HKSAR v. De Souza Michael Anthony

DCCC 140/2022

[2022] HKDC 748

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 140 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me this morning to one count of theft.  The particulars of offence are as follows:-

2.On 1 December 2021 at the Rear Lane No 28, Kam Fong Street, Mongkok, Kowloon, together with another person unknown stole one motorcycle and one helmet, property belonging to Lee Chi Ming.

Facts

3.Based on the Prosecution’s Summary of Facts admitted by the defendant, on 1 December 2021 at around 5 minutes past midnight, Mr Lee Chi Ming, who was the registered owner of the motorcycle SG875, parked his motorcycle at the rear lane near No 28 Kam Fong Street, Mongkok.  He picked up his car keys and left without securing the front tyre of the motorcycle.  At around 10 am the same day, Mr Lee returned to the said rear lane, no doubt with a view to get his motorcycle back, but discovered, much to his surprise, that his motorcycle was not there. He duly reported the matter to the police.

4.Upon reviewing the CCTV footages, the police discovered that at around 5:33 am on 1 December 2021, an unknown male pushed Mr Lee’s motorcycle into the intersection between the horizontal rear lane of Kam Fong Street and the vertical rear lane.  He then tampered with the mortise cylinder of the motorcycle.  Later on, the defendant appeared on his bike and also tampered with the motorcycle along with the unknown male.  CCTV footages further revealed that at around 9 am in the same morning, the unknown male had placed the motorcycle at the rear lane of No 10 Soy Street, Mongkok and covered it with a motorcycle cover.  He then left the scene with a red helmet which was subsequently handed to the defendant who walked off towards Kam Lam Street.  Mr Lee’s motorcycle was later recovered on 3 December 2021 at the rear lane of No 10 Soy Street.  Upon inspection, Mr Lee found that the ignition keyhole to the motorcycle, and also the keyhole to the storage compartment, were both prised. A helmet valued at around HK$500, which was originally placed inside the storage compartment, was also missing.

5.At 7:40 pm on 5 December 2021, a police officer, PC24575, noticed that the appearance of the defendant, who was apparently before him at the police station he is working at following an arrest for an unrelated matter, resembled that of the perpetrator of the theft of Mr Lee’s motorcycle.  Upon enquiries and under caution, the defendant admitted that an unknown man called Ah Kin stole Mr Lee’s motorcycle and that he was asked to keep the helmet.  The defendant was then arrested.

6.In a cautioned interview which followed, the defendant admitted the following matters:-

(a)  At around 4 - 5 am on 1 December 2021, while he was taking a rest under the footbridge between Kam Fong Street and Holiday Inn, Ah Kin came over and asked him if he would come along to steal a motorcycle. Defendant agreed and later that morning the two of them spotted Mr Lee’s motorcycle which was not locked.

(b)  Ah Kin pushed Mr Lee’s motorcycle into the rear lane of Kam Fong Street to check if the motorcycle’s engine could be ignited and the defendant observed Ah Kin doing so as he was not familiar with motorcycles. As the two of them failed to ignite the engine of the motorcycle, Ah Kin prised over the storage compartment of the motorcycle and took out the helmet.

(c)  Later, as they still could not start the engine of the motorcycle Ah Kin then pushed it into the rear lane of another street. He opened the shell of the motorcycle to allow Ah Kin to deal with the fuse and the defendant acted as a lookout while that was being done.

(d)  The defendant then lent his own bicycle to Ah Kin whilst Ah Kin passed to him the helmet.

Personal background of the defendant

7.The defendant was born on 29 July 1965 in Hong Kong and he is now 56.  In fact he will be 57 years of age in days.  He has a total of 69 convictions which include more than 20 thefts and attempted thefts, some robbery, a few possession of dangerous drugs or apparatus related to the use of dangerous drugs, and a couple of convictions also for copyright or infringing copies offences.

8.I was told by his counsel, Mr Hingorani, this morning that he received secondary education at KGV. 

9.I have also been told by his counsel that he married young although I have not been told what happened to that marriage or, for that matter, what happened to him during his younger days.

10.It was said by Mr Hingorani that the defendant committed mistakes in life that led him to his current unenviable state.  All that I can say in that regard is that, instead of making something out of what might have been regarded as a comparatively privileged background, the defendant apparently headed down a very different road.

11.The defendant has been, according to Mr Hingorani, unemployed since 2015, save for unstable work as a hawker selling DVDs; and mostly he is reliant on comprehensive social security assistance.

12.It is further said on his behalf that the circumstances of the defendant are a reminder as to how fortunate most of us are.  This is very probably true but when looking at the defendant’s criminal records, I cannot help feeling that his drug addiction may have a key part to play in his downfall.

Sentencing principles

13.There are no guidelines for offences of thefts of vehicles.  Each case obviously would depend on its own facts.  But it has been said time and again that deterrent sentences are required.  As was said by Wong J in the case of HKSAR v Cheng Chun Ming CACC356/2000:-

“Cases involving the theft or handling of motorcars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime”.

14.In the Cheng case the Court of Appeal upheld a starting point of a 3-year’s term of imprisonment for the handling of one stolen vehicle which was described as a casual and opportunistic act. 

15.In the case of HKSAR v Fan Chi Wai CACC343/2015, leave to appeal against sentence, a term of 2½ years, was refused for handling a stolen motor vehicle, worth around HK$40,000, which had been modified so that no ignition key was required.

16.In the very recent case of HKSAR v Leung Kwong Kit DCCC326/2021 Deputy District Judge Heung adopted a similar term, 2½ years, as a starting point for a defendant who appeared before her in a case on facts which are not entirely dissimilar to the present one.  In that case the defendant also had a multitude of other offences which we are not concerned with here.

Sentencing

17.In the present case I have not been told by the prosecution about the value of the motorcycle. But I think I can safely assume that it is an item of some value.

18.Taking into account the facts of the present case, the defendant’s background, the fact that he had close to 70 previous convictions, 20 of which were for theft offences, and bearing in mind of course the sentencing principles which I have gone into earlier, I am of the view that in the present case a term of 27 months’ imprisonment would be a proper starting point.

19.As the defendant indicated his guilty plea at the earliest opportunity he will of course get the full one-third discount.  That apart I cannot see any other ground which would have led the court to further reduce the term.  The defendant is accordingly sentenced to a term of 18 months’ imprisonment.