HKSAR v. Tsang Wing Yam

DCCC 248/2023

[2023] HKDC 1714

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 248 OF 2023

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to seven charges of theft, one charge of forgery and six related driving offences which occurred over three days.

2.The defendant stole a computer, three mobile phones, two cars, personal property including a Rolex and vehicle license plates.  At the time when the defendant did that he was disqualified from driving so when stealing the cars or driving them the defendant committed allied offences of driving while disqualified and driving without insurance.

3.The relevant facts can be summarised as follows.  On the 1^st Charge on 17 October 2022 in the late afternoon the defendant stole a Samsung tablet computer valued at $1,500 by walking to the reception of a restaurant in Grand Century Place and taking it away.

4.As far as the 3^rd and 4^th Charges are concerned, this concerns the driving of a taxi which had been left parked on 18 October 2022.  The defendant admits driving that taxi, which was found the next day on the 19^th and at the time we know the defendant had been disqualified from driving from 11 October 2021 and remained disqualified on the date of his driving.  So the defendant drove that taxi whilst disqualified and also consequently without insurance.

5.The 5^th Charge involves a theft which occurred on 18 October. The defendant entered a shop which is known as ‘New 1 Way’ in Temple Street, a shop selling phones.  The defendant asked to see a Samsung phone.  He was given a Samsung Flip which is retail valued at about $4,880 and the defendant ran off with that phone.

6.The Charges 6, 7 and 8 relate to the theft of a grey Mercedes Benz which had a value of around about $50,000 I am told.  The car had been left by PW4 with a painting company in Bute Street in Mong Kok.  On 19^th October, the defendant had driven away and stolen the car.  This car was recovered on 22 October 2022.  The defendant had driven the vehicle in the interim and done so without obviously insurance and whilst disqualified.

7.Charge 9 relates to the theft of two mobile phones.  PW5 had posted a gold Samsung Z Fold 4 phone on e-sale site called Carousell.  The defendant had negotiated with the seller and agreed also to buy an iPhone 14 Pro at the same time which is valued here at around $8,500.  There had been an agreement to meet for the sale and purchase of these two phones.  The parties met on 19 October 2022 in Yau Ma Tei.  The phones were handed over to the defendant who simply drove away with them without paying.

8.The final charge which is the Charges 10 to 15 basically relate to the theft of a Toyota Vellfire car.  This had been left on 20 October 2022 in a car park in Mong Kok, a Wilson car park in Mong Kok and the defendant had been able to steal the car out of the car park by masquerading as the owner of the vehicle.  There were various items inside the car which were also stolen at the same time.  There was a Rolex valued at $90,000 and red packets for $5,000 and sports gear valued at about $5,000.

9.In order to try and prevent the vehicle being detected  the defendant had in fact had then gone on to steal front and rear vehicle license plates from another Toyota Vellfire parked in Sham Shui Po and had put them on the original Toyota Vellfire that had been stolen.  Fortunately the defendant was intercepted by the police on 21 October 2022.  The defendant made admissions at that time, took the police to the Toyota Vellfire that had been stolen previously from which the defendant had switched the number plates taken from the other car.  But besides the items missing, there was also some $40,000-worth of damage caused to the Toyota Vellfire car.

10.The defendant was interviewed and made admissions to these offences. The defendant has made substantial admissions and has indicated a plea of guilty from an early stage.

11.As far as the defendant’s antecedents are concerned, he is now aged some 33 years old, he is married and he has children.  His family has come to court today.  He is most recently discharged from prison on 11 October 2021.

12.He does have previous convictions, none of which substantive convictions except for an offence of driving without insurance, not similar to today’s offences.  The defendant’s previous convictions relate to possession of dangerous drugs, assault, fighting and claiming to be a member of a triad society.  He has been sentenced both to prison and to Drug Addiction Treatment Centre.  He has previous motoring convictions relating to driving unlicensed vehicles, driving with excess alcohol and driving without any insurance for which he has been disqualified.  The defendant has been ordered to complete a driving improvement course, it appears he has not done that.

13.The defendant’s mitigation involves his early plea of guilty and his admissions to these offences at an early stage.  That clearly entitles the defendant to a full one-third discount from any sentence of imprisonment imposed.  The defence prays in aid that that the offences themselves occurred within a short compass, some three days.  The vehicles, whatever their value, were all recovered.  There was no accompanying violence in any of the offences, whether theft offences or the theft of vehicle offences.  Although there was some damage to one of the Toyota Vellfire there was no evidence it was involved in an accident.

14.The court is asked to consider the overall totality of sentence in this case.  It is said that the value of items taken in this case is low for a District Court case, although the defence original estimate of the value of items stolen did not include the ascribed values of the cars and also the defendant was not aware of the value of the Rolex, which is valued at $90,000, it also did not take into account the damage to the vehicle which is rated at $40,000 but of course any damage to a vehicle involves quite considerable sums of money these days.

15.I turn to the sentencing considerations to this case.  The most serious offences to which the defendant has pleaded guilty of course are theft of the vehicles.  This is considered a serious offence.

16.I particularly refer to the case of HKSAR v Cheng Chun Ming that is CACC 356/2000.  It was said in that case that cases involving the theft or handling of motor vehicles are very serious offences and call for immediate sentence of imprisonment.  The sentence starting point of 3 years’ imprisonment was not considered to be wrong or manifestly excessive in such cases.  A number of cases can be seen where that starting point has been adopted.

17.As far as the other offences of theft are concerned there is no tariff or guideline sentence for these kind of theft offences.  Charge 1 can be described as a walk-in theft.  It would appear that the reception area was open to the public which enabled the prosecution to treat this as a theft offence but as it did involve walking into a building that was occupied it is a more serious form of theft.  I can say this stage all the theft offences warrant an immediate sentence of imprisonment and some of them of a more substantial nature.

18.The forgery offence, of course there is no, again, tariff for that offence but it is an offence where a sentence of imprisonment is appropriate.

19.The driving offences which are driving whilst disqualified and failure to have compulsory third party insurance.  All carry compulsory periods of disqualification and also sentence of imprisonment can be imposed.  In respect of both offences a minimum of 12 months’ disqualification is appropriate.  In respect of the failure to have the third party insurance that could be between 12 months to 3 years’ disqualification.

20.I have determined to sentence these offences as follows:

- Charge 1 I will take the starting point of 18 months’ imprisonment and reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.

- On Charges 3 and 4, I will take a starting point of 3 months’ imprisonment reduced to 2 months’ imprisonment for the plea of guilty. Charge 3 will be sentence of 18 months’ disqualification while on the Charge 4 the sentence is 24 months’ disqualification.

- On Charge 5, I take a starting point of 12 months’ imprisonment reduced to 8 months’ imprisonment for the defendant’s plea of guilty.

- Charge 6, a starting point at 36 months’ imprisonment reduced to 24 months’ imprisonment for the defendant’s plea of guilty.

- On Charges 7 and 8, again take a starting point of 3 months’ imprisonment on each, reduced to 2 months’ imprisonment for the plea of guilty. Charge 7 will also carry a disqualification of 18 months. Charge 8, a disqualification from driving for 24 months.

- On Charge 9, I take a starting point of 15 months’ imprisonment, reduced to 10 months’ imprisonment for the defendant’s plea of guilty.

- On Charge 10, I take a starting point of 36 months’ imprisonment reduced to 24 months’ imprisonment for the defendant’s plea of guilty.

- Charge 11, the starting point is 6 months’ imprisonment reduced to 4 months’ imprisonment for pleading guilty.

- Charges 12 and 13, sentences of 3 months’ imprisonment reduced to 2 months’ imprisonment. On Charge 12, a disqualification of 18 months and on Charge 13 a disqualification of 24 months.

- Charges 14 and 15, I will take a starting point of 12 months’ imprisonment on each, reduced to 8 months’ imprisonment for plea of guilty.

21.The offences were committed on different occasions so the court must consider to what extent these sentences can be served consecutively and concurrently.  The court must achieve a correct overall totality for this series of offences.  In determining that overall total I do bear in mind the offences cover a short period of time, some three days, and that the vehicles were recovered soon after being stolen.  However, this is a serious episode of multiple criminal offences involving many thefts, items of some value, and the taking of cars.

22.I have determined that an overall starting point of 5 years’ imprisonment would be appropriate which after reduction for plea of guilty would lead to a final sentence of 40 months’ imprisonment or 3 years and 4 months’ imprisonment.

23.I will achieve this as follows:  I will order that Charges 1 and 3 to 5 to be served concurrently.  Charges 6 to 13 to be served concurrently but consecutively to Charges 1, 3 through to 5.  Charges 14 and 15 to be served concurrently to each other but 4 months’ consecutively to Charges 1, 3 through to 5 and Charges 6 through to 13 leaves an overall total of 40 months’ imprisonment.

24.The length of disqualification is determined by law but I do know that disqualifications for driving are not served consecutively to the other disqualifications which by my calculations would lead to 3½ years’ driving disqualification but of course the defendant still needs to go through his Driving Improvement Course which he cannot do until he has finished his prison sentence.