HKSAR v. Leung Chi Ho, Ken and Another

DCCC 144/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.144 OF 2013

---------------------------

---------------------------

-----------------------------

Reasons for Sentence

-----------------------------

1.There are 2 defendants and 12 charges in this case. D1 faces charges 8 to 11 together with D2. Charges 1 to 7 and 12 are against D2 only.

2.Charges 1, 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12 are all for theft, contrary to s.9 of the Theft Ordinance, Cap. 210.

3.Charge 3 is for obtaining property by deception, contrary to s.17(1) of the same ordinance.

Facts

4.All the theft charges involved the stealing of property belonging to restaurants or their staff between the hours of 3pm and 6pm, the time of day when the workers are usually on their breaks. There were no forced entries or any use of violence. In all but one of the cases, the owners of the property were not aware when their property were stolen and would have been away or taking a nap. In some of the cases, the property were taken from inside lockers which were unlocked.

5.The sole charge (charge 3) for obtaining by deception involved the use of a credit card by D2 which he had stolen slightly earlier from a staff of the Japanese restaurant in charge 2 to purchase a mobile phone worth $5,356.

6.D1’s involvement with charges 8 to 9 were as lookout for D2. D1 himself was however caught red handed when he stole $3,100 cash from the cashier of a Korean restaurant in charge 11. He admitted to taking part in the stealing itself in charge 10.

Previous convictions

7.D1 has 8 previous convictions but none are similar to any of the present charges.

8.D2 has 15 convictions. 6 of them were between 1994 and 2004, one was for burglary in 2006, one for attempted theft in 2008, one for robbery in 2009. His latest conviction was for possession of dangerous drugs in February 2013 when he was sentenced to 6 months’ imprisonment.

Mitigation

D1

9.Mr. Lee for D1 submitted a written submission in mitigation. D1 is 38 years old and single. He worked for a long time as construction site worker earning a stable income of around $7,500 per month. He lives with his parents who are both 62 years old. The defendant’s father is a metal worker earning about $8,000 per month while his mother is a housewife.

10.D1 accepts that the offences are serious but urges the court to show leniency, taking into consideration his guilty plea and full cooperation with the Police.

D2

11.Mr. Chan for D2 made a brief submission in mitigation. D2 is 38. His father is a retired Police officer while his mother is retired. He also has a younger sister. Mr. Chan submits that D2 is a hard working person. He used to work as a construction site worker earning $500 a day. He used to be able to work 26 days a month but has recently only been able to find work 15 days a month.

12.I was told that since D2’s last conviction for robbery in 2009, he had been working hard and had met his girlfriend. The reason why he committed the offences is his lack of money and work, making him unable to look after his girlfriend and her daughter. He feels great remorse, he knows what he did was wrong, and he is afraid that his girlfriend may leave him.

Sentence

13.The maximum sentence for theft and obtaining property by deception are the same at 10 years’ imprisonment.

14.Mr. Wong for the prosecution referred me to the case of HKSAR v Zhou Dingshu, HCMA 96/2004 where a starting point of 12 months’ imprisonment for a theft by the applicant of a shopping bag from a shopper with a newly bought camera inside was considered appropriate.

D1

15.D1 operated as a lookout in charge 8 and 9. He took part actively in the stealing in charges 10 and 11. Charges 8 to 10 took place on the same day and in quick succession. Charge 11 was committed just one day later when D1 was caught red handed having stolen money from the cashier of the Korean restaurant .

16.The total value of things stolen for the 4 charges is about $15,000. D1 and D2 obviously targeted restaurants. They acted together to commit the thefts.

17.The thefts are very similar to burglaries. I would not say they are similar to opportunistic burglaries because the defendants specifically targeted restaurants and had picked the perfect time to steal. The time when they obviously knew staff would be in the restaurants and would have their personal belongings with them, and they obviously knew that between the hours 3 to 6pm, restaurant staff would usually be taking a break and given the backbreaking work pressure they would usually be taking a nap. They have targeted the victims when they were vulnerable.

18.In relation to charge 8 to 11, I will adopt a starting point of 15 months’ imprisonment for each of the 4 offences. I will grant the full one-third discount for D1’s guilty plea and discount the sentence to 10 months’ imprisonment.

Totality for D1

19.Bearing in mind D1 has no previous similar convictions, but bearing in mind that the defendants committed the 4 offences in quick succession and in close proximity, I will order that 2 months of each of charge 9, 10 and 11 be served consecutively to the sentence of charge 8. The total sentence after discount in relation to D1 for charges 8 to 11 is therefore 16 months’ imprisonment.

D2’s sentence

20.D2 was acting as a professional thief when he committed the 12 offences. Charges 1 to 6 were committed within a 6-day period. Charges 7 to 12 were committed within another 15-day period.

21.All the theft offences were targeted towards restaurants or their staff. D2 had clearly scouted and noticed that between the hours of 3pm and 6pm, the workers would be on their breaks and usually napping and generally in a tired and therefore more vulnerable state. The stealing was very close to burglary. Given that the target victims were all restaurant workers who were working, the property stolen was not very valuable in general, with the mobile phone as the most valuable. In relation to charge 6, the defendant stole the work equipment of the renovation contractor.

22.I find that the commission of multiple thefts within a short period of time against specific targets an aggravating factor.

23.In relation to charge 3, the defendant had used the credit card stolen previously to make a purchase. This offence is of a different nature to the thefts and must be treated separately.

24.I will adopt a starting point of 12 months’ imprisonment for each of charges 1 to 7 and charge 12. I will adopt a starting point of 15 months’ imprisonment for charges 8 to 11. The reason for the higher starting point for these charges is that because they were committed jointly with D1.

25.I will grant the defendant the full one-third discount for his guilty plea. The discounted sentences are therefore 8 months’ imprisonment for charges 1 to 7 and charge 12, and 10 months’ imprisonment for charges 8 to 11.

Totality

26.These are not the first offences involving dishonesty for D2. The offences were committed in quick succession to one another in relation to charges 1 to 6 and 7 to 12. I find that an overall starting point of 3 years and 9 months for all 12 charges would have been appropriate, which would have resulted in a discounted sentence of 2 years and 6 months’ imprisonment.

27.I will therefore order that the sentence in charges 1, 2, 4, 5, 6 be served concurrently. The sentence of 8 months in charge 3 be served consecutively. The sentence in charges 7 to 11 be served concurrently, but consecutively to the other sentences, and 4 months of the sentence in charge 12 be served consecutively to the other sentences.

28.The total sentences for D2 in relation to all 12 charges is therefore 8 + 8 + 10 +4 =30 months’ imprisonment.