HKSAR v. Wong Kwok Leung and Another

DCCC 1120/2022

[2023] HKDC 1540

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1120 OF 2022

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REASONS FOR SENTENCE

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1.The 1^st defendant WONG Kwok-leung (D1)  pleaded guilty before me to a total of 6 Charges. They can be divided into 2 groups:

Group 1

Charges 1, 5 & 6 related to him stealing a private car registration number SU7226 and his subsequent driving of this vehicle when he was disqualified from driving and without Third Party Insurance.

Group 2

Charges 2 & 3 related to Burglary and Charge 4 Attempted Burglary, all involving non-domestic premises.

2.The 2^nd defendant TSANG Chi-ming Makise (D2)  pleaded guilty to Charge 3, the only Charge he is facing and jointly charged with D1.

3.Particulars of these offences can be seen in the Charge Sheet. I will not repeat them here.

Facts of case

4.The Amended Summary of Facts admitted by both Ds can be summarized as follows:

Charges 1, 5 & 6

5.On 30 April 2021 a 2-year disqualification order for driving all classes of vehicle was imposed on D1 by the Court.

6.Private Car registration number SU7226 was parked unattended at an unnamed road in Pok Fu Lam. On a day between 31 July and 6 August 2022, D1 opened the door of the car, removed the lock cylinder with a screwdriver and drove it away. He later installed a new lock cylinder in the car.

7.At around 13:20 hours on 15 August 2022 the police spotted SU7226 entering the carpark of Horae Plaza, To Kwa Wan. D1 was seen alighting from the car. He was arrested and under caution, he admitted to have stolen the car and had driven it between 6 and 15 August 2022. He was fully aware that he had no driving license and Third Party Insurance at the time. The original lock cylinder of SU7226 and some paraphernalia used in the burglaries the subject matters of Charges 2 to 4 were found in the car.

Charges 2, 3, & 4

8.Charge 2 related to a company called Smart Profit situated on the 8/F of a commercial building in Kwun Tong.

9.At around 06:39 hours on 4 August 2022, D1, together with 2 other persons, prized open the door of Smart Profit, sprayed paint on the security CCTV camera and took away 47 boxes of phone accessories worth HK$56,730 and 2 pairs of Nike sports shoes worth HK$2,400.  The stolen properties were loaded onto a private car bearing a false registration number plate. D1 admitted that the goods were sold in Fanling. He later received HK$10,000 as remuneration.

10.Charge 3 related to a technology company called Rightlink, situated on the 9/F of a commercial building in Kowloon Bay.

11.Both Ds admitted that on 7 August 2022 they together with another person, broke the glass door of the company and stole 24 boxes of Micro SD Cards worth around HK$720,041.4 therein. The stolen goods were taken away by a private car bearing a false registration number plate. According to D1, he and D2 went to Rightlink to scout the area and check whether the office was empty at around 19:00 hours the day before and he received HK$30,000 as remuneration for this offence.

12.Charge 4 related to a company called Threeman located on the  25/F of a commercial building in Kwun Tong. In the small hours of 14 August 2022 D1, together 3 other persons, went to the premises of Threeman, sprayed paint on the security CCTV camera installed outside and smashed the glass door of the premises with intend to steal inside. The burglary alarm of the premises sounded, D1 and the party fled immediately without stealing anything. D1 admitted using the stolen vehicle SU7226 in the course of committing this offence.

Defendant’s Backgrounds and Mitigation

D1

13.D1 is 39 years old, born in Hong Kong on 7 April 1984. He is single and resided with his girlfriend in To Kwa Wan. He received education up to Form 2 level. He was unemployed at the time of his arrest.

14.D1 committed his first criminal offence, which was “Trafficking in DD”, in November 2008 and was sentenced to 5 years 4 months imprisonment. Since then, he had accumulated another 22 convictions on 6 Court appearances. There were at least 9 offences similar to those in the first group of offences, and 1 of Burglary in December 2016. On 30 April 2021 he was convicted of several offences all similar to the Group 1 offences. He was sentenced to a term of imprisonment and disqualified from driving for 2 years. He was discharged from prison on 19 March 2022, about 5 months prior to the commission of the present offences.

15.D1 first obtained a driving licence in June 2018. Up to August 2019 he had accumulated a total of 7 traffic related convictions, all of which had been reflected in his criminal convictions mentioned above.

16.Ms. MA, representing D1, submitted in mitigation that between March and May 2022 D1 work as a part-time ceiling repair worker, with a decent monthly income of HK$45,000. He became unemployed starting from June until his arrest in August 2022. Apart from his girlfriend, he also resided with his mother who relied on D1’s HK$10,000 monthly subsidy.

17.Ms. MA submitted that D1 could be described as a car maniac, as he was madly obsessed with cars, which explained why he had so many convictions similar to the Group 1 offences. So far as Charge 1 is concerned, she cited HKSAR v Yu Chi-chiu[1] and submitted that there was no evidence to suggest that the theft of SU7226 was well-planned or in association with other culprits. She submitted that 3-years imprisonment, as laid down in Yu Chi-chiu, should be adopted as the starting point.

18.For Charges 5 & 6, she cited 2 District Court cases[2], and urged the Court to take a more lenient view of the terms of imprisonment to be imposed and consider concurrent sentences for the Group 1 offences.

19.So far as Disqualification Order is concerned, Ms. MA urged the Court to impose the minimum period, which is no less than 3 years for second or subsequent convictions, as stipulated in section 44(2)(b)  of Cap.374.

20.For the Burglary offences, Ms. MA cited HKSAR v SIM Ka-wing[3], and urged the Court to adopt the conventional 2½ years imprisonment for non-domestic premises as the starting point.

21.Ms. MA submitted that D1 committed these offences due to his financial difficulties at the time. He is highly remorseful now. During the current remand period D1 had obtained a worker licence for scaffolding work. He also enrolled himself to a course organized by a Christian organization called the Hong Kong Christian Kun Sun Association Limited, which “provided him with better insight from not getting himself into too extreme a judgement in daily life”. D1 is confident that he is able to lead a law-abiding life after prison. A letter written by D1’s girlfriend was also submitted, showing her support for D1. Ms. MA urged the Court to accord the full 1/3 discount for his timely guilty plea.

D2

22.D2 is 42 years old, born in Hong Kong on 25 January 1981. He is married and resided with his wife and a son who is now 6 years old in Tseung Kwan O. After completing Form 5 education in Hong Kong, he went to New Zealand for a year to study grade 12, and returned to Hong Kong afterwards. He worked in the car rental business with a monthly income of about HK$30,000.

23.D2 has a total of 10 criminal convictions, most were dangerous drug related or crimes involving violence. His last conviction was in July 2016 for “Fighting in a Public Place” and was fined for that offence.

24.In mitigation, Ms. KO submitted on behalf of D2 that he suffered from a heart disease as a result of which he underwent a major surgery in 2016 and requires regular medical follow-ups. His is also on blood thinning medication.

25.Ms. KO submitted that since his last conviction in 2016, D2 managed to turn a new leaf and started a car rental business in 2017. In the same year his son was born. He managed to stay away from trouble until the current offence. He is very remorseful. He understands that he has caused immense pain and sorrow to his family, especially his wife, who needs psychiatric support during this difficult time.

26.Ms. KO submitted that during the current remand period, D2 had reflected on his wrong-doing. He has completed a course offered by “Grace International Seminary” which mainly focused on Bible and Life studies. A letter written by D2, expressing his deep remorse, was submitted in support.

27.I was informed by the prosecution that D2 was arrested by the police on 11 March 2020 for an alleged offence of “Taking Conveyance Without Authorities”. He was granted police bail 2 days later but failed to report back since then. He committed Charge 3 while he was a wanted person. The matter is still pending, awaiting instructions from the Department of Justice.

Sentence

D1

28.For Group 1 offences, there can be little doubt that D1 is a recidivist. He was released from prison after serving a term of imprisonment for the same type of offences just 5 months prior to the commission of Charges 1, 5 & 6. In HKSAR v Cheung Kwok Yip, Peter[4], a case involving indecent assault on young children, the CA stated that previous convictions of an identical or similar nature may constitute a gravely aggravating factor, this to take into account the fact of persistence, the failure of previous sentences to deter, and the court’s duty to protect the public. Also, insofar as imprisonment is capable of providing a deterrence, it must be accorded high priority as must the court’s duty to protect the public.  In HKSAR v Lau Tsz Ho[5], in the context of Trafficking in Dangerous Drugs, the CA stated:

“18. It is well established that the fact that a defendant is a “persistent re-offender” is an aggravating factor that entitles the court to adjust upward the appropriate starting point of his sentence…. The reason for this is because the applicant has shown by his conduct a need for greater personal deterrence and a need for the court to give greater prominence in its sentence to protection of the community from the offenders’ criminal activity. It has nothing to do with again punishing the offender for the past criminal acts…..”

29.Bearing in mind the comments by the CA in Yu Chi Chiu[6], I adopt 3 years 3 months as the starting point for Charge 1, 6 months for Charge 5 and 9 months for Charge 6. The sentences are reduced by 1/3 for his timely guilty plea. There is no other mitigating factor.

30.Charges 5 & 6 were committed together but separate and distinct from Charge 1. The sentences for Charges 5 & 6 should therefore be run concurrently but consecutive to Charge 1.

31.For the Group 2 offences, it is well established that the starting point for Burglary involving non-domestic premises is 2 years and 6 months imprisonment[7].

32.D1 was well prepared when he committed the 3 Burglary offences. At least 3 culprits were involved in each offence. They sprayed the security CCTV cameras and using vehicles with false number plates. I am satisfied that D1 was a professional burglar targeting commercial premises in the commission of these offences.

33.In HKSAR v Cheng Wai Kai[8], the CA stated:

“15. The starting point can be adjusted upwards if there are aggravating circumstances such as; (1)  the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature, and (6)  the offender commits multiple offences.

16. If the offences were committed in different premises against different victims on different dates, consecutive sentences should be imposed….”

34.At least 4 of the above 6 factors, viz., (2)  , (4)  to (6), were engaged in the present case warranting an upward adjustment to the starting point. For Charge 3, the value of the stolen property was over HK$720,000, which could be regarded as substantial, so that factor (3)  was also engaged. None of the stolen properties in Charges 2 & 3 were recovered.

35.I adopt 3 years as the starting point for Charges 2 & 4, and 3 years 3 months for Charge 3. The offences were committed in different premises against different victims on different dates. According to the guidelines provided by the CA, consecutive sentences should be imposed. For the timely guilty plea, I will reduce the sentence by 1/3. There is no other mitigating factor warranting further reduction in sentence.

36.The 2 groups of offences had no bearing with each other. In theory the sentences should run consecutively. However, I have to take the totality principle into account. In my view, in the context of the present case, a 6 years starting point is appropriate to reflect the overall criminality of D1. It is to be achieved as follows:

Charge 1: 2 years 2 months

Charge 2: 2 years, concurrent to Charge 3

Charge 3: 2 years 2 months, 1 year 10 months consecutive to Charge 1

Charge 4: 2 years, concurrent to Charge 3

Charge 5: 4 months, concurrent to Charge 1

Charge 6: 6 months, concurrent to Charge 1

Total sentence: 4 years.

37.For Charge 5, I order that D1 be disqualified from driving all classes of vehicle for 2 years, the disqualification period is to start to run from the date of his conviction. For Charge 6, he is disqualified from driving all classes of vehicle for 4 years. The disqualification period is to start to run after he has finished serving his terms of imprisonment. He must attend and complete a driving improvement course at his own cost within 3 months prior to the conclusion of the disqualification period before he could be allowed to apply for a driving licence.

D2

38.D2 committed Charge 3 while he was a wanted person for failing to report whilst on police bail for a matter relating to “Taking Conveyance Without Authorities”. Since that matter is still at the investigation stage, I will not take it into account in assessing the sentence.

39.D2’s position relating to Charge 3 is the same as D1 as discussed above, except that he did not have previous similar conviction as did D1. I adopt 3 years as the starting point, reduce it by 1/3 for his timely guilty plea. There is no other mitigating factor warranting further reduction.

40.For Charge 3, D2 is sentenced to 2 years imprisonment.