A A
B B
DCCC 596/2020
C [2020] HKDC 1095 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 596 OF 2020
F F
G ------------------------------ G
HKSAR
H H
v
I YUNG Wai-leong I
------------------------------
J J
K Before: HH Judge Sham K
Date: 23 November 2020
L L
Present: Ms Sabrina See, Counsel on fiat, for HKSAR
M Ms Shirley Cornelia Hung instructed by Messrs. O Tse & Co. M
assigned by the Director of Legal Aid for the defendant.
N N
Offence: [1] Theft (盜竊罪)
O O
[2] Going equipped for stealing (外出時備有偷竊用的工具)
P [3] Possession of a dangerous drug (管有危險藥物) P
[4] Failure to produce proof of identity on demand (未能在規
Q Q
定下出示身分證明文件)
R R
S --------------------------------------- S
REASONS FOR SENTENCE
T T
---------------------------------------
U U
V V
-2-
A A
B B
1. A man, who was too drunk to know what was going on,
C managed to jump in a taxi in Wan Chai to go home in the small hours of C
the night, but he was unable to make it back home, about two hours later
D D
police officers found him totally inebriated lying on the road near where
E he lived, the Sun Kwai Hing Garden in Kwai Chung. E
F F
2. By then, the man realised his handbag had gone missing.
G There are lots of things in it including his ID card and Mainland travel G
permit, two credit cards, a membership card, 3 mobile phones, a couple of
H H
thousand dollars in cash etc.
I I
3. About 6 weeks later at around noontime on 19 February
J 2020, a patrol officer stopped the defendant in the streets of Mong Kok for J
ID check, but the defendant was not carrying any on him, which formed
K K
the subject matter of charge 4 of failing to produce proof of identity on
L demand1. L
M M
4. A search of his handbag reveals a number of offences. The
N man’s ID card, Mainland travel permit, credit cards and membership card N
(charge 1 of theft2); a crowbar, a screwdriver, a spanner and a cutter (charge
O O
2 of going equipped for stealing3); a packet of cocaine – 0.2g of a solid
P containing 0.16g of cocaine (charge 3 of possession of a dangerous drug4). P
Q Q
5. The defendant, aged 35, pleaded guilty before me to all 4
R charges. Not a stranger to the court, the defendant has 23 convictions to R
his name covering a wide range of offences – drug-related, violent and
S S
1
Contrary to section 17C (3) of the Immigration Ordinance Cap115
T 2 T
Contrary to section 9 of the Theft Ordinance Cap210
3
Contrary to section 27 (1) of the Theft Ordinance Cap210
4
Contrary to section 8 (1)(a) and (2) of the Dangerous Drugs Ordinance Cap134
U U
V V
-3-
A A
B B
dishonesty offences, offences relating to counterfeiting notes and
C possession of forged ID card. C
D 6. In his interview with the police, the defendant explained how D
he came by the man’s properties. He picked up a wallet with those items in
E E
it in Dundas Street about a month ago and thereafter was sort of forgetting
F all about it; he never used any of the identity documents or the bank cards. F
G G
7. Insofar as those tools were concerned, he initially lied about
H
their use but later changed to say he intended to use them to get dolls from H
the “Claw Machines” in the Games Centres for his girlfriend. The drugs,
I I
he said, were for his personal use.
J J
8. In mitigation, the court heard that the defendant worked in the
K construction industry earning about $9,000 a month on average. The K
defendant lives with his parents who are in their late 60’s, though not
L L
entirely dependent on him, the defendant bears responsibility of looking
M after their daily needs, and he also has his girlfriend (now his fiancee) and M
her 5-year-old son, whom the defendant treats as his own, to provide for.
N N
O
9. Counsel for the defendant, Miss Hung, submitted that despite O
his rather unimpressive record, the defendant is in fact kind in nature. He
P P
is a member of a non-profit organisation called “Hong Kong with Heart”
Q actively taking part in various volunteer work and social services, and Q
dedicating in caring for and assisting elderlies who live alone as well as
R R
those with disabilities. His enthusiasm and effort in serving the community,
S Miss Hung said, have been met with positive feedbacks and compliments. S
A supporting letter from the Hong Kong with Heart was handed up to the
T T
court.
U U
V V
-4-
A A
B B
10. Miss Hung said the strongest mitigating factor in the
C defendant’s favour is his frank admission to all the charges he faced, and C
went on to say that the defendant has expressed genuine remorse having
D D
deeply reflected upon his own behaviour. With the increasing
E responsibility as a son for his elderly parents, as well as a “father” for the E
young child of his fiancee, the defendant understands the importance for
F F
him to turn over a new leaf and to establish a law-abiding and respectable
G lifestyle. G
H 11. Miss Hung has taken the court through various authorities in H
respect of each of the offence. Regarding the man’s missing items found
I I
on the defendant, Miss Hung submitted it is no more than a case of “theft
J by finding” which, as the authorities suggested, would normally attract a J
term of 6 months’ imprisonment. The term is even lower for the offence of
K K
going equipped such as 2 months after plea. As for the drugs in question,
L one authority5, the facts of which are similar to the instant case (0.15g of L
cocaine) except that the appellant in that case was a person of clean record,
M M
confirmed the court adopting a starting point of 6 months.
N N
12. True to say there is no evidence to counter the defence’s “theft
O O
by finding” version of event, but the seriousness lies with his continued
P appropriation of those items; his stealing behaviour does not end but P
continues as long as he keeps those items. He has had them for at least a
Q Q
month for he said he picked them up a month ago, and if any of the items,
R in particular the ID card, were put to illegal use, the ensuing offences would R
be a serious one.
S S
T T
5
Ip Chun Hin [2019] HKDC 596
U U
V V
-5-
A A
B B
13. I find it difficult to believe that he carried those tools around
C solely for the purpose of stealing some dolls from a gaming machine. C
Looking at his record, he has one similar prior conviction of going
D D
equipped for stealing back in 2014 for which he was sent to DATC, and a
E number of thefts though none of which is to do with burglary. E
F 14. Let’s not forget the particulars of the offence of going quipped F
to which the defendant admitted allege that he had those tools for use in
G G
the course of or in connection with burglary. There is no denying that these
H tools are suitable implements for use in the course of break-ins. H
I I
15. Coming to the drug offence, though it is not of large quantity
J and we are talking about simple possession as opposed to trafficking, it still J
remains a serious offence.
K K
16. Here it would be worth mentioning the words of the Appellate
L L
Court in Mok Cho Tik 6 in dealing with the offence of possession of drugs:
M M
“……We remain of the view that the starting point for mere
N N
possession of a quantity of dangerous drugs which a bona fide
user would normally have in his possession should be in the
O range of 12 to 18 months, (and that is the range that has been O
adopted particularly for cases in the District and High Court), but
that is not the be all and end all of the appropriate starting point.
P It assumes cases in which a sentence of imprisonment rather than P
a rehabilitating measure is deemed necessary; and it does not
Q
seek to exclude magistrates from imposing lesser terms for very Q
small quantities where the circumstances so warrant. Obviously,
the quantity will be the main governing factor which will
R determine where the starting point will lie. If an offender is a R
persistent offender, he can expect a starting point to be higher
than it otherwise would be……”
S S
T T
6
CACC 165/2000
U U
V V
-6-
A A
B B
17. The defendant is clearly a repeat offender of drug offences (all
C together 6 convictions of possession and one conviction of trafficking). He C
has his first conviction of possession of drugs dating back to March 2009
D D
for which he was sent to DATC; 15 months later, he was sent to prison for
E 32 months for drug trafficking. In the ensuing decade, he has been in and E
out either of prison or DATC several times for drug-related offences. His
F F
last drug conviction was in 2018 and he was sent to prison for 16 months
G for possession of drugs. G
H H
18. Ever since his release from prison for the drug offence, Miss
I Hung emphasized once again the fact that the defendant has changed to a I
better man having truly reflected on his past misdeeds, and he was
J J
determined to be a responsible father and son. As for his commission of
K the present offences, Miss Hung put it down to the defendant being foolish. K
L 19. As far as mitigation is concerned, besides his guilty pleas, L
there isn’t any of substance.
M M
N 20. Based on what was said above, I take as the starting points 12 N
months for each of the charges 1, 2 and 3 and reduce it to 8 months each to
O O
reflect his timely pleas.
P P
21. Taking into account the totality principle, I order that charge
Q 1 be run consecutively to three months of each subsequent charge, the rest Q
concurrently; the total term is one of 14 months’ imprisonment.
R R
S 22. Lastly, for the offence of failing to produce proof of identity, S
though this is his second offence, a financial penalty in my view would still
T T
be sufficient to dispose of the matter. The defendant is fined $500 to be
U U
V V
-7-
A A
B B
paid on or before 31 December 2020 and in default, he has to serve a term
C of 3 days’ imprisonment consecutive to his existing term. C
D D
E E
( Sham )
F District Judge F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 596/2020
C [2020] HKDC 1095 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 596 OF 2020
F F
G ------------------------------ G
HKSAR
H H
v
I YUNG Wai-leong I
------------------------------
J J
K Before: HH Judge Sham K
Date: 23 November 2020
L L
Present: Ms Sabrina See, Counsel on fiat, for HKSAR
M Ms Shirley Cornelia Hung instructed by Messrs. O Tse & Co. M
assigned by the Director of Legal Aid for the defendant.
N N
Offence: [1] Theft (盜竊罪)
O O
[2] Going equipped for stealing (外出時備有偷竊用的工具)
P [3] Possession of a dangerous drug (管有危險藥物) P
[4] Failure to produce proof of identity on demand (未能在規
Q Q
定下出示身分證明文件)
R R
S --------------------------------------- S
REASONS FOR SENTENCE
T T
---------------------------------------
U U
V V
-2-
A A
B B
1. A man, who was too drunk to know what was going on,
C managed to jump in a taxi in Wan Chai to go home in the small hours of C
the night, but he was unable to make it back home, about two hours later
D D
police officers found him totally inebriated lying on the road near where
E he lived, the Sun Kwai Hing Garden in Kwai Chung. E
F F
2. By then, the man realised his handbag had gone missing.
G There are lots of things in it including his ID card and Mainland travel G
permit, two credit cards, a membership card, 3 mobile phones, a couple of
H H
thousand dollars in cash etc.
I I
3. About 6 weeks later at around noontime on 19 February
J 2020, a patrol officer stopped the defendant in the streets of Mong Kok for J
ID check, but the defendant was not carrying any on him, which formed
K K
the subject matter of charge 4 of failing to produce proof of identity on
L demand1. L
M M
4. A search of his handbag reveals a number of offences. The
N man’s ID card, Mainland travel permit, credit cards and membership card N
(charge 1 of theft2); a crowbar, a screwdriver, a spanner and a cutter (charge
O O
2 of going equipped for stealing3); a packet of cocaine – 0.2g of a solid
P containing 0.16g of cocaine (charge 3 of possession of a dangerous drug4). P
Q Q
5. The defendant, aged 35, pleaded guilty before me to all 4
R charges. Not a stranger to the court, the defendant has 23 convictions to R
his name covering a wide range of offences – drug-related, violent and
S S
1
Contrary to section 17C (3) of the Immigration Ordinance Cap115
T 2 T
Contrary to section 9 of the Theft Ordinance Cap210
3
Contrary to section 27 (1) of the Theft Ordinance Cap210
4
Contrary to section 8 (1)(a) and (2) of the Dangerous Drugs Ordinance Cap134
U U
V V
-3-
A A
B B
dishonesty offences, offences relating to counterfeiting notes and
C possession of forged ID card. C
D 6. In his interview with the police, the defendant explained how D
he came by the man’s properties. He picked up a wallet with those items in
E E
it in Dundas Street about a month ago and thereafter was sort of forgetting
F all about it; he never used any of the identity documents or the bank cards. F
G G
7. Insofar as those tools were concerned, he initially lied about
H
their use but later changed to say he intended to use them to get dolls from H
the “Claw Machines” in the Games Centres for his girlfriend. The drugs,
I I
he said, were for his personal use.
J J
8. In mitigation, the court heard that the defendant worked in the
K construction industry earning about $9,000 a month on average. The K
defendant lives with his parents who are in their late 60’s, though not
L L
entirely dependent on him, the defendant bears responsibility of looking
M after their daily needs, and he also has his girlfriend (now his fiancee) and M
her 5-year-old son, whom the defendant treats as his own, to provide for.
N N
O
9. Counsel for the defendant, Miss Hung, submitted that despite O
his rather unimpressive record, the defendant is in fact kind in nature. He
P P
is a member of a non-profit organisation called “Hong Kong with Heart”
Q actively taking part in various volunteer work and social services, and Q
dedicating in caring for and assisting elderlies who live alone as well as
R R
those with disabilities. His enthusiasm and effort in serving the community,
S Miss Hung said, have been met with positive feedbacks and compliments. S
A supporting letter from the Hong Kong with Heart was handed up to the
T T
court.
U U
V V
-4-
A A
B B
10. Miss Hung said the strongest mitigating factor in the
C defendant’s favour is his frank admission to all the charges he faced, and C
went on to say that the defendant has expressed genuine remorse having
D D
deeply reflected upon his own behaviour. With the increasing
E responsibility as a son for his elderly parents, as well as a “father” for the E
young child of his fiancee, the defendant understands the importance for
F F
him to turn over a new leaf and to establish a law-abiding and respectable
G lifestyle. G
H 11. Miss Hung has taken the court through various authorities in H
respect of each of the offence. Regarding the man’s missing items found
I I
on the defendant, Miss Hung submitted it is no more than a case of “theft
J by finding” which, as the authorities suggested, would normally attract a J
term of 6 months’ imprisonment. The term is even lower for the offence of
K K
going equipped such as 2 months after plea. As for the drugs in question,
L one authority5, the facts of which are similar to the instant case (0.15g of L
cocaine) except that the appellant in that case was a person of clean record,
M M
confirmed the court adopting a starting point of 6 months.
N N
12. True to say there is no evidence to counter the defence’s “theft
O O
by finding” version of event, but the seriousness lies with his continued
P appropriation of those items; his stealing behaviour does not end but P
continues as long as he keeps those items. He has had them for at least a
Q Q
month for he said he picked them up a month ago, and if any of the items,
R in particular the ID card, were put to illegal use, the ensuing offences would R
be a serious one.
S S
T T
5
Ip Chun Hin [2019] HKDC 596
U U
V V
-5-
A A
B B
13. I find it difficult to believe that he carried those tools around
C solely for the purpose of stealing some dolls from a gaming machine. C
Looking at his record, he has one similar prior conviction of going
D D
equipped for stealing back in 2014 for which he was sent to DATC, and a
E number of thefts though none of which is to do with burglary. E
F 14. Let’s not forget the particulars of the offence of going quipped F
to which the defendant admitted allege that he had those tools for use in
G G
the course of or in connection with burglary. There is no denying that these
H tools are suitable implements for use in the course of break-ins. H
I I
15. Coming to the drug offence, though it is not of large quantity
J and we are talking about simple possession as opposed to trafficking, it still J
remains a serious offence.
K K
16. Here it would be worth mentioning the words of the Appellate
L L
Court in Mok Cho Tik 6 in dealing with the offence of possession of drugs:
M M
“……We remain of the view that the starting point for mere
N N
possession of a quantity of dangerous drugs which a bona fide
user would normally have in his possession should be in the
O range of 12 to 18 months, (and that is the range that has been O
adopted particularly for cases in the District and High Court), but
that is not the be all and end all of the appropriate starting point.
P It assumes cases in which a sentence of imprisonment rather than P
a rehabilitating measure is deemed necessary; and it does not
Q
seek to exclude magistrates from imposing lesser terms for very Q
small quantities where the circumstances so warrant. Obviously,
the quantity will be the main governing factor which will
R determine where the starting point will lie. If an offender is a R
persistent offender, he can expect a starting point to be higher
than it otherwise would be……”
S S
T T
6
CACC 165/2000
U U
V V
-6-
A A
B B
17. The defendant is clearly a repeat offender of drug offences (all
C together 6 convictions of possession and one conviction of trafficking). He C
has his first conviction of possession of drugs dating back to March 2009
D D
for which he was sent to DATC; 15 months later, he was sent to prison for
E 32 months for drug trafficking. In the ensuing decade, he has been in and E
out either of prison or DATC several times for drug-related offences. His
F F
last drug conviction was in 2018 and he was sent to prison for 16 months
G for possession of drugs. G
H H
18. Ever since his release from prison for the drug offence, Miss
I Hung emphasized once again the fact that the defendant has changed to a I
better man having truly reflected on his past misdeeds, and he was
J J
determined to be a responsible father and son. As for his commission of
K the present offences, Miss Hung put it down to the defendant being foolish. K
L 19. As far as mitigation is concerned, besides his guilty pleas, L
there isn’t any of substance.
M M
N 20. Based on what was said above, I take as the starting points 12 N
months for each of the charges 1, 2 and 3 and reduce it to 8 months each to
O O
reflect his timely pleas.
P P
21. Taking into account the totality principle, I order that charge
Q 1 be run consecutively to three months of each subsequent charge, the rest Q
concurrently; the total term is one of 14 months’ imprisonment.
R R
S 22. Lastly, for the offence of failing to produce proof of identity, S
though this is his second offence, a financial penalty in my view would still
T T
be sufficient to dispose of the matter. The defendant is fined $500 to be
U U
V V
-7-
A A
B B
paid on or before 31 December 2020 and in default, he has to serve a term
C of 3 days’ imprisonment consecutive to his existing term. C
D D
E E
( Sham )
F District Judge F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V