HKSAR v. Cheung Ka Shing

DCCC 1161/2018

[2019] HKDC 1001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1161 OF 2018

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REASONS FOR SENTENCE

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1.The defendant faces a total of 30 charges. He pleaded guilty to 20 of them, being 10 theft and 10 making off without payment charges.

2.The rest of the charges, charges 15 to 18 and 21 to 26 are ordered to be kept on file, not to be proceeded with without the leave of court.

Summary of facts

3.Each of the 10 theft charges is coupled with a making off without payment charge.  The common mode of operation of the defendant in all the offences is that, over a period of about 6 months from February to August 2018, he would hire a taxi and then trick the drivers into lending him money or their mobile phone, sometimes both, and then leaving with the money and phone upon arriving at a certain destination without returning.  Since the defendant did not pay for any of the taxi fares, he was charged with making off without payment of the fares as well as the theft of the money or phones or both.

4.In the subsequent cautioned interview, the defendant claimed that he had spent all of the stolen money, and had either sold or lost the stolen mobile phones.

Charges 1 and 2: theft and making off without payment

5.The defendant hired a taxi on 28 February 2018.  Upon arrival at the destination in Yau Ma Tei, the defendant asked to borrow the driver’s mobile phone.  The driver lent the phone to the defendant who then got out of the taxi with the phone and without paying the fare of $460 and did not return.

6.The defendant sold the phone for $1,000 and had spent the money. He never intended to pay the $460 taxi fare.

Charges 3 and 4: theft and making off without payment

7.10 days later on 10 March 2018, the defendant hired another taxi.  This time, the defendant claimed that he had forgotten to bring money and asked to borrow $1,700 from the driver so that he can repay his friend.  The driver lent the cash to the defendant who handed over the money to someone in Mongkok.  The defendant then asked to be driven to Yuen Long.  Upon arrival in Yuen Long, the defendant said he was going upstairs to get the money to repay the driver.  The defendant did not come back to repay the $1,700, nor the $550 taxi fare.

8.The defendant never intended to pay the taxi fare.  He had spent the $1,700 that he had stolen.

Charges 5 and 6: theft and making off without payment

9.19 days later on 29 March 2018, the defendant hired a taxi for alleged goods delivery.  This time, he told the driver he did not have enough money to complete the delivery and asked to borrow $700, which he said will be repaid when they returned to Yuen Long.  The defendant never repaid that money.  He told the driver he was going to get the money after they arrived in Yuen Long and walked away without paying the fare of about $300.

10.The defendant said he left the shoulder bag in that particular taxi in order to lead the driver into believing that he was coming back.  The defendant had spent the $700.

Charges 7 and 8: theft and making off without payment

11.11 days later on 9 April 2018, the defendant did something similar.  He borrowed $1,700 and a mobile phone from the driver and got away with the money and without paying the $250 taxi fare.  The defendant said under caution that he had lost the phone and had spent the stolen money.

Charges 9 and 10: theft and making off without payment

12.12 days later on 23 April 2018, the defendant used the goods delivery excuse again and borrowed $4,000 from the taxi driver, as well as borrowed his mobile phone valued at about $7,000.  The defendant left two fake contact numbers and got off the taxi with the phone and the money without paying the $180 fare.  The defendant said he had lost the phone and spent the stolen money.

Charges 11 and 12: theft and making off without payment

13.13 days later on 6 May 2018, the defendant tricked the taxi driver into give him $1,000 in cash, saying that he will give him back two $500 notes.  When the taxi got to Yau Ma Tei, the defendant suddenly said he had to get out and told the driver to wait around for him.  The defendant got off the taxi and ran away with the money and without paying the $50 fare.  The defendant said he had spent the stolen money.

Charges 13 and 14: theft and making off without payment

14.3 days later on 9 May 2018, the defendant called for a taxi in Yau Ma Tei.  The defendant falsely claimed that he needed some $20 notes, offering to leave his mobile phone and contact number for the driver as security.  The driver handed over cash of $1,800.  When the taxi got to Sham Shui Po, the defendant got off and told the driver to wait for him.  The defendant left with the cash and without paying the $105 taxi fare and did not return.  The phone was found to be a toy phone.  The defendant said he had spent the stolen money.

Charges 19 and 20: theft and making off without payment

15.2 months and 2 weeks later on 22 July 2018, the defendant asked to change two $1,000 banknotes for $1,900.  The driver handed over $1,900 to the defendant, who got off the taxi in Mongkok with the money and did not return or pay the $55 fare.  The defendant said he had spent the stolen money.

Charges 27 and 28: theft and making off without payment

16.11 days later on 2 August 2018, the defendant used the same method to steal $1,900 from the taxi driver.  This time the defendant snatched the money from the driver and ran into a villa in the Mongkok area, without paying the $60 fare.  The driver gave chase but was not able to catch up with the defendant.

17.CCTV cameras installed in the villa caught the defendant entering and exiting the building.  The defendant was identified by the driver in an identification parade held on 4 September 2018.

Charges 29 and 30: theft and making off without payment

18.17 days after the last incident, on 19 August 2018, the defendant hired a taxi and tricked the driver into handing over $1,900 thinking that the defendant was going to hand over four $500 notes in exchange.  The defendant got out of the taxi in Yau Ma Tei with the money, telling the driver to wait for him to come back.  The defendant never did and he also did not pay the $27.40 taxi fare.

19.In the above mentioned identification parade held on 4 September 2018, the driver identified the defendant as the person who stole from him.

Previous convictions

20.The defendant was first convicted of a criminal offence in 2008, when he was 16 years old.  He was sentenced to the Rehabilitation Centre for one charge of trafficking in dangerous drugs.

21.His second set of convictions is dated 17 February 2017 when he was 25.  He was convicted of 3 charges of obtaining property by deception and 3 charges of making off without payment.  He received an overall sentence of 8 weeks’ imprisonment.

22.The sentences did not seem to have achieved a deterrent effect and the defendant was convicted on 16 October 2018 of obtaining property by deception and making off without payment, together with one charge of assault occasioning actual bodily harm and possession of dangerous drugs.  He was sentenced to an overall sentence of 16 weeks’ imprisonment.

Mitigation

23.The defendant is 27 and single.  He was raised by his paternal grandparents, who are both in their 80s and retired, and never had much contact with his parents.  His father passed away in 2018.

24.The defendant was educated up to Form 6 level and was working as a part-time waiter at the time of the offences, earning about $8,000 to $9,000 per month.

25.The court was told that the defendant committed the offences because his earnings was not enough for his living expenditures.  He wanted some quick money.

26.The defendant’s mother wrote in mitigation, expressing regret over how the defendant was raised.  Their relationship has been improved and she has been visiting the defendant daily in detention.  She asks for leniency.

27.The defendant’s social worker also wrote in mitigation, believing that the defendant’s commission of the offences was due to his failed upbringing.

Sentence

28.The maximum sentence for theft on conviction upon indictment is that of 10 years’ imprisonment, whereas for the offence of making off without payment is that of 3 years’ imprisonment.

29.Each of the theft offences that the defendant committed in the present case can be said to be on a small scale in terms of the value of property stolen.

30.There is, however, planning and premeditation on the defendant’s part, targeting taxi drivers who may not be able to be fast enough to give chase when the defendant started to run, while also worrying about leaving their taxi behind when giving chase.  The 10 sets of thefts were committed over a 6 month period.  The defendant could very well have gone on had he not been caught.

31.Given the circumstances of the thefts, I will adopt a starting point of 6 months’ imprisonment for each of the 10 theft charges.

32.For each of the 10 making off without payment charges, I will adopt a starting point of 3 months’ imprisonment.

Aggravating factors

33.The defendant committed the present offences whilst still on bail for the earlier set of offences for which he was sentenced on 16 October 2018.  This is a serious aggravating factor and for this, I will increase each of his sentences by 2 months’ imprisonment.

34.The defendant has previous similar convictions in 2017 and 2018 and he is a persistent offender.  For this aggravating factor, I will increase each of his sentences by 1 month’s imprisonment.

35.The increased starting points are then 9 months’ imprisonment for each of the theft charges and 6 months’ imprisonment for each of the making off without payment charges.

36.The defendant is granted the full one-third discount for his timely pleas of guilty, leading to sentences of 6 and 4 months’ imprisonment for each of the 10 theft charges and each of the 10 making off without payment charges respectively.

Totality

37.Applying the principle of totality, I will first of all order that the making off without payment sentences to be served wholly concurrently with their corresponding theft charges since they arose out of the same transactions.  The resulting sentence for each set of theft and making off without payment charge is 6 months’ imprisonment after plea.

38.There are 10 sets of theft and making off without payment sentences to be dealt with applying the totality principle. 6 months’ imprisonment each would mean a total of 5 years’ imprisonment if all the sentences are to be served consecutively.  This would be excessive and have a crushing effect on the defendant.

39.Taking a step back, I will order that the sentences in charges 1 to 8 (4 sets of 6 months each) and 3 months of the sentences in charges 9 and 10 be served wholly consecutively, leading to a sentence of 27 months’ imprisonment.  The balance and the rest of the sentences in the remaining charges to be served concurrently.

40.The final total sentence for all the charges is, therefore, 27 months’ imprisonment after plea.