HKSAR v. Chan Ka Wai and Another

DCCC 51/2019

[2019] HKDC 1078

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 51 OF 2019

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REASONS FOR SENTENCE

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1.The defendants together face 14 joint charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (charges 1 to 14).

2.D2 alone faces one charge of forgery of documents, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374 (charge 15).

3.They pleaded guilty to all charges except for 1 and 6, which were ordered to be kept on file upon their convictions on the other charges.

Summary of facts

Charges 2 to 5, and 7 to 14: theft

4.On days unknown between 13 August and 6 September 2018 (both dates inclusive), D1 and D2 together on 12 different occasions stole from parked public buses a total of 5 fare collection boxes and total cash of around $15,500.

5.Buses of KMB and Long Win Bus Company were found to have been entered into and either the cash inside or the fare collection boxes themselves together with the cash inside had been removed from the buses.

6.CCTV installed in one of the buses captured D1 and D2 stealing the fare collection box from the bus at about 2:50am on 21 August 2018, while using a white Toyota private vehicle for transportation.

7.On another occasion, CCTV captured D1 and D2 boarding the bus at about 2:40am on 26 August 2018 and stole some cash from the fare collection box.

8.On a third occasion, CCTV on another bus captured D1 and D2 boarding the bus at about 3:04am on 4 September 2018, stealing some cash from the fare collection box and moving the fare collection box to the upper deck.

9.The defendants were arrested for theft of the cash and the boxes on 12 September 2018.

10.Under caution, D1 said that it was D2 who asked him to go to the buses to steal the fare collection boxes and he went to help him out.

11.Also under caution, D2 said that it was D1 who asked him to go to the bus terminus together to steal something and D2 agreed.

12.In their subsequent video recorded interviews, D1 claimed that he and D2 had put the 5 stolen fare collection boxes into a retired bus that he had previously bought, while D2 said he acted as a lookout when D1 took the fare boxes or cash.

13.D1 led the Police officers to the retired bus kept by him parked at Tsz Tin Tsuen Car Park in Tuen Mun.  The 5 fare collection boxes were found on the upper deck of the bus.

14.After D2’s arrest, he led Police officers to his vehicle which was parked in Tuen Mun.  Under caution, D2 admitted that it was the vehicle that he and D1 had used when removing the fare collection boxes from the buses.

Charge 15: forgery of documents

15.A pair of false number plates with registration “HW2791” were affixed on the front and back of D2’s vehicle.  Upon investigation, it was found that this registration did not match the one registered with the Transport Department, which was “UL4280”.  A copy of the vehicle registration document bearing this registration mark was found inside the vehicle.

16.D2 said he made the false number plates to put on his car in order to avoid his car being identified by his enemies, so that they cannot take revenge on him by damaging his car.

Previous convictions

D1

17.The defendant has no previous convictions.

18.At the time of the commission of the present offences, the defendant was the subject of a bind over order imposed on 26 January 2018, whereby he was bound over in the amount of $500 for a period of 12 months upon his undertaking not to commit or attempting to commit any criminal act involving the damaging of property.

19.Ms Ngai for the defendant very fairly conceded that the defendant was in breach of the bind over order and is willing to pay the $500.  I find that the eventual sentence that I will be imposing is sufficient punishment and will not order the defendant to pay this amount.

D2

20.D2 has multiple convictions which can be divided into 3 sets.

21.The first set is when the defendant was convicted on 23 March 2018 of driving while disqualified, using a motor vehicle on a road against third party risks, failing to comply with traffic signs and driving unlicensed vehicle.  For the first two offences, he was sentenced to a concurrent sentence of 6 weeks’ imprisonment.  For the other two offences, he was fined $500 each.

22.About 6 months later on 27 September 2018, he was again convicted of Driving while disqualified, using a motor vehicle on a road against third party risks and driving unlicensed vehicle.  He was sentenced to a total sentence of 2 months’ imprisonment for the 3 offences.

23.The third set of convictions are the most relevant for sentencing in the present case.

24.On 18 February 2018, the defendant took 2 buses and went for a joyride.  He was arrested 2 days later on 20 February and granted bail on the same day.  He was eventually charged with two charges of taking conveyance without authority; 3 charges of driving whilst disqualified; 3 charges of using a motor vehicle against third party risks; 2 charges of possession of forged driving/vehicle document; and one charge of criminal damage.

25.An overall sentence of 16 months’ imprisonment was imposed by the District Court on 8 March 2019, and the defendant is now still serving that sentence.

26.Two matters arise out of this 3^rd set of convictions: the defendant’s commission of the present offences whilst on bail as an aggravating factor; and how to apply the principle of totality to the overall sentence of the two cases.  These matters will be dealt with later on.

D1’s mitigation

27.D1 is 21 years old.  A Detention Centre report was ordered to be prepared on D1 to assist in sentencing.

28.Through a well-prepared skeleton submission in mitigation, the court learned the following.

29.D1 was born in Hong Kong.  He was educated up to Form 3 level.  Upon leaving school, he became an apprentice at Kowloon Motor Bus in September 2013. The company arranged for D1 to attend a 4-year vocational training course at the Vocational Training Council.  D1 did not complete the course and quit his job in April 2016 because he considered the salary of $6,000 per month too low.

30.In May 2016, the defendant became a furniture assembler at IKEA, earning $750 per day, working 6 days a week.  He remained so employed until his arrest in the present case in September 2018.

31.Although D1 does not suffer from serious illness, it is the finding of the Medical Officer of Pik Uk Correction Institution that the defendant is medically unfit for detention because of poor exercise tolerance.

32.D1 was born out of wedlock.  His father had left the family since D1’s birth and D1 was taken care of by his mother.

33.D1 had an uneventful childhood, with fair performance throughout his primary education.  His academic performance dropped after promotion to secondary school and had to repeat Form Two.  Without motivation in further studies, D1 dropped out of school after completing Form Three in 2013.

34.That was when he became an apprentice with KMB.  D1 developed a keen interest in his work and worked stably in the following three years.

35.In 2016, D1 spent about $40,000 to buy a retired bus.  The bus was parked in Tuen Mun and D1 would spent his leisure time there.

36.D1 came to befriend D2, who was also a bus fan, while they were both attending the VTC course.

37.D1 wanted to make more money and so he changed job and quit the VTC course.  He got involved in a criminal damage case where he had entered into an argument with a bus driver and damaging his phone.  This was the incident that caused him to be made the subject of the bind over order.

38.According to the Detention Centre report, during his present remand in Pik Uk, the defendant had disobeyed staff order and was punished by a 3 days’ Forfeiture of Remission, 7 days’ Separate Confinement and 7 days’ Loss of Privileges.

39.Nevertheless, D1 had shown true remorse during the interview, and he promised to think twice before acting in future.  He would like to resume working as a furniture assembler as he found the job interesting.  He is also considering attending evening courses in civil engineering.

40.The defendant’ mother showed great concern.  In her eyes, the defendant is a simple-minded person susceptible to peer influence.  She believes the defendant has learnt a bitter lesson in his long remand.  She will support the defendant in his rehabilitation and will keep a closer eye on him.

D2’s mitigation

41.D2 is 21 years old and born in Hong Kong.  He is single and lives with his parents, elder brother and two elder sisters in a public housing unit.  A background report was ordered to be prepared on D2 to assist in sentencing.

42.D2 was educated up to Form 3 level.  He was working two jobs prior to his arrest, one as an air-conditioner maintenance worker and one as a part-time car repair person, earning $20,000 and $7,000 respectively.  He contributed $10,000 per month to his parents.

43.Between 2014 and 2017 D2 worked at Citybus as a maintenance worker.

44.D2 is a passionate bus fan and is fascinated by buses and cars.  He had started an online car club, providing free car repair services for fellow club members, organizing activities and answering technical questions.  D2 also owned a retired bus that was bought in 2016.

45.It is D2’s case that he did take part in the thefts, but only at the invitation of D1 and as a lookout.

46.It is also his case that they agreed to take away the fare collection boxes, but they did not discuss about distribution of the stolen money or boxes, nor did D2 think about what he would be gaining from their enterprise.  He committed the present offences out of ignorance and stupidity.

47.According to D2, he came to know D1 when they were in form one and D2 had been to D1’s retired bus to play.

48.In relation to the forged registration plate charge, it is D2’s case that someone who was connected to his car club had thrown feces at his vehicle in around February 2018.  D2 put up the forged plates to avoid his enemies.  Since it was not to avoid detection by the Police for crimes, D2 thought it was not an illegal act.

Sentencing considerations

49.The maximum sentence for the offence of theft on conviction upon indictment is imprisonment for 10 years.

50.The maximum sentence for the offence of forgery of documents is that of a fine of $10,000 and imprisonment for 3 years.

51.In the case of HKSAR v Kwok Chun Ting [2018] HKCA 850; CACC 136/2018, the appellant pleaded guilty to 3 charges of conspiracy to commit burglary and was sentenced by the trial judge to a total of 2 years’ imprisonment.

52.Although the charges in that case are for conspiracy to commit burglary, the circumstances of the commission of the offences are similar to our present case.

53.There the appellant and his co-conspirators were all bus fans.  The appellant liked to research into different parts of the bus including the fare collection boxes, chairs, routes charts and diagrams.

54.The appellant, together with his friends, bought a retired double decker bus with money from his part time job, and they would play on the bus during their leisure time.  The appellant had also worked as a terminal assistant at Tuen Mun’s station terminus.

55.On the day of his 20^th birthday, the appellant and his co-conspirators brought along tools and cut open the door lock of the bus terminus in Tuen Mun and stole 3 route stickers and 19 route information sheets.

56.One of the co-conspirators stole a double decker bus, picked up the appellant and the others and drove to another bus terminus in Tuen Mun.  When there, the three of them pried open the terminus supervisor’s room door lock and stole 10 plastic route signs.

57.The three of them then drove to the terminus station, pried open the door lock of the station supervisor, entered the passcode to gain entry, and stole about 20 plastic route signs and 8 route information sheets.

58.In mitigation, the appellant told the court that he committed the offences out of greed and stupidity because the plastic route signs and diagrams could not be found in the market.

59.The Court of Appeal pointed out that although the appellant was charged with conspiracy to burgle, they were not typical burglary cases.  The appellant was a super bus fan and had entered the 3 premises to steal signs and diagrams that would appear to be without any significant market value.

60.The Court found that the appellant was foolish, but his crimes can also be viewed as pranks.  Viewed from this angle, the crimes may not be as serious as the usual burglary.

61.The Court also stressed that they cannot overlook the young age of the appellant and his clear conviction record, as well as the full cooperation he had shown towards the Police upon his arrest.

62.The Court did not condone the appellant’s naïve and stupid conduct, but in view of the background of the case, they were of the view that the appellant could be dealt with relatively leniently.

63.The Court allowed the appeal against sentence and adopted a starting point of 18 months’ imprisonment for each of the charges, discounted to 12 months’ imprisonment upon the appellant’s guilty plea.  All sentences were ordered to run concurrently, resulting in a final sentence of 12 months’ imprisonment after plea.

64.There are similarities in the reasons behind the commission of the offences in the two cases, being a passion for buses.  The offenders in both cases are relatively young bus fans who share a passion for buses with others.  Each had worked near buses and had bought a retired bus.  The things they stole were first and foremost for the completion of their buses and to add to their collection of bus related memorabilia.

65.There are, however, differences between the cases as well.

66.The appellant and his co-conspirators had cut and pried open locks and used passcode to enter premises and drove from one place to another to commit the burglaries.

67.The value of the stolen fare collection boxes in the defendants’ case are about three odd thousand dollars each, unlike the plastic route plates and diagrams which the Court of Appeal found to not have any face value.

68.A total of $15,500 cash was stolen by our defendants.

69.Most importantly, the defendants had committed a total of 12 thefts in 24 days. 

70.I must bear in mind that the appellant in Kwok Chun Ting was charged with conspiracy to commit burglary, which has a higher maximum sentence than theft at 14 years’ imprisonment.

71.There is also a guideline sentence of 30 months’ imprisonment for burling of non-domestic premises.  It is not clear how this might have influenced the Court of Appeal when they adopted the new starting point of 18 months’ imprisonment, if at all.

72.Having considered the circumstances of the commission of the thefts, I find that an appropriate starting point for each of the theft charges should be 12 months’ imprisonment.

73.I have to make clear that this starting point have not taken into account that multiple thefts had been committed.  This is to be dealt with when applying the principle of totality.

74.The defendants entered timely guilty pleas and is granted the full one-third discount, leading to a sentence of 8 months’ imprisonment for each charge.

75.As for charge 15 that D2 faces alone, I find that given the use of the vehicle in at least one of the thefts, an immediate custodial sentence is appropriate.

76.I will adopt a starting point of 3 months’ imprisonment, leading to a sentence of 2 months’ imprisonment after plea.

Totality

77.The defendants committed 12 thefts over a 24-day period.  Even if they each needed a fare collection box to complete their own retired bus, they only needed to steal twice.  Yet they chose to carry on and had stolen a total of 5 fare collection boxes and $15,500 cash.

78.In D2’s mitigation, he tried to lessen his culpability and point to D1 as the mastermind.  This is disputed by D1.

79.I find that even if D2 was taking part as a lookout as he claimed, I would have found that the two of them are equally culpable.  It must not be overlooked that D2 provided the use of his own vehicle in at least one of the thefts, suggesting that he may not be as innocent as he would like the court to believe.

80.The fact that the defendants liked and wanted something but could not get them in the market is not an excuse for them to just go and steal them. 

81.Both defendants had shown a total disregard for the bus companies’ property rights.  Not for once, not for twice, but for 12 times, and all within a relatively short period of time.  They may be relatively young, but at 20 years old, they would have been more than capable to tell right from wrong.  They must, therefore, suffer the consequences of their action.

82.In relation to D1, I was told in mitigation that his employer is ready to re-employ the defendant upon his release.  Prospect of employment is always an important factor to consider.

83.Taking a step back, and bearing in mind his clear record, I will order that the 8 months sentences for charges 2 and 3, and 3 months of the sentence for charge 4 be served consecutively, the balance and the sentences in all the remaining charges to be served concurrently.

84.A further 1 month discount is granted on the basis of D1’s confessions to all the thefts, which must have saved considerable time and effort on the part of the Police in their investigation.

85.The final sentence after plea for D1 is, therefore 18 months’ imprisonment.

86.In relation to D2, taking a step back, bearing in mind that the defendant had committed the present offences whilst on bail, I will order that the 8 months sentences in charges 2, 3, and 4 be served consecutively, the sentences in all the remaining charges to be served concurrently.

87.Just as with D1, a further 1 month discount is granted on the basis of D2’s confessions.

88.To be specific, had there not been the presence of the aggravating factor of committing the offences whilst on bail, I would have imposed the sentence of 19 months’ imprisonment on D2.

89.With the aggravating factor, the final sentence after plea for D2 is 23 months’ imprisonment.

Totality in relation to the sentence that D2 is currently serving

90.The offences in the 3^rd set of convictions were committed on 18 February 2018.  The earliest offence in the present case was committed on 13 August 2018.

91.The two sets of offences have no direct connection except for D2’s participation.  They cannot be regarded as arising out of the same transaction.

92.The 3^rd set of convictions were not the first time the defendant was sentenced to imprisonment.  He must have known full well, whilst he was on bail for those offences, that if he committed further offences, whether similar or not, he will likely be sentenced to a term of imprisonment.  Yet, he decided to proceed to steal on multiple occasions.

93.Taking a step back, I order that 20 months of the sentence in the present case be served consecutively to the sentence that the defendant is currently serving, the balance concurrently.

( Douglas TH Yau ) District Judge