HKSAR v. Ko Chun Wai

DCCC 281/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 281 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to three charges of theft, contrary to section 9 of the Theft Ordinance, Chapter 210. Charge 2 to be left on court’s file, not to be proceeded with without the leave of the court.

Summary of Facts

2.Charge 1 : - On 10 November 2016, the defendant entered a car accessories shop in Cheung Sha Wan and took away PW2’s two mobile phones (valued at about 3,700 and 5,300) which was placed on the cashier’s desk.

3.Charge 3 : - On 18 November 2016, the defendant entered a restaurant in Yau Ma Tei and approached PW3 to make a reservation.  The defendant took a seat, pretending to wait for his friend to come.  PW3 carried on her work and did not pay attention to the defendant.  When PW3 noticed that the defendant had gone, she found her iPhone, which was placed on a table, was also gone.

4.Charge 4 : - On 5 December 2016, the defendant entered a bar in Wan Chai to make inquiry of holding a party.  PW4 called her boss and passed her phone to the defendant.  Ten minutes later, she realised that the defendant had gone with her smartphone.

5.CCTV in Charges 1, 3 and 4 could see the defendant took away the phones and left the shops.

Previous conviction

6.Since 1986 to 2003, the defendant had committed six counts of theft, one count of attempt obtaining property by deception, and eight counts of obtaining property by deception.  There were other offences of possession of dangerous drugs in 1986 and 1992, and one charge of possession of offensive weapon.

Mitigation

7.The defendant is now 49 years old.  He suffers from anxiety and depression since 2013.  He was divorced last year and since then, he started to take drugs again.  But this year, he has successfully gone through a rehabilitation programme with the Christian New Life Association.

8.There are two letters before me, one from Christian New Life Association and one from a church.  The content of both letters mainly said that the defendant suffered from a failing marriage, his mental health problem and back pains.  He therefore could not carry on with his works and had no income.  He is now very remorseful and regrets committing the present offences.

Sentence

9.All the three charges of theft involved stealing of iPhones.  As said in the judgment of Ng Ah Shan, CACC 358/2013, that the defendant, acting with premeditation and deliberately, had taken advantage of the victims’ negligence, would seize the moment when the victims were inattentive, stole their phones.  There were two phones in Charge 1.  The total value was $9,000. As to the smartphones in Charges 3 and 4, they were $7,000 each.  The defendant had no financial ability to pay compensation to the victims. 

10.It is a known fact that a smartphone has resale value.  The defendant committed the three offences within a short period of four weeks.  What he had done had caused a great deal of inconvenience to those victims.  Most people in Hong Kong carry smartphones for communication, for storing information, documents, photos and the like.

11.His counsel, in mitigation, accepts that 15 months is the appropriate starting point for these offences.  Although the defendant had a number of criminal records, I notice his last conviction was in 2003.  He has managed to stay out of trouble for 13 years.  For this reason, I will not enhance the starting point.

12.For all the three charges, I adopt a starting point of 15 months, reduced to 10 months because of his guilty plea.  Four months in each charge of Charges 3 and 4 be run consecutively to Charge 1.

Order

13.Charge 1 : - 10 months.

Charge 3 : - 10 months; 4 months be run consecutively to Charge 1.

Charge 4 : - 10 months; 4 months be run consecutively to Charge 1.

It arrives at a total sentence of 18 months.