HKSAR v. Li Ying Kit, Samson and Another

DCCC 366/2019

[2019] HKDC 1604

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 366 OF 2019

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Reasons for Sentence

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1.The defendants, Mr Li and Mr Chan, have pleaded guilty to a total of seven counts of shop theft. They are charged jointly in each charge and they accept, by their acceptance of the admitted facts, that they acted jointly in the commission of each of those charges they face.

2.The offences were committed on two separate dates:  the first four offences on 16th January 2019 and the final group of offences - that is the 5th, 6th and 7th charges - on 30th January 2019; the first group of offences committed in an A S Watson store in Wong Tai Sin and the second group of offences were committed on 30th January.

3.The precise details of the offences are not particularly relevant to sentence - I will not set them out; they have already been agreed - but they do show the defendants acting jointly in each charge.

4.The goods that were stolen were cans of luncheon meat, tubes of toothpaste, chocolate and cherries, and some hand warmers, totally valued at $8,718.10.

5.The frequency and value of the goods taken are out of the range of petty theft, but the goods stolen are not of high value and the method of stealing is not particularly sophisticated.

6.The aggravating factor from the commission of the offences is the fact that defendants acted together to commit the offences.

7.I turn to the defendants’ personal particulars.

8.The 1st defendant is a younger man.  He is aged 46.  He has, on his own admission, been a heroin addict, and that can be seen from his criminal record.  Presently single, living with his family.  His criminal record, he has some 27 previous charges, 17 of which are theft, and has in the past been sentenced to both Drug Addiction Treatment Centre and imprisonment.

9.The 2nd defendant is an older man of some 59 years old.  He has health problems relating to, I think what you call metabolic syndrome.  He had both hypertension and diabetes, probably aged related.  Lives with his wife and children.  He also has a criminal record.  That involves theft, including shoplifting, so 15 previous charges, nine of which are theft. Defendant has been sentenced to imprisonment for theft on previous occasions.

10.Both defendants have, within their criminal records, the aggravating factor of previous commission of similar offences, the basis being previous sentences of imprisonment have failed to deter the defendants to commit the offences of this nature.

11.As far as the approach to sentence is concerned, I shall firstly determine a correct starting point for sentence in relation to each of these offences for each defendant and then determine the overall totality of sentence and run the sentences either concurrently or consecutively to reflect that overall total.

12.Firstly, there is no tariff for these offences. Shop theft that we are dealing with here is a species of the offence of theft, but there is no guideline sentence.

13.An initial starting point for sentence, having regard to the nature of the offences and the value of the goods, I would take at 6 months’ imprisonment. 

14.I have identified two aggravating factors in relation to these offences.  Firstly, the offences were committed jointly and, secondly, both defendants have similar convictions.  That would raise the actual starting point for sentence on each charge against each defendant to one of 12 months’ imprisonment.

15.The defendants are each entitled to a one-third discount for each of those sentences.  That means that each defendant will be sentenced on each charge he faces to a sentence of 8 months’ imprisonment.

16.I must now determine what the correct overall total sentence should be. 

17.I have been helpfully referred to some previous authorities, particularly HKSAR v Nguyen Thu Ha, which is CACC 376/2017, and also an offence of DCCC 391/2018.  Both of these authorities deal with the theft of property of quite a higher value than we are dealing with today, but they do provide something of a marker for the court to determine what would be a just sentence for these particular defendants, having regard to the nature of their offences and the value of the property they have stolen.

18.Having regard to that, I consider that an overall correct total sentence for each defendant would be one of 18 months’ imprisonment.  I am going to achieve this by making the following order:

(1) the 1st to 4th charges, or the sentences on the first 1 through to 4, will be served concurrent to each other.

(2) the sentences on the 5th and 6th charges will be served concurrently to each other but consecutively to the 1 to 4; and

(3) on the 7th charge, 2 months will be served consecutively to 1 to 6, to Charges 1 to 6, and the balance concurrently, leading to a total of 18 months’ imprisonment for each defendant.