HKSAR v. Tse Koon Kit and Another

DCCC 1113/2017

[2018] HKDC 1576

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1113 OF 2017

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Reasons for Sentence

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Pleas

1.D1 pleads guilty to the following charges:

(1) Theft with another person of property from a car at a carpark on or about 3^rd July 2017 (1st Charge);

(2) Burglary with another person at a car park on 23^rd July 2017 (3rd Charge);

(3) Theft of property from a car at a carpark on an unknown date between 22^nd and 24^th July 2017 (4th Charge);

(4) Theft of property from a car at a park on an unknown date between 23^rd and 25^th July 2017 (6th Charge).

2.D2 pleads guilty to 1^st Charge.

Facts for 1st Charge

3.CHU was the owner of a white Toyota Alphard station wagon 7-seater [ UK3604 ] with anti-theft alarm system installed.  He regularly parked the 7-seater in a car park at No. 1112 Canton Road, Mong Kok, Kowloon, Hong Kong. 

4.At around 3:00 p.m. on 2^nd July 2017, he parked the 7-seater at the said car park and locked the car.  After checking the car, he left the car park.  At around 12:55 p.m. on 3^rd July 2017, the car park security office notified him that the front and rear registration number plates of the 7-seater were stolen.  The matter was reported to the Police. 

5.CCTV of the car park captured, at 11:27 p.m. on 2^nd July 2017, D1 and D2 entering the car park in a silver Lexus sedan [ UL9316 ].  D2 drove the car.

6.After reversing the car into a space on 2nd Floor of the car park, the two of them got off the vehicle and walked around.  D1 approached CHU’s car and removed its plates.  Around four minutes later, D1 and D2 left the car park with their Lexus sedan.

7.In his video-recorded interview, D2 stated that a person known as “Ah Keung” was indebted to him in the sum of HK$ 10,000 and repaid him with the vehicle – UL9316.  He later sold the vehicle for HK$ 10,000 to another person known as “Ah Pong”. 

8.At the material time, D1 and D2 stole 2 registration number plates, the property belonging to CHU. 

Facts for 3rd Charge

9.LAW was a clubhouse assistant of Trinity Towers, No. 339 Lai Chi Kok Road, Sham Shui Po, Kowloon, Hong Kong.  She was on duty in the afternoon on 23^rd July 2017.

10.At around 4:50 p.m. on 23^rd July 2017, the building security office notified her that the alarm went off as the Ground Floor emergency exit door was open.  Upon checking, she found that the said emergency exit door was open and a crowbar was found sitting next to the door.  There were prize marks on the wooden door of the car park security control room nearby as well.  The matter was reported to the Police.

11.CCTV captured that at 4:05 p.m. on 23^rd July 2017, a black 7-seater bearing licence plate JJ712 entered the car park connected to the security control room.  At 4:40 p.m., D1 and another person unknown headed to the security control room.  The unknown person stood outside as a lookout whilst D1 ransacked the security control room.  At 4:45 p.m., they left the security control room and exited the building through the emergency exit door.

12.At the material time, D1 together with another person unknown, entered the car park security control room as trespassers and attempted to steal therein.

Facts for 4th Charge

13.LAU was the owner of a Tesla Model S sedan [ SL2218 ] with anti-theft alarm system and a car camera installed.  The Tesla sedan was parked in the basement of the same car park, situated at Trinity Towers, No. 339 Lai Chi Kok Road, Sham Shui Po, Kowloon, Hong Kong. 

14.On 22^nd July 2017, at around 12:00 p.m., he parked the car at hourly parking space No. 51 in the car park.  He left the car after locking and checking the car.  On 24^th July 2017, at around 9:00 a.m., he returned to take the car and found that its rear nearside window was smashed with signs of ransacking.  The car camera near the driver’s seat and an Apple iPad Pro originally placed on the rear passenger seat were missing.  The matter was reported to the Police.

15.Two palm prints of D1 were recovered from the exterior surface of the rear offside window and front nearside window of the car respectively.

16.CCTV captured D1 appearing at the car park at 4:48 a.m. on 24^th July 2017 and left on a black Toyota 7-seater bearing licence plate JJ712.

17.At the material time, D1 stole 1 car camera and 1 iPad Pro, the property belonging to LAU.

Facts for 6th Charge

18.CHOW was the owner of a Mitsubishi LANCER sedan [ EC3238 ] with anti-theft alarm system and car camera installed.  He rented a parking space at a car park situated at 2nd Floor, Winland Parking, Nos. 2-20 Palm Street, Mong Kok, Kowloon, Hong Kong. 

19.On 23^rd July 2017, at around 4:00 p.m., he parked the car at the No. 7 parking space of the said car park.  He locked the car properly and turned on its anti-theft alarm system before leaving the car park. 

20.On 25^th July 2017, at around 6:30 p.m., he returned to take the car and found that its rear nearside window was smashed with a car camera, a helmet, a set of mahjong and an Octopus card missing.  The matter was reported to the Police. 

21.D1’s left thumbprint was recovered from the rear view mirror inside the cabin of the car.

22.At the material time, D1 stole 1 car camera, 1 helmet, 1 set of mahjong and 1 Octopus card, the property belonging to CHOW.

Mitigation

23.D1 is 43 years of age.  When not in custody, he lives with his mother.  He had 32 records in 23 court cases.  A lot of them related to theft.  In 2009, his 17^th court case, he was sentenced for going equipped for stealing to 6 months.  In 2010, his 18^th court case, he was sentenced for theft to 2 years 2 months.  In 2012, his 19^th court case, he was sentenced for theft to 2 months 2 weeks.  In 2013, his 20^th court case, he was sentenced to 28 months.  In 2013 and 2015, his 21^st and 22^nd court cases, he was sentenced to 4 months and 2 months respectively for dangerous driving and assaulting a police officer.  In 2015, his 23^rd and most recent court case, he was sentenced to 2 years 8 months for handling stolen goods and to 2 years 8 months for theft respectively, ie a total of 3 years’ overall sentence on a partly concurrent basis. 

24.About 5 weeks after his release from prison, he began to commit the 1^st offence, and then the other offences herein. 

25.Ms. Chow contends that there was a break in his theft-related records but I do not quite share this view.  His records show that it had not taken him long after release from prison for a theft or related offence to commit another theft or related offence each time. 

26.He has joined church activities during the present remand.  His mother and his girlfriend have remained supportive.

27.D2 is 43 years of age.  He had 25 records in 11 court cases.  A lot of them related to theft.  Four months after his release from prison in his last court case for Conspiracy for theft and Burglary, he committed the 1^st offence herein.  Before that case, he was sentenced to 32 months for robbery and 2 months for theft, among other offences. 

28.Early this month he injured his leg twice and has now to walk with a crutch until recovery. 

29.D2 claims that D1 had asked him to drive D1 to the scene to steal vehicle number plates.  He had no gain.    

Sentencing considerations

30.In A.G. v. Lui Kam-chi [1993] 1 HKC 215, the Court of Appeal states that the proper starting point for non-residential premises shall be 2 years 6 months’ imprisonment for a first offender of full age.

Sentencing D1 and D2

31.The 1^st offence was committed by 2 men who used a car to arrive and leave the scene.  I take a starting point of 5 months on the 1^st Charge.  D1 and D2 are each recidivist for theft.  I take a starting point of 6 months.  After a one-third discount for the plea of guilty, the sentence is 4 months for D1 and D2 alike.   

32.The 3^rd offence was committed by 2 men using a car to arrive and leave the scene.  On the one hand, the usual starting point will see an increase of 3 months due to the joint enterprise and another 6 months due to D1’s recidivism.  On the other hand, it will be reduced by 3 months due to no property loss.  From a starting point of 3 years, I give a one-third discount for the plea of guilty.  The sentence is 2 years on the 3^rd Charge.

33.The car owners suffered loss of property as well as window repair bill.  I take 18 months as the starting point on the 4^th and the 6^th Charges alike.  I add 3 months to it due to D1’s recidivism.  From a starting point of 21 months.  I give a one-third discount for the plea of guilty.  The sentence is 14 months each. 

34.After totality adjustment, the sentence for D1 is 2 years 7 months computed as follows:

(1) 3^rd Charge, 2 years to be served;

(2) 4^th Charge, 3 months consecutive to other charges;

(3) 6^th Charge, 3 months consecutive to other charges;

(4) 1^st Charge, 1 month consecutive to other charges.