HKSAR v. Tang Wing Pui

HCMA 921/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 921 OF 2008

(ON APPEAL FROM TMCC 2597/2008)

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 24 March 2009

Date of Judgment: 24 March 2009

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J U D G M E N T

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1.The Appellant had pleaded guilty to one charge of “going equipped for stealing”, contrary to section 27(1) of the Theft Ordinance, Chapter 210.  The maximum sentence for this offence is 3 years’ imprisonment.  The Appellant was sentenced to 12 months’ imprisonment and he appeals against that sentence on the ground that it is manifestly excessive.

2.The relevant facts were that on 31 May at about 3.30 in the morning, the Appellant was a passenger in a private car which was moving on the road without headlights.  The police then stopped the car and found the Appellant inside the car.  Also with the Appellant was found a black bag containing a pair of labour gloves, one black handled screwdriver, one green handled screwdriver, one yellow handled hammer, one yellow handled pliers, one silver handled pipes, one small awl, one computer circuit board for vehicle ignition and one set of vehicle ignition mechanism with ignition key.

3.Under caution, the Appellant admitted that he was asked by others to find them a Honda Stepwagon and to remove the computer from it.

4.The Appellant is aged 23 and was a garage worker and he had 4 previous convictions.  The first one in 2001 was for “tampering with motor vehicle” and the others were not similar.

5.After mitigation, the learned Magistrate considered that the Appellant deserved a deterrent sentence and that the expertise involved in stealing a vehicle computer was so high that the Appellant could be properly regarded as a “professional thief”.  He also said that Honda Stepwagons are very popular 8-seater with high resale value.  So the computer was certainly a “worthwhile target”.

6.The learned Magistrate then went on to consider two cases where actual theft of cars were made.  After that, he adopted a starting point of 18 months and reduced it to 12 months because of the plea.

7.On appeal, Ms See, for the Appellant, complained that the learned Deputy Magistrate had erred in finding that:

(a)    the defendant was a “professional thief”

(b)   the value of stolen property was substantial;

(c)    a deterrent sentence was called for in the present case.

8.Ms See contended that the Magistrate was wrong to find that the Appellant was a professional thief.  Because there was no evidence called to say special expertise was required to remove the computer and Ms See asserted that the instruments found with the Appellant were ordinary instruments.

9.I am afraid I do not agree with her.  This was certainly a professional theft.  It was obvious that the Appellant on his own admission had been asked to target a Honda Stepwagon computer and he was driving around in a car with headlights off for that purpose.  He had also equipped himself with special equipment which he could use to remove the computer of the Honda Stepwagon.  So, this, in no way, can be considered to be an ordinary case of going equipped.

10.In the second ground of appeal, Ms See complained that the learned Magistrate had wrongly considered that the vehicle was of high resale value because the evidence was that he was only going to take the computer.  It is arguable whether a Stepwagon would be as worthwhile without the computer, obviously without the computer the vehicle cannot run.  So, obviously taking the computer away from the car is like taking the heart away from a person.  The learned Magistrate’s observation that Honda Stepwagons were of high retail value and that the computer was certainly a worthwhile target was commonsense and apt in the circumstances.

11.The learned Magistrate considered the 2 reported cases of taking a vehicle.  But he did not follow the sentencing in those cases.  As Ms Chan, for the Respondent, pointed out, the learned Magistrate had properly considered that stealing cars have become prevalent.

12.In this type of cases, normally a deterrent sentence would be necessary.  I have considered that the present offence is, as Ms Chan pointed out, a serious one within the range of cases of going equipped, and certainly requires a deterrent sentence, because I can see how people will target luxury cars to remove their computers in order to make money on repairing another luxury car who needs the computer.  This sort of thing has to be stopped.  The community has to be protected.

13.The Appellant had gone out knowing what he was looking for.  There was a lot of planning involved, so a deterrent sentence was indeed necessary.

14.As Ms Chan pointed out the learned Magistrate’s consideration of the case of the R v Simon Tam, HCMA 490 of 1996 has recognized that there is no tariff for taking a conveyance and taking into account the facts of each case and the maximum penalty of the particular charge, the learned Magistrate would, then, consider an appropriate sentence.

15.As I have said the maximum penalty for an offence of this type is 3 years’ imprisonment.  The learned Magistrate having heard mitigation, decided 18 months as a starting point, so sentenced the Appellant to 12 months’ imprisonment.  I cannot see that it is manifestly excessive nor is it wrong in principle.  So the appeal is therefore dismissed.

Ms Denise Chan, Senior Public Prosecutor, for the Respondent

Ms Sabrina See, assigned by the Legal Aid Department, for the Appellant