HKSAR v. Yeung Tin Yau and Another

[English Translation - 英譯本]
HCMA 371/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 371 OF 2011

(ON APPEAL FROM TMCC 1738/2011)

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CORAM: HON D. PANG J

DATE OF HEARING: 30 NOVEMBER 2011

DATE OF JUDGMENT: 30 NOVEMBER 2011

J U D G M E N T

1.The two appellants pleaded guilty to, and were accordingly convicted, as co-defendants, of one count of “theft”, contrary to s.9 of the Theft Ordinance (Cap. 210). They were each sentenced to 12 months’ imprisonment and ordered to pay a compensation of $800 to the victim. They now appeal against the sentence imposed (only in respect of the prison term).

Facts

2.In his written decision, the sentencing magistrate summarized as follows the facts admitted by the appellants when they pleaded guilty:

“2. According to the facts they have admitted, at about 2 a.m. on 22 March 2011, the two defendants were on board a lighter moving near another lighter moored in Area 3 of Tuen Mun River Trade Terminal. Having embarked the lighter, the pair moved four pieces of iron plate, worth $1600, onto their own vessel before steering away. The owner of the iron plates later discovered that the property had been stolen. From the CCTV footage, the two defendants were seen stealing, a report to the police was thus made.

3. When being investigated by the police, the two defendants admitted stealing and said that the lost property had accidentally fallen into the sea.”

Personal Background and Others

3.The personal background of the two appellants and the grounds of mitigation advanced were as follows:

“4. The two defendants are respectively 57 and 58 years old. Both are seamen with clear records.

5. In mitigation, the duty lawyer/s representing them said that they stole the metal for balancing their own vessel. However, the iron plates had accidentally fallen into the sea. I found it not credible, as they had already moved the iron plates onto their own vessel. If they had intended that they be used on their own vessel, there was no reason that they should fall into the sea later. Moreover, even if it were true, this could not be a mitigating factor.”

Reasons for Sentence by the Magistrate

4.Finally, the magistrate remarked:

“6. I consider boarding a vessel on the sea to commit theft a serious crime. There is no sentencing guideline for this type of offences. I shall make reference to the sentences imposed in burglary cases committed in commercial premises. This is because if there were people on the vessel, they would definitely panic when they discovered a thief on board the vessel but were unable to escape because they were out on the sea. And any struggle with the thief is likely to result in injury or death. I am of the view that the acts committed by the two defendants are similar to those of a burglar.

7. The aggravating factors in this case are: the pair acted in concert, the crime was committed in the small hours, they went stealing by boat, and the act was clearly premeditated. Although the two of them were men of clear records, a deterrent sentence must be imposed.

8. Having considered their clear records and that the value of the goods was not very high, I adopted 18 months of imprisonment as the starting point. 6 months was deducted for their guilty pleas. So, each defendant was sentenced to 12 months of imprisonment. The victim had suffered a loss of $1600. The two defendants were willing to make compensation. Therefore, I made another order that each defendant was to pay a compensation of $800 to the victim.”

This Appeal

5.I do not agree with the appealing party, I consider that the magistrate was justified in “making reference to the sentences imposed in burglary cases”.

6.According to the stipulation in s.11(3) of the Theft Ordinance, and B4.61 of Blackstone’s Criminal Practice 2011 where identical wording is used to interpret the English law, a person commits burglary if he boards an inhabited vessel as a trespasser and steals, and whether or not the inhabitant was on board the vessel at the material time is irrelevant. That is the first point.

7.Secondly, we can take judicial notice that the type of lighter in question is not always inhabited. However, it is not uncommon for people to stay overnight or even live on board. Therefore, whether boarding a lighter to commit an offence would constitute a case of burglary depends somewhat on the situation. What the two appellants had done in this case only constitutes the lesser offence of theft. It was therefore beyond their control in advance – unless they were aware of the details regarding the lighter in question which would mean a premeditated operation on their part.

8.Thirdly, the magistrate opined that stealing on a lighter is particularly dangerous since it would easily trigger off other incidents and aggravate the severity of this type of cases. He was totally correct. Similar to the situation of burglary, this conclusion would remain correct even if no one stayed overnight or lived on the lighter in question, or if the stolen property was located by the edge on the deck instead of in the cabin of the vessel.

9.However, in the end, the magistrate did not adopt the sentencing guidelines for burglary cases. On the contrary, he only said that the acts committed by the two appellants were “similar” to burglary, and that “reference” should be made to the sentences imposed in burglary cases. Otherwise, the starting points for the two defendants should be 30 or 36 months of imprisonment (namely, the starting points for entering a commercial or residential building as a trespasser), instead of the 18 months which is now the case.

10.The analysis so far has answered another question put forward by the appellants, namely, whether the sentences imposed on them could be varied to a non-custodial one.

11.As I said earlier, the gravity of boarding a lighter for stealing is to a certain extent similar to that of burglary. An offender must be given a deterrent sentence. Therefore, regardless of the offender’s background, it is hard to complain against an immediate custodial sentence.

12.Moreover, the two appellants alleged that they stole the iron plates to balance their own lighter, and that the iron plates subsequently fell into the sea by accident. All these were very hard to believe. I invited them to explain it in court. However, they could only prevaricate and come up with answers that one could not help but laughed. In such event, it is simply impossible for the magistrate or this court to accept that the appellants were remorseful and would thus substitute their sentences with community service orders.

13.Finally, the magistrate pointed out that the two appellants acted with premeditation. Although the expression may not be a perfect one, he was quite justified in saying so. 

14.What I mean is that according to the new supplemental affirmation filed by the appellants, at the material time, they were on duty but were free from actual duty for the time being. They therefore steered into the waters in question to wait for further instructions. However, since they were on board a vessel, it was greatly different from someone who was walking on land. For instance, more elaborated effort would be required for them to carry out observation on the lighter to commit the theft, to see if there was anyone on board, before steering their own lighter close to it and stabilizing the vessel, etc. In other words, they had a longer time to turn back but they did not seize the chance to stop themselves. On the contrary, under those circumstances, the acts committed by the two appellants could not possibly be described as “walking off with” as suggested by the appellants.

15.All in all, I do not think that 18 months was excessive as the starting point.

16.The appellants cited HKSAR v Tam Shik Tong HCMA1244/2005 in which an illegal immigrant, having arrived at Hong Kong, stole some construction materials from an engineering barge and shipped them back to the mainland for sale. That offender only received 2 months’ imprisonment. That case is of no help to the appellants because the appellant in that case only appealed against the 15 months of imprisonment for entering into Hong Kong unlawfully. Whether the sentence for the theft was appropriate or not was not an issue before the appellate court.

Decision

17.However, since the two appellants were rather advanced in age and had so far been law abiding citizens, and they have stable occupations and families, I therefore exercise my discretion, just this once, to reduce their sentences to 9 months of imprisonment.

Michael Tsang, Acting Senior Public Prosecutor of the Department of Justice, for the Prosecution.

Douglas Kwok, instructed by Hui & Lam, for the 1^st Defendant.

Henry Ma, instructed byLily Fenn & Partners, for the 2^nd Defendant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.