HKSAR v. Yu Kwok Yung and Another

DCCC 1243/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1243 OF 2010

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Reasons for Sentence

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1.The Defendant, D2 on the amended indictment and so termed throughout, pleaded guilty before me to 20 counts, namely 19 counts of theft contrary to Section 9 of the Theft Ordinance, Cap. 210 and 1 count of attempted theft, contrary to Section 9 of the Theft Ordinance, Cap. 210 and Section 159G of the Crimes Ordinance, Cap. 200. Of these 20 counts, 6 were offences where he was jointly charged with D1 on the amended indictment. 

2.The offences in question are the type commonly referred to as ‘theft from vehicle’ offences and the offences took place between 25 January 2010 and 20 July 2010.  Property as set out in the particulars of the charges were stolen from vehicles that were parked inside car parks.

3.Facts admitted by D2 disclosed that:

a) In respect of count 1, on 25 January 2010, he stole from a private car with registration number MS246 that had been parked at the Lung Cheung Mall Car Park in Wong Tai Sin a DVD player and a USB memory stick, totally valued at HK$3,200. The front wind catcher of the car had been broken and there were signs of ransacking inside the car. CCTV of the 2^nd floor of the car park, which is where the car had been parked, captured D2’s image at 10.15 a.m. on the 2^nd floor.

b) Counts 2 and 3 were both committed on 25 January 2010 at the same car park, namely the Wah Lai Estate Car Park at Cheung Sha Wan. In respect of count 2, the vehicle had been parked on the 1^st floor of the car park. On returning to his car, the owner found the front nearside window of his car had been smashed and one speed detector valued at HK$2,600 was stolen. In respect of count 3, the vehicle had been parked on the 3^rd floor of the said car park. On returning to his car, the owner found the front nearside passenger seat window had been smashed and a speedometer valued at HK$4,000 which had been stuck on the windscreen had been stolen. CCTV of the 1^st floor of the car park captured D2’s image on the 1^st floor of the car park on 25 January between 12.53 p.m. and 12.56 p.m.

c) Counts 4, 5 and 6 all took place on 26 January 2010 at the Beverly Garden Car Park at Tseung Kwan O. In respect of count 4, the owner found the rear offside window of her vehicle which had been parked on the 6^th floor of the car park had been smashed and a ‘Kenwood’ DVD player valued at HK$7,000 and cash HK$50 was missing from the vehicle. In respect of count 5, the owner found the offside rear window of his vehicle which had been parked on the 5^th floor of the said car park had been smashed and a ‘Kenwood’ DVD player valued at HK$9,000 was missing from the vehicle. In respect of count 6, the owner found that the offside front window of his car, which had been parked on the 5^th floor of the said car park had been smashed and an I-pod valued at HK$1,000 and an electronic speedometer valued at HK$3,000 had been stolen.

d) Count 7 took place at the Kwong Lam Court Car Park in Shatin on 1 February 2010. On returning to his car parked at the 1^st floor of the said car park, the owner found the rear windscreen smashed and a ‘Kenwood’ DVD player, valued at HK$3,000, a GPS unit valued at HK$1,500 and a ‘Shell’ petrol discount card were missing. CCTV of the said car park captured D2’s image inside the car park at 10.06 a.m.

e) Count 8 took place at the Lee On Estate Car Park on 22 February 2010. On returning to his parked car at the 1^st floor of the said car park, the owner found the nearside front window of his car had been smashed, and an I-pod valued at HK$500, a radar speed detector valued at HK$5,000, a drive recorder valued at HK$7,500 and a platinum bracelet valued at HK$15,000 were missing from his car. CCTV image of the 1^st floor of the said car park captured D2’s image at 1.09 p.m.

f) Counts 9 and 11, in which D2 was jointly charged with D1, both took place on 6 March 2010 at the Kwai Chung Car Park at Kwai Chung. In respect of count 9, when the owner returned to his vehicle which had been parked on the 4^th floor, he found the offside rear window of his car had been smashed and a ‘Kenwood’ audio sytem valued at HK$10,000, a MP-3 player and a hi-fi rack were missing from his vehicle. In respect of count 11, the owner found, on returning to his car which he had parked on the 3^rd floor of the said car park, that the front nearside wind catcher of his car had been smashed, and a ‘Kenwood’ audio system valued at HK$4,300, a ‘Nissan’ Gear Lever valued at HK$4,000, a dashboard cover valued at HK$8,000 and a card reader with a SD card were missing from the car. CCTV installed on the 3^rd and 4^th floors of the said car park captured D2’s image between 12.02 p.m. and 12.30 p.m. on 6 March 2010.

g) Count 13 took place on 19 March 2010 at the Lai On Estate Car Park in Shamshuipo. On returning to his car parked at the basement of the said car park on 19 March 2010, the owner found the offside rear window smashed and a JVC player valued at HK$4,500 missing from the car. CCTV installed at the G/F caught D2’s image at 11.43 a.m. on 19 March 2010.

h) Counts 14 and 15 are counts where D2 was jointly charged with D1.

i) On 7 April 2010, a woman police sergeant saw a Chinese male driving a vehicle with D2 on board the vehicle with registration number KX 9585. At 12.49 p.m., the vehicle was parked at Shun Ning Street near Cheong Wah Street. At 12.58 p.m., D2 alighted from the car and entered the Lai Bo Garden Carpark. He was seen to leave the car park at 1.03 p.m., and return to the parked vehicle, board the vehicle, and the vehicle was driven away. The woman police sergeant conducted a search of the said car park and found that a vehicle parked at the basement of the said car park had the offside middle window smashed. The owner was contacted and confirmed that when he had parked his vehicle at the car park, it had been fine. He checked the vehicle and found that although the window had been smashed, nothing was missing from the vehicle, hence count 14 was a count of attempted theft. CCTV inside the car park captured D2’s image at the material time.

j) The vehicle KX 9585 was seen parked on Welfare Road in Aberdeen at about 2 p.m. on 7 April 2010. The woman police sergeant was informed and she went there. At 2.03 p.m. she saw D2 and the other male alight from the vehicle and walk along Welfare Road to the Jumbo Court Car Park. They entered the car park at 2.07 p.m. At 2.22 p.m., the other male came out of the car park and returned to the parked vehicle KX 9585 and sat in the driver’s seat. A few minutes later, D2 was seen running out of the car park and boarding the front passenger seat of the vehicle KX 9585 and the car drove off. The Jumbo Court Car Park was searched. A vehicle parked on the 2^nd floor of the said car park was found to have its offside middle window smashed. The owner was contacted who confirmed the vehicle had been fine when she parked it there earlier. A ‘Kenwood’DVD player valued at HK$10,000 was found missing from the vehicle (Count 15).

k) Count 16, wherein D2 was jointly charged with D1 on the amended indictment, took place on 6 May 2010 at the Rhythm Garden Car park in Wong Tai Sin. On returning to his car parked on the 3^rd floor of the said car park, the owner found that the nearside front window of the car was smashed and a ‘Pioneer’ DVD player valued at HK$7,500 was missing from the vehicle. The CCTV system at the said car park caught images of D2 inside the car park lift at 1.53 p.m.

l) Counts 17 and 18 both took place on 24 May 2010 at the Siu Lun Court Car Park at Tuen Mun. In respect of count 17, the owner returned to his parked vehicle on the ground floor of the said car park and found the front offside wind catcher of his car was smashed and a ‘Sony Ericsson’ mobile phone valued at HK$1,000, a GPRS valued at HK$700, a ‘JVC’ hi-fi components valued at HK$3,000, a ‘JVC’ displayer valued at HK$900 and a USB memory stick valued at HK$100 were missing from his vehicle. In respect of count 18, when the owner returned to his vehicle which he had parked on the ground floor of the said car park, he found that the rear nearside sliding door window of his car had been smashed and one ‘Panasonic’ hi-fi components valued at HK$3,500, one displayer valued at HK$1,500 and one USB memory stick were missing from the vehicle. The CCTV system installed at Siu Lun Court captured D2’s image at around 0.41 to 0.59 hours on 24 May 2010.

m) Count 19 took place on 6 June 2010, at the Sha Kok Estate Car Park in Shatin. When the owner returned to his vehicle which he had parked on the 1^st floor of the said car park, he found the offside front window of his vehicle had been smashed and a speed radar detector valued at HK$4,000 was missing from the vehicle. The CCTV of the car park had captured the image of a male and D2 loitering in the car park between 10.30 p.m. and 11.39 p.m. D2 was seen at 11.19 p.m. tampering with the parked vehicle with another male beside him.

n) Count 20 took place on 10 June 2010 at the Dragon Centre Car Park at Shamshuipo. On returning to his parked vehicle on the B2 floor of the said car park, the owner found the police were already there and that the nearside front window of his car had been smashed. He found that a GPS unit valued at HK$850 and a speed radar detector valued at HK$5,000 were missing from his vehicle. The CCTV system at the said car park had captured images of D2 and another male loitering in the lift lobby and car park lift between 1534 and 1600 hours on 10 June 2010.

o) Count 21 took place between 12 and 15 July, 2010 at the basement car park of the Sheung Shui Town Centre. The owner had parked his vehicle there on 12 July 2010, and when he returned to his parked vehicle on 15 July 2010, he found the front offside wind catcher had been smashed and a set of vehicle hi-fi valued at HK$4,500 and cash HK$120 were missing from the vehicle. DNA of D2 was found from two swabs from the broken plastic cover of the vehicle.

p) In respect of count 22, D2 was charged jointly with D1. At about 12.25 p.m. on 20 July 2010, a police officer spotted a vehicle with registration number PF 910 being driven along Po Lam Road North and it turned into Kai King Road. In respect of count 16, a vehicle with registration number PF 910 had been in the car park at the time when D2 had been there with another male. The police officer spotted PF 910 parked at the roundabout outside Beverly Garden in Tseung Kwan O and D2 and another male were seen to be moving a golf bag containing 10 golf clubs and a blue baby car seat onto the rear passenger seats of PF 910. They then boarded the car and the car was driven away. A search was conducted of the Beverly Garden Car Park and a vehicle parked on the 5^th floor of the said car park was found with the glass in the window of the driver’s door smashed. The car owner was contacted and when he returned to the vehicle, he confirmed that he had parked his vehicle there on 18 July 2010. He checked his vehicle and found that a ‘JVC’ DVD player with remote control valued at HK$4,910, a ‘LG’ DVD player valued at HK$1,500, a blue baby car seat valued at HK$4,500, a golf bag containing 10 golf clubs valued at HK$4,000 and 2 USB memory sticks were missing from the vehicle. D2 was seen on the CCTV images approaching and tampering with the vehicle and leaving with the relatively bigger items.

q) D2 was arrested at 10.30 p.m. on 20 July 2010 and admitted count 22 under caution. In a subsequent video interview under caution, he admitted all the offences.

4.After hearing Counsel in mitigation, I adjourned the matter, calling for a Background Report.  This is now before me and I have considered the contents therein, as well as all that has been urged in mitigation by Counsel on behalf of D2.  I had also asked to see photographs of the vehicles involved in all the charges, and these were produced by agreement. The damage done to the vehicles in question were depicted in the photographs. When interviewed under caution, D2 had admitted that he could not remember the details of each offence but said he usually used a screwdriver to break the car window to steal from the vehicles in question.  I had asked the Prosecution for a schedule setting out the cost of repair to the vehicles involved, and I have this before me now.  Counsel for D2 does not challenge that the total cost of repair for all the vehicles was HK$52,500.  Very little of the stolen property has been recovered.

5.In mitigation, Ms. Tam for D2 submitted that he was aged 33 years and single.  He has been educated to Form 3, and he lives alone.  He used to be a vehicle maintenance worker on a casual basis earning HK$4,500 a month but had been unemployed for several months prior to his arrest.  He could not find a stable job and committed the present offences out of financial need.  The Background Report indicates that D2 started smoking heroin under the influence of undesirable peers when he was only 14 years old.  He had not been able to get rid of his addiction, and prior to his arrest he took heroin daily and spent several hundred dollars each day on his habit.  D2’s criminal record dates back to 1994.  He has had 13 court appearances with 20 convictions, of which 10 are theft related, 6 being offences of theft from vehicle.  His last conviction was on 5 August 2009, for an offence of theft from vehicle, when he was sentenced to 4 months’ imprisonment.

6.I view these as serious offences – they were committed by D2 over a period of time from January 2010 until his arrest in July 2010.  On each occasion, he stole from vehicles that were parked inside car parks by smashing a window of the vehicle to gain entry into the vehicle and to steal from it.  On every occasion, he was successful to steal something save for one, count 14.  In respect of some of the charges, he stole from more than one vehicle parked in the same car park on the same night.  For some, he worked with an accomplice.  D2 has quite a number of previous convictions, including convictions for similar offences, the most recent being his last conviction on 5 August 2009, when he was sentenced to 4 months’ imprisonment – he can be viewed as a ‘persistent’ offender, and this is an aggravating feature warranting a higher starting point, ‘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’: HKSAR v. Chan Pui-chi [1999] 2 HKLRD 830,833.  Save for his pleas of guilty, there is really little mitigation of weight before me.

7.There is no guideline sentence for offences of this nature. Having considered the nature and circumstances of the offence, as well as that of the Defendant, I view the appropriate starting point for each charge to be one of 9 months’ imprisonment.  Giving D2 credit for his pleas, he is sentenced to 6 months’ imprisonment on each count.  These are all separate and distinct offences warranting consecutive sentences.  But I do bear in mind the totality principle and have also considered the overall criminality involved.  He is sentenced as follows:

Count 1	6 months’ imprisonment
Counts 2, 3 and 4	6 months’ imprisonment on each, 3 months’ concurrent with the sentence on count 1, and 3 months’ consecutive.
Counts 5 and 6	6 months’ imprisonment on each, 3 months’ concurrent with the sentences for counts 1 to 4, and 3 months’ consecutive.
Counts 7 and 8	6 months’ imprisonment on each, 3 months’ concurrent with the sentences for counts 1 to 6, and 3 months’ consecutive.
Counts 9, 11 and 13	6 months’ imprisonment on each, 3 months’ concurrent with the sentences for counts 1 to 8, and 3 month s’ consecutive.
Counts 14 and 15	6 months’ imprisonment on each, 3 months’ concurrent with the sentences for counts 1 to 9, 11 and 13, and 3 months’ consecutive.
Counts 16, 17 and 18	6 months’ imprisonment on each, 3 months’ concurrent with the sentences for counts 1 to 9, 11, 13 to 15, and 3 months’ consecutive.
Counts 19 and 20	6 months’ imprisonment on each, 3 months’ concurrent with the sentences for counts 1 to 9, 11, 13 to 18, and 3 months’ consecutive.
Counts 21 and 22	6 months’ imprisonment on each, 3 months’ concurrent with the sentences for counts 1 to 9, 11, 13 to 20, and 3 months’ consecutive.

8.That is a total of 30 months’ imprisonment.