HKSAR v. Cheung Chuen Sang
Read the full judgment text of DCCC 828/2022 on BabelCite. This District Court judgment was delivered on 19 June 2023.
1. Mr Cheung pleaded guilty before me to the following charges on a Charge Sheet.
Cites 4 cases
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DCCC 828/2022 [2023] HKDC 856 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 828 OF 2022 ________________________
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________________________ REASONS FOR SENTENCE ________________________ 1.Mr Cheung pleaded guilty before me to the following charges on a Charge Sheet. 2.Charge 1 is Theft, contrary to section 9 of the Theft Ordinance, Cap 210. Particulars are that he, on 11 July 2020, at San Fung Avenue, Sheung Shui, New Territories, in Hong Kong, stole one wallet, one Hong Kong Identity Card, one driving licence, two birth certificates, one Octopus card, one ATM card and cash of $140 Hong Kong currency, property belonging to Lam Chi Wai. 3.Charge 2 is Using an Identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177. Particulars are that he, on the same day, at Hang Seng Bank Limited, No 53 San Fung Avenue, Sheung Shui, New Territories, in Hong Kong, without lawful authority or reasonable excuse, used one Hong Kong Identity Card which related to another person, namely Lam Chi Wai. 4.Charge 3 is Possession of thing with intent to destroy or damage property, contrary to section 62(a) of the Crimes Ordinance, Cap 200. Particulars are that he, on 25 December 2021, outside Yiu Ming House, Wah Ming Estate, Fanling, New Territories, in Hong Kong, had in his custody or under his control one cup with lid containing red paint, intending without lawful excuse to use the said thing or cause or permit another to use the said thing to destroy or damage property belonging to some other person. 5.Charge 4 is Theft, contrary to section 9 of the Theft Ordinance, Cap 210. Particulars are that he, on 19 April 2022, at a flat in No 20 San Fat Street, Sheung Shui, New Territories, in Hong Kong, stole two iPhones with two SIM cards, property belonging to X. 6.Charge 5 is also Theft. Particulars are that he, on 24 April 2022, at a flat in Kwong Yam Building, No 84 Kwong Fuk Road, Tai Po, New Territories, in Hong Kong, stole one iPhone, one mobile phone and one external charger, property belonging to Y. Facts admitted by Mr Cheung Charges 1 and 2 7.On 11 July 2020, at about 3 am, shortly after alighting from a minibus at San Fung Avenue in Sheung Shui, Lam (PW1) found his wallet missing. The wallet contained the other items listed in the Particulars of Offence. 8.Shortly before 10 am the same day, at the Hang Seng Bank in Sam Fung Avenue, Mr Cheung presented PW1’s lost HKID card and ATM card and requested that the password of the ATM card be changed. When checking Mr Cheung’s identity, bank officer PW2 noticed that the photograph on the HKID card did not match with Mr Cheung’s appearance. Feeling something was amiss, Mr Cheung made an excuse and left, leaving behind the two items. Case was reported. 9.On 19 November 2021, police arrested Mr Cheung. In an interview conducted on the next day, Mr Cheung admitted under caution that he picked up a wallet at San Fung Avenue at about 3 am on 11 July 2020; that inside the wallet, he found cash of $100 odd, PW1’s HKID card and ATM card; that he pocketed them; on his way home, he threw away the wallet with rest of contents into a rubbish bin. 10.Mr Cheung further admitted that in the same morning, he went to Hang Seng Bank at San Fung Avenue and he attempted to change the password of PW1’s ATM card by the use of PW1’s HKID card intending to withdraw cash. Charge 3 11.On 25 December 2021, at 4:15 pm, Mr Cheung was acting furtively outside Yiu Ming House, Fanling, with his left hand holding a plastic bag. A patrolling police constable PW7 stopped and searched Mr Cheung. Inside the said plastic bag, PW7 found a paper cup with lid containing red paint (about 500 ml) and a piece of paper with the name “Czzz Fzzz” (“CF”), words demanding for repayment of debt, and “Room zzz4, Yiu Ming House, Wah Ming Estate” (details redacted). 12.PW7 arrested Mr Cheung on the same day. Under caution, Mr Cheung said that CF owed him $18,000 but CF not only failed to repay the debt but also scolded him; that he wanted to splash CF with red paint to make CF repay the debt. 13.In a subsequent cautioned interview on the same day, Mr Cheung stated the following:-
Charge 4 14.Female X was working as a sex worker in a flat in San Fat Street, Sheung Shui. She also lived there. On 19 April 2022, at about 6:35 pm, Mr Cheung visited the flat and received sex service from X. X then went to take a shower, leaving Mr Cheung alone inside the flat. When she finished, Mr Cheung was no longer there. She found her iPhone 13 pro max (valued at $13,000) and iPhone 7 (valued at $10,000) missing from the top of a table. Report was made. Charge 5 15.Female Y was working as a sex worker in a flat in Kwong Fuk Road, Tai Po. On 24 April 2022, at about 9:30 pm, Mr Cheung visited the flat and received sex service from Y. Y then went to take a shower, leaving Mr Cheung alone inside the flat. When she finished, Mr Cheung was no longer there. She found her iPhone 8 (valued at $10,000) and Xiaomi phone (valued at $1,000) and an external charger (valued at $300) missing. Report was made. 16.On 25 April 2022, police arrested Mr Cheung yet again, this time at his home. Under caution, Mr Cheung admitted committing the offences out of greed. He also said that all 4 phones were sold to unknown street vendors for a total of $3,000 shortly after the thefts; that only $150 was left of the proceeds. 17.On the person of Mr Cheung, police found and seized cash of $150, being the said remaining proceeds. 18.Mr Cheung now admits the external charger belonging to Y was also stolen by him. Criminal record 19.Mr Cheung has 10 previous convictions 4 of which belong to the category of dishonesty-related offence. The last member of that category (a theft) was dealt with in December of 2016 by way of a prison term of 8 months. Antecedents 20.Mr Cheung is aged 49 (46 to almost 48 at the time of the offences), educated to primary school level. He was working on and off. Mitigation 21.Mr Terry Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Cheung. The following is a summary of the mitigation submissions. 22.Mr Cheung was educated up to Primary 6. He was living with his mother in a public housing estate. Before he was remanded in jail custody, he worked as a casual delivery worker for a shop, on and off, for $10,000 to $18,000 a month, depending on the number of working days. 23.The whole period of time covering the 5 offences in this case lasted about 1 year and 9 months. While Mr Cheung was on police bail for Charges 1 and 2, he committed Charge 3; while he was on police bail for Charges 1, 2 and 3, he committed Charges 4 and 5. 24.For theft offence (subject of Charges 1, 4 and 5), there is no sentencing tariff. 25.Under Charge 1, the defence case is he saw the unattended wallet on the road and picked it up. He took from it the HKID card, the ATM card and money. It is submitted that this is a case of theft by finding which would attract a sentence on the low side of the scale, ranging from a few weeks to a few months’ imprisonment, depending on circumstances. 26.Under Charge 2, it is submitted that by using someone else’s HKID card to attempt to commit a crime could have normally attracted a starting point of 24 months where there are aggravating factors such as if Mr Cheung was successful in changing the password of the ATM card, he could have withdrawn money (Secretary for Justice v Tsang Wai Ling, CAAR 1/2019, paras 35, 36 & 39). Upon invitation by the court, Mr Wong suggested a starting point of not more than 20 months even with the aggravating factor of the purpose for which the ID card was used (namely to commit another crime) added in. 27.The court is urged to consider making the sentences on Charges 1 and 2 run concurrently with each other. 28.Under Charge 3, it is submitted that the starting point should not be higher than that for the actual act of criminal damage which may stand at 12 months’ imprisonment. The defence case is that Mr Cheung was chasing his own debtor to repay money; this should be contrasted with a case where a group of debt collectors are hired to harass the debtor. The court is urged to adopt a lower starting point (HKSAR v Cheng Fai Kin & Anor, DCCC 187/2013, at paras 20 and 24). 29.Under Charges 4 and 5, it is acknowledged that sex workers have to be protected due to their vulnerability from bullying. Mr Wong compared these offences to acts of pickpocketing which are considered to be very serious offences with sentencing guidelines of 12-15 months’ imprisonment for a first offender who committed such an offence in a public place. Mr Wong urged the court not to impose a starting point much higher than those sentences (HKSAR v Ng Ah Shan, CACC 358/2015, at paras 21-27; HKSAR v Gregory Jamie McKay, HCMA 645/2014, at paras 5 and 12). 30.Mr Wong acknowledged that the timely guilty pleas may be the only mitigating factor but urged the court to bear in mind totality when imposing the total term of imprisonment for the 5 offences. 31.When asked if Charges 4 and 5 were more akin to burglary than pickpocketing, Mr Wong submitted that there was no unlawful entry under the facts of either charge; that Mr Cheung entered the premises by invitation. Mr Wong further submitted that Mr Cheung was simply an opportunistic thief who stole whatever he saw as valuables being left unattended. Sentence 32.I will say at the outset that since Mr Cheung’s past similar records are aged, I will not regard them as constituting an aggravating factor. 33.With respect, the case handed up by the prosecution in relation to Charge 2 here, namely R v Chan Wun Sang, HCMA 6/1992, does not assist me. 34.Charge 1 Theft, I regard it as a case of theft by finding. I take a starting point of 6 months. 35.Charge 2 Using another’s ID card, I note Mr Cheung has not been charged with any attempted theft offence here. I take a starting point of 18 months. In adopting that starting point, I have considered the case of HKSAR v Li Chang Li, HCMA 935A/2004, but do not strictly follow it. Part of the reason is that the present case is not an immigration case and the considerations pertaining to the illegal workers’ problem discussed in Li Chang Li should not apply. 36.Charge 3 Possession with intent to damage property, I note the non-binding DCCC case referred to by Mr Wong. I adopt a starting point of 9 months. The offence was committed whilst Mr Cheung was on bail. I therefore increase the starting point to one of 10 months. 37.Charges 4 and 5 Theft from sex workers, these cases are akin though not identical to burglary of at least non-domestic premises (there was evidence that X actually lived in the subject premises). Bearing in mind that (a) sex workers belong to the category of a vulnerable sector of society who require extra protection from the courts and (b) the aggravating factor that the property stolen were mobile phones which nowadays customarily contain large amounts of personal and private data (some of which has sentimental value), I adopt a starting point of 21 months each. Given the rather severe starting point, I will not further increase the starting point for the second occasion of the same type of theft ie Charge 5. However, both offences were committed whilst Mr Cheung was on bail. I therefore increase the starting points to 24 months. 38.Mr Cheung pleaded guilty in good time earning for himself the customary 1/3 discount in sentence. There are no other mitigating circumstances to justify any further reduction. 39.All offences were separate from one another and ought, subject only to totality, to be dealt with by wholly consecutive sentences. 40.I will however consider the totality principle when imposing the final sentence. (Mr Cheung, please stand) 41.For Charge 1, the sentence is 4 months’ imprisonment. 42.For Charge 2, the sentence is 12 months’ imprisonment. 43.For Charge 3, the sentence is 6 months and 20 days’ imprisonment. 44.For Charge 4, the sentence is 16 months’ imprisonment. 45.For Charge 5, the sentence is 16 months’ imprisonment. 46.I order that 2 months of the sentence on Charge 1 be served consecutively to the sentence on Charge 2, resulting in an interim sentence of 14 months’ imprisonment. This is the Group A sentence. 47.I order that 12 months of the sentence on Charge 5 be served consecutively to the sentence on Charge 4, resulting in an interim sentence of 28 months’ imprisonment. This is the Group B sentence. 48.I order that 5 months of the sentence on Charge 3, and 19 months of the Group B sentence be served consecutively to one another, and the resulting sentence there be served consecutively to the Group A sentence. The final total sentence that Mr Cheung has to serve for all of the charges is therefore 38 months’ imprisonment.
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