HKSAR v. Cheng Yuk

DCCC 983/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 983 OF 2009

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Reasons for Sentence

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Charges and facts

1.The defendant pleads guilty to 19 charges of theft (Charges 1 – 19) and 1 charge of failure to produce proof of identity on demand (Charge 20). The theft each involved at least a mobile phone.

2.In addition, cash or ball pen, as the case may be, was involved in some of the charges as follows:

(1)  Charge 1: cash $500;

(2)  Charge 3: cash $4,000;

(3)  Charge 11: one ball pen (valued at $400);

(4)  Charge 14: one ball pen (valued at $600).

3.The thefts took place between 28 May 2008 (Charge 1) and 5 June 2009 (Charge 19). Charges 1 – 3 and 8 involved a friend of the Defendant. The other charges involved a solicitor’s employee, an insurance or investment agent, who was beguiled into meeting the Defendant as a potential business client at the request of the Defendant. The Defendant borrowed the mobile phone on the pretext that his own set was out of battery. Those charges which involved people other than his own friends reflected prior planning. They were more serious than those 4 charges which victimized his own friends. None of the properties were recovered. The total value was $62,160.

4.Charge 20 related to the failure to produce his identity proof on demand by the police officer who subsequently arrested him for suspicion of having stolen the mobile phone the subject-matter of Charge 19.

5.The Defendant admitted the offences under caution. None of the stolen properties could be recovered.

Mitigation put forward

6.The defendant is now 35 years of age. He studied up to primary five. He had done a variety of unskilled jobs. His parents have retired. He has an elder sister and a younger brother. He has no fixed abode. He had cohabited with his girlfriend before. They have a daughter, now 11 years of age.

7.He has many previous convictions, 16 of which were for theft between 1988 and 2008. His counsel accepts that he can be regarded as a repeat offender.

Sentencing principles

8.The starting point for sentence may need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The guiding case is HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 where Stuart-Moore V-P made the observation, at 833:

“11.  Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this Applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

12.  We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none. If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.”

9.Where sentencing for two or more similar offences, the sentencer has to consider both the individual sentence and the global sentences. The guiding case is HKSAR v Yip Kwok-fai CACC 306/2002. Stuart-Moore V-P said, at para. 13:

“In a case such as this where there are two closely related offences, the sentencer, following the approach set out in HKSAR v Tam Wai-pio[1998] 4 HKC 291 at 298, after deciding the appropriate starting point for each offence, must then take an overall view of what the end result in terms of sentence should be. If wholly concurrent sentences are inappropriate, an upward adjustment is, of course, achieved by means of consecutive sentencing to achieve the proper sentence in totality.”

Sentencing the Defendant

10.The 15 charges involving people seeking potential business clients attract an initial starting point of 10 months’ imprisonment each. With the aggravating factor of repeat offending, I take an eventual starting point of 12 months each. I reduce it to 8 months because of his plea of guilty. The 4 charges involving his friends attract an initial starting point of 8 months and an eventual 9 months. I reduce it to 6 months because of his plea of guilty.

11.By totality, I make the following adjustment:

(1)  Charge 11, which is the most serious one in terms of the property value involved (i.e., a ball pen valued at $400 and mobile phone valued at $5,280) and his posing as a potential business client, 8 months to be served in full;

(2)  Charges 4 – 7, 9 and 10, 12 – 19 (a total of 14 charges here), which involved his posing as a potential business client, 2 months each to be consecutive to Charge 11;

(3)  Charges 1 – 3 and 8, (a total of 4 charges here), 1 month each to be consecutive to Charges 4 – 7, and 9 – 19.

(4)  The total length is 40 months (i.e., 8 + 28 + 4).

12.Charge 20 carries a Level 2 fine but no imprisonment. I impose a fine of $500 to be paid today. As the Defendant cannot pay up, I impose 1 day’s imprisonment. This is to be concurrent with his other terms of imprisonment.