and J
absent any mitigating or aggravating circumstances is that of 2 and a half
K K
year’s imprisonment.
L L
M
Trafficking in dangerous drugs: ICE (charge 4) M
N N
28. The sentencing guidelines for trafficking in
O methamphetamine hydrochloride is found in the case of AG v Ching O
Kwok-hung [1991] 2 HKLR 125 as amended in HKSAR v Capitania [2004]
P P
HKCU 926. For ICE of up to 10g, the starting point should be between 3 to
Q 7 years’ imprisonment. Q
R R
Sentence
S S
Charge 2
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 9 -
A A
B 29. I accept what was put forward in mitigation and find that it B
was an opportunistic burglary. This finding is supported by the summary
C C
of facts stating that the lock on the door of the machinery room was found
D to have been defective and the fact that the defendant lived on the same D
floor as the machinery room.
E E
F 30. This is however not the defendant’s first burglary conviction F
and the defendant is not of clear record. While these are not aggravating
G G
factors, they certainly are not mitigating factors either.
H H
31. I will adopt a starting point of 12 months’ imprisonment,
I I
discounting by one third in recognition of the defendant’s guilty plea and
J sentence him to 8 months’ imprisonment in relation to charge 2. J
K K
Charge 3
L L
M
32. The maximum sentence for the possession of prohibited M
weapon under s.4 of the Weapons Ordinance, Cap.217 is that of a fine of
N N
$10,000 and to imprisonment for 3 years.
O O
33. This is not the defendant’s first conviction for this type of
P P
offence and his last conviction was in 2012, although it was for the
Q different offence of possession of an offensive weapon in a public place Q
under s.33 of the Public Order Ordinance, Cap.245.
R R
S 34. I do note that the baton was found in the defendant’s home S
and that there is no evidence at all that he had or was going to be using the
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 10 -
A A
B prohibited weapon. I take into consideration the case of HKSAR v Wu Kim B
Wan and find that a fine is appropriate in the present situation.
C C
D 35. The defendant is fined $5,000 in relation to charge 3, to be D
paid within 14 days.
E E
F Charge 4: Trafficking in dangerous drugs F
G G
36. The dangerous drugs involved in this charge is 4.54g of ICE.
H Applying the guidelines, a proper starting point would be that of 57 H
months’ imprisonment.
I I
J 37. I find that given the defendant’s confession to the Police and J
given the defendant’s evidence of income and the presence of
K K
paraphernalia inside his home for smoking ICE, together with the long
L L
history of possession of dangerous drugs convictions, the defendant did
M
possess part of the ICE for his own consumption. I will also accept the M
amount put forward by him in mitigation and find that in relation to the
N N
trafficking charge, the defendant will be sentenced based on 1.5g of the
O ICE being for the purpose of trafficking. For that, I will apply the O
guidelines and adopt a starting point of 42 months’ imprisonment,
P P
discounting it by one third in recognition of the defendant’s guilty plea,
Q resulting in a sentence of 28 months’ imprisonment. Q
R R
38. As for the simple possession of the remaining 3.04g of ICE,
S given the appalling record of the defendant in relation to the possession of S
dangerous drugs, I will adopt a starting point of 18 months’ imprisonment,
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 11 -
A A
B discounting it by one third in recognition of the defendant’s guilty plea, B
resulting in a sentence of 12 months’ imprisonment.
C C
D 39. However, even if the full 4.54g of ICE was for trafficking, I D
would only have adopted a starting point of 57 months’ imprisonment,
E E
resulting in a discounted sentence of 38 months’ imprisonment.
F F
40. I will therefore take that into consideration and sentence the
G G
defendant to 38 months’ imprisonment in relation to charge 4.
H H
Charge 5: Possession of apparatus fit and intended for inhalation of a
I I
dangerous drug
J J
41. The maximum sentence for this offence is that of a fine of
K K
$10,000 and imprisonment for 3 years. Since the defendant has been
L L
sentenced to a term of imprisonment of more than 9 months in the same
M
proceedings, s.54A(1) of the Dangerous Drugs Ordinance does not apply M
and there is no need to call for a DATC report before sentencing the
N N
defendant on charge 5.
O O
42. I agree with counsel for the defendant that this offence is
P P
tightly linked to the defendant’s commission of charge 4. I will adopt a
Q starting point of 12 months’ imprisonment, reducing it by one third in Q
recognition of the defendant’s guilty plea and sentence him to 8 months’
R R
imprisonment on charge 5. I order the sentence of this charge to be served
S concurrently to the sentence in charge 4. S
T T
Totality
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V
- 12 -
A A
B B
43. I will now have to stand back and consider what would be a
C C
proper final sentence in the circumstances of the case.
D D
44. It all started when the defendant decided to steal the contents
E E
of the tool box. It was not a very wise move given that the defendant lived
F right on the same floor of the machinery room. The defendant seems to be F
someone who could not think clearly about what to do with his life, hence
G G
the long list of previous convictions involving thefts and drugs. The
H eventual sentence must therefore carry an element of deterrence to warn H
the defendant not to commit further offences in the future.
I I
J 45. The commission of the burglary had no connection to the J
commission of the trafficking in dangerous drugs offence, there is no
K K
evidence that one had led to the other. They were committed on different
L L
days and under totally different circumstances.
M M
46. I will order that 7 months of the sentence in charge 2 be
N N
served consecutively to the concurrent sentence in charges 4 and 5, the
O balance to be served concurrently, making a total sentence of 45 months’ O
imprisonment.
P P
Q Q
R R
(Douglas T.H .Yau)
District Judge
S S
T T
U U
CRT21/28.5.2014 DCCC188/2014/Reasons for Sentence
V V