HKSAR v. Cheng Kwok Kui and Another

DCCC 460/2020

[2021] HKDC 440

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 460 OF 2020

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REASONS FOR SENTENCE

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1.Both the 4^th defendant and the 5^th defendant pleaded guilty to a single charge of Conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap 210 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.The particulars of offence aver that the 4^th defendant and the 5^th defendant together with the 1^st defendant and the 2^nd defendant, on or about 11 December 2019, in Hong Kong, conspired together and with another person unknown to steal one set of car cameras, one pair of Bluetooth earphones, one car park entrance card, one discount card and one car key, property belongings to Chu Siu-lun.

3.In gist, this is a case of theft from vehicle.  According to the summary of facts which was agreed by both defendants, the victim Mr Chu parked his car (hereinafter called “the Car”) on the 1/F, of Hoi Fu Shopping Centre Car Park (hereinafter called “the Car Park”) on 9 December 2019.

4.When Mr Chu returned to the Car Park on 10 December 2019, he found the right rear glass window of the Car broken, but nothing was missing from the Car.

5.On 11 December 2019, the 4^th defendant, the 5^th defendant together with 3 other persons including the 1^st and the 2^nd defendant went to the Car Park and walked towards the direction of the Car.  Later, the other two of them walked to the other parts of the Car Park leaving the other three of them including the 4^th defendant and the 5^th defendant remained in the vicinity of the Car.

6.Those 3 of them remained in the vicinity of the Car out of which two of them reached into the Car and stole the property of the Car, and the stolen items cost around HK$3,500 in total.

7.Under caution, the 4^th defendant and the 5^th defendant admitted that they were asked by the male who smashed the car window to see if there were any valuables inside the Car.

The 4^th defendant’s personal background and mitigation put forward

8.The 4^th defendant is aged 32 and single.  Prior to his remand, he was a decoration worker earning around HK$12,000 per month.  He was living with his 60-year-old father, 60-year-old mother and 30-year-old younger brother under the same roof.

9.I was told that his father is terminally ill for Prostate Cancer and is now receiving medical treatments in Queen Elizabeth Hospital, and his father used to be accompanied by the 4^th defendant to receive those treatments.

10.The 4^th defendant has 10 previous criminal convictions, and is currently serving a 24-month imprisonment in relation to the case of DCCC  284 and 483/2020 (Burglary & others).

11.I was told that he was sentenced on 8 January 2021 and the expected date of his release from prison is on 3 May 2021.

12.In mitigation, Mr Leung emphasized the fact that the 4^th defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

13.He submitted that the 4^th defendant had been underworked for over a year prior to this incident.  He was responsible for the household expenses and rentals for the entire family as his parents were both retired and his younger brother could not make any contributions to the family due to low income.

14.Mr Leung further submitted that right before the offence, the 4^th defendant was having a chat with the 5^th defendant, during which the 1^st defendant joined and asked the 4^th defendant whether he would assist in being a lookout while they “took” something from the Car in the Car Park, and that the 1^st defendant said he would give HK$1,000 to the 4^th defendant if the 4^th defendant assisted.

15.Driven by monetary incentive, the 4^th defendant complied and followed the 1^st defendant’s instructions and on board a vehicle driven by the 1^st defendant to Hoi Fu Shopping Centre Car Park.

16.Mr Leung pointed out that as reflected in the summary of facts, the 4^th defendant was a simple-minded person, he did not have the premeditation to commit the offence beforehand, and he just joined other co-defendants to the Car Park and committed the offence thereat as a lookout.

17.He submitted that the 4^th defendant committed the offence simply out of stupidity and for financial reasons in order to financially support himself and his family.  He was remorseful now.

18.Mr Leung further emphasized that the 4^th defendant never actually took part in the actual damage of, theft or snatching of property inside the Car and no damage was done by the 4^th defendant, and no one was injured.  The window of the Car had been damaged by others prior to his arrival.

19.Mr Leung further stressed that no tools or weapons were ever carried or used by the 4^th defendant for perpetration of the offence, and he was also not benefited from the property stolen by other co-defendants at the Car Park or afterwards and not rewarded at all as he got arrested thereafter.

20.Mr Leung also asked me to take into account of the totality principle when sentencing the 4^th defendant in the present offence, as he is now serving sentence of the other offence.

The 5^th defendant’s personal background and mitigation put forward

21.The 5^th defendant is aged 35 and completed Form 5.  His father is aged 75 and is retired, while his mother is aged 65 and is still working as a clerk.  His elder sister is aged 37 and working as a bank clerk.

22.The 5^th defendant has a girlfriend who has given birth to a baby daughter on 7 August 2020.  His girlfriend is currently a full-time housewife taking care of their child.

23.I was told that the 5^th defendant was earning about HK$20,000 a month or more prior to the social events as an air-conditioner technician.  He made a monthly contribution of about HK$4,000 to his parents before he was detained.

24.He has 17 previous criminal convictions, and is currently serving a 24-month imprisonment in relation to the case of DCCC 284 and 483/2020 (Burglary & others), and he also had a similar offence of theft in 2006.

25.In mitigation, Mr Woon submitted that after the 5^th defendant was released from prison in June 2019, the defendant managed to secure a job as an air-conditioning technician.  However, in October 2019 as a result of the social events becoming more severe, he was laid off and became unemployed.  When he was invited to steal from a vehicle in the Car Park by friends on the day of the offence, he foolishly agreed to do in the hope of gaining some financial reward.

26.Mr Woon emphasized the fact that the 5^th defendant pleaded guilty and admitted under caution when he was interviewed by the police.  Mr Woon urged the court to accept that the 5^th defendant has expressed genuine remorse by doing so.

27.Mr Woon further submitted that the 5^th defendant did not receive any financial gain at all from the commission of the offence.  The front camera that was taken from the Car was found in a car driven by another co-arrested person as it was kept by that person.

28.The 5^th defendant has no idea as to what happened to the rear camera and that as to the Bluetooth earphones, car park entrance card and petrol discount card, these were not valuable items and therefore no financial gains were made from these items, and he was not the master mind in this offence.

29.Mr Woon pointed out that at the time of the commission of this offence, the 5^th defendant has only one previous conviction for dishonesty in 2006 and he asked the court not to place any weight on his previous convictions.

30.Mr Woon further submitted that the present offence was committed on or about 11 December 2019.  The 5^th defendant was arrested on 17 December 2019.  Before he was arrested on 17 December 2019, he had committed an offence of burglary on 15 December 2019 and committed another burglary offence on 28 December 2019.

31.In relation to these two burglary offences he was arrested on 3 January 2020, and he pleaded guilty and was sentenced to a total term of 32 months imprisonment on 8 January 2021 in District Court.

32.Mr Woon pointed out that as the 5^th defendant committed this offence on or about 11 December 2019 and the other two burglary offences similarly in the same month of December 2019, if all three charges were heard at the same time by the same court, the court would have considered the totality principle when sentencing.

33.He therefore invites the court to consider imposing a sentence which would run partly concurrent to the present case to that of the two burglary cases.

Sentencing considerations

34.Regarding the starting point of sentence on the offence, there are no sentencing guideline.  The Court of Appeal has not dealt with setting guideline for theft from vehicles.  However, the High Court on appeal has said that 12 months could be a proper starting point.

35.Here are some comparable cases in ascending gravity:-

HKSAR v Woo Ming-on HCMA 1028/1997

“(a)  The appellant stole a mobile phone from inside a light goods vehicle. It was accepted that he did so on the spur of the moment. The Court of First Instance affirmed a starting point of 12 months.”

HKSAR v Cheung Wing Sun [2008] 1 HKCLRT 180:-

“(b)  Shortly after 4 a.m., the appellant was pushing open the door of a car to get off when spotted by a police officer. He immediately closed the door to stay inside. The police officer questioned him and under caution he admitted having stolen $40 from inside the car. On appeal to the Court of First Instance, the starting point was reduced from 18 months to 15 months.”

HKSAR v Lui Man Kit HCMA 498/2006:-

“(c)  The appellant stole the digital camera, the audio equipment, the two front seats and the gear lever from a car (Charge 1). On 2 other dates, he stole the vital components (whose particulars were not given in the Reasons for Judgment) of the same car (Charges 2 and 3). On still another date, he and his accomplice were stealing from the same car items including its rear wheels when spotted and arrested by the police (Charge 4). His sentences were aggravated for being committed whilst on bail for an offence. He was sentenced to 12 months on pleas on guilty. The Court of First Instance upheld his sentences on appeal.”

The Queen v Wong Kwong-yin HCMA 264/1988:-

“(d) The appellant committed 6 thefts from vehicles on two consecutive nights in Tai Po area. The stolen property consisted of clocks, radios and tools. On appeal to the High Court, the overall starting point was reduced to 18 months.”

36.In the present case, valuable property, such as the car cameras were stolen.  Car key was also stolen which will cause inconvenient to Mr Chu.  Mr Chu had to spend money also on new window despite the fact that it was not smashed by the 4^th defendant and the 5^th defendant, they just carried out their ploys as agreed.

37.Nevertheless, the fact that the 4^th defendant and the 5^th defendant acting in concert with the other 3 persons to commit the present offence, this would make the offence more serious, and I consider this factor as an aggravating factor when sentencing.

38.Taking into account of what had been submitted on behalf of each defendant, I consider that a starting point of 12 months’ imprisonment is appropriate in the present case.

39.One-third discount is given to each of the defendant as each of them indicated their guilty plea at the earliest opportunity.  The sentence is therefore reduced to 8 months’ imprisonment to each defendant.

40.Both the 4^th defendant and the 5^th defendant are currently serving another prison term for another case.  Considering the principle of totality, I made an order that 6 months’ imprisonment to be run consecutively to the sentence currently served by the 4^th defendant and the 5^th defendant under DCCC 284 & 483 of 2020 after totality adjustment.