HKSAR v. Li Wai Hung

DCCC140/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 140 OF 2012

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Reasons for Sentence

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THE CHARGES AND PLEAS

1.The defendant, Li Wai-hung, appears before this court facing one count of “Taking Conveyance Without Authority” (1^st  Charge) and three counts of “Theft”  (2^nd  to the 4^th  Charge).

2.The defendant pleaded guilty to the 1^st, 3^rd and 4^th  Charge and admitted the facts pertaining to those charges.  I convicted the defendant on his own pleas and admission of 1^st, 3^rd and 4^th  Charge.

3.The defendant pleaded not guilty to the 2^nd Charge, at the request of the Prosecution, I ordered that the 2^nd Charge be kept on the court file and not to proceed with without leave.

THE FACTS

1st Charge

4.On 18^th June 2011, at about 8 pm, Mr Lau Tsz-wing parked his motorcycle bearing registration mark LW7963 (“LW7963”) at Yim Po Fong Street, Mong Kok, Kowloon.  Mr Lau found that LW7963 was missing when he returned to the location at about 10 pm on the following night.  He made a report to the police.

5.On 20^th June 2011, at about 10 pm, Mr Lau found that LW7963 was parked outside Pang Ching Court, Chui Chuk Street, Wong Tai Sin, Kowloon.  The ignition was damaged and the rear compartment prized open.  In the rear compartment, there was a helmet which did not belong to Mr Lau. 

6.Two fingerprints on the outside of the visor of the helmet matched with the left forefinger of the defendant.  One palm print on the outside of the fuel tank of LW7963 matched with the left palm of the defendant.

3rd and 4th Charge

7.On 25^th November 2011, at about 9 am, Mr Chim Pun-yuk parked his motorcycle bearing registration mark PT3307 (“PT3307”) at the motorcycle parking space near lamppost number CE1699, Chak Cheung Street, Ma On Shan, Shatin, New Territories.  When Mr Chim returned to the location at about 8 pm on the same day, he found PT3307 was missing.  Mr Chim reported the loss to the police (3^rd Charge).

8.On 29^th November 2011, at about 9.45 am, Mr Chui Nim-man parked his motorcycle bearing registration mark HE4008 (“HE4008”) under the footbridge outside Winner Centre, No. 333 Chai Wan Road, Hong Kong.  When Mr Chui returned to the location at about 5 past midnight on the following day, he found HE4008 was missing.  Mr Chui reported to the police. 

9.At about 10.45 am, DPC2635 and his colleagues found HE4008 covered by a motorcycle cover, in the alley next to the San Tin Post Office.  The officers monitored HE4008.  At about 1.09 pm, the defendant approached HE4008, removed the motorcycle cover and took out a helmet and a pair of gloves from the rear compartment of the motorcycle. The defendant then wore the helmet and the pair of gloves, mounted HE4008 and inserted a T-shaped screwdriver into the ignition of the motorcycle.  The police officers intercepted, arrested and cautioned the defendant.  Under caution, the defendant admitted that he stole HE4008.

FURTHER ADMISSIONS

10.In the subsequent video-recorded interviews, the defendant admitted the following:-

1) The defendant and his accomplice (“Ah Kau”) targeted motorcycle model Honda CB400.

2) The defendant made the T-shaped screwdriver himself.

3) The defendant stole PT3307 in Sha Tin. He used a hammer to damage the motorcycle lock, he then ignited the motorcycle with the T-shaped screwdriver and drove it to Ki Lun Village. He gave the motorcycle to Au Kau and Au Kau gave $5,000 to the defendant.

4) The defendant stole HE4008 in Chai Wan with the T‑shaped screwdriver. He drove the motorcycle to the alley next to the San Tin Post Officer to meet with Ah Kau.

THE CRIMINAL RECORD AND ANTECEDENT STATEMENT

11.In 1996, the defendant was convicted of one count of “Tampering With Motor Vehicle” and one count of “Taking Conveyance Without Authority”.

12.In 2007, the defendant was convicted of seven counts of Theft and was given the concurrent prison term of 2 years and 8 months.  Counsel informed me that that case also concerned theft of motorcycles and the defendant pleaded guilty to the charges. 

13.The defendant is now 45 years old.  A married man, he lived with his wife and two children before his remand. 

14.He had received primary 3 education in the Mainland.

MITIGATION

15.Mr Kwan tells me in mitigation that the defendant last offended in 2007 and he had been out of trouble for some years after his last convictions for motorcycles-related offences.

16.The defendant, a married man, lived with his wife and two children.  The defendant’s wife is a housewife and the defendant is the sole breadwinner for the family.  The defendant worked as a decoration worker.  Since the defendant had acquired the skills in repairing motorcycles, he also worked as a garage worker.  He earned around $10,000 per month.  The defendant also provides financial support to his parents, who are in their 70’s. 

17.Mr Kwan tells me, at around the time of the offences in question, the defendant’s wife suffered from some emotional problems.  She returned to Shenzhen and attempted to commit suicide by cutting her wrist.  She was admitted into a hospital in Shenzhen and was saved.  Her stay in hospital had incurred medical expenses of about $8,000.  Since the defendant did not earn much, the medical bill burdened the defendant financially.  To add to the problem, after the defendant’s wife returned to Hong Kong, she had to undergo surgery to her wrist for the injuries caused to the tendon.  She was hospitalised twice at Alice Ho Miu Ling Nethersole Hospital.  As the defendant’s wife could not take care of the children, the defendant had to stop working and take care of the children.

18.Mr Kwan says the defendant was under financial stress at the time of the offences.  Stupidly he resorted to illegal means to solve his problem. 

19.Mr Kwan submits that the defendant has pleaded guilty to the offences and is remorseful.  After the defendant was arrested, he led the police to Fanling where they located and arrested and Ah Kau.  I am told eventually the police decided not to prosecute Ah Kau as the evidence against him is insufficient.

20.Mr Kwan submits there is no tariff for theft of motorcycles, he draws my attention to two cases. 

21.In HKSAR v Tsang Kwun-wing CACC89/2004, the Applicant was sentenced to concurrent sentences of 2 years’ imprisonment for one charge of theft of a taxi and four charges of forgery of documents for the subsequent use for hire of the stolen taxi.  In respect of these five charges, the sentencing Judge took a starting point of 3 years’ imprisonment which was reduced to 2 years to reflect the pleas of guilty.

22.Tsang Kwun-wing was considered by the sentencing Judge in HKSAR v Wu Kam-pui (DCCC238/2010). 

23.Mr Kwan submits that the present case is different from Tsang Kwun-wing in that the defendant stole motorcycles, not taxi, and there was no forgery of documents. 

24.Mr Kwan urges me to take into consideration the guilty pleas of the defendant and his co‑operation with the police. 

DISCUSSION

25.The offences committed by the defendant are all serious in nature.  True it is that there is no tariff for theft of a vehicle, it is also fair to say that generally a motorcycle is not as valuable as a motor vehicle, the taking conveyance of the first motorcycle and the theft of the second and the third motorcycle had, no doubt, caused tremendous inconvenience to the owners concerned. These offences call for immediate terms of imprisonment.  Mr Kwan, in his realistic mitigation, does not suggest otherwise.

26.Mr Kwan, in citing Tsang Kwun-wing, submits that although a starting point of 3 years was taken by the trial judge for the theft of the taxi, that starting point was taken on the basis that concurrent sentences of 2 years’ imprisonment were imposed in respect of the theft charge and four other charges of forgery of documents.  He submits that the starting point of 3 years had already taken into account the other four charges. 

27.Mr Kwan accepts sentencing in cases of this nature is necessarily facts-sensitive. 

28.I do not think a sentencing judge, in determining the starting point for an offence, should take into account that concurrent terms of imprisonment would be imposed in respect of all other offences.  Totality principle does not come into play at that stage yet.  A sentencing judge, in determining the appropriate starting point for an offence, should take into account only those matters that are relevant to the offence in question.  The question of whether the sentences should be made concurrent/partly concurrent/wholly consecutive should be considered after appropriate starting points taken and sentences passed for individual offences, i.e. at the stage when a sentencing judge considers the totality principle.  Hence, I disagree with Mr Kwan’s submission that in Tsang Kwun-wing, the sentencing judge in taking 3 years as the starting point for the theft of the taxi, had already taken into account the concurrent sentences that he would impose for the forgery charges.  That is not my understanding of the reasoning of the sentencing judge.

29.In DCCC238/2010, the sentencing judge in paragraph 15 of his Reasons for Sentence, seemed to think otherwise, but DCCC238 is not binding on me.

30.The defendant is not a first offender.  He has previous similar convictions.  He was convicted of one count of “Taking Conveyance Without Authority” in 1996 and was given a suspended sentence.  In 2007, he was convicted of seven counts of Theft and was sentenced to 2 years and 8 months’ imprisonment.  The sentences imposed in the past failed to deter the defendant.

31.The defendant had displayed some degree of professionalism as evidenced by the use of his self-made T-shaped screwdriver and the targeting a particular model of motorcycles.  I also note that the defendant committed the offences together with an accomplice, Ah Kau.

32.Personal circumstances, for example, that the defendant was financially strained at the time of the offences cannot excuse the defendant nor can it be accepted as a mitigating factor. 

33.For his guilty pleas, the defendant is entitled to one-third reduction. 

34.For the co-operation provided by the defendant, which led to the arrest of Ah Kau, although Au Kau escaped prosecution at the end, in all fairness to the defendant, the defendant should be given some credit. 

35.For the 1^st Charge, the defendant damaged the ignition and prized opened the rear compartment.  He took LW7963 without Mr Lau’s permission.  Mr Lau was deprived of the use of his motorcycle and was inconvenienced as a result.  A starting point of 12 months’ imprisonment is appropriate.  I allowed the defendant 4 months’ reduction for his guilty plea.  I further reduce the sentence by 1 month for the defendant’s co-operation with the police which led to the apprehension of Ah Kau.  For the 1^st Charge, I sentence the defendant to 7 months’ imprisonment.

36.For the 3^rd and the 4^th Charge, the defendant stole the motorcycles for monetary rewards.  The owners were inconvenienced as a result.  Mr Chui was lucky that he could recover his motorcycle.  Mr Chim, the owner of PT3307, was not so lucky. 

37.For the 3^rd Charge, a starting point of 30 months’ imprisonment is appropriate.  The defendant is entitled to one‑third reduction for his guilty plea.  I allow the defendant a further reduction of 2 months for his co-operation with the police.  For the 3^rd Charge, I sentence the defendant to 18 months’ imprisonment.

38.For the 4^th Charge, a starting point of 27 months’ imprisonment is appropriate.  The defendant is entitled to one‑third reduction for his guilty plea.  I further reduce the sentence for 2 months for the defendant’s co-operation with the police.  For the 4^th Charge, I sentence the defendant to 16 months’ imprisonment.

39.The three offences that the defendant committed are separate and distinct offences.  They were committed by the defendant on different dates and locations.  They call for partially consecutive sentences. 

40.In my assessment, an overall sentence of 28 months’ imprisonment should adequately reflect the overall criminality of the three offences.  To achieve that end, I order that 4 months of the sentence for the 1^st Charge shall run consecutively to the sentence for the 3^rd Charge and 6 months of the sentence for the 4^th Charge shall run consecutively to the sentences for the 1^st and the 3^rd Charge.

41.The defendant has to serve 28 months’ imprisonment in total.