HKSAR v. Yuen Siu Ki and Another

DCCC 530/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 530 OF 2014

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Reasons for Sentence

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1.The 1st defendant has pleaded guilty to 14 charges today. The 2nd defendant has pleaded guilty to one charge. That is, Charge 9, which he jointly faced with the 1st defendant.

2.The 1st defendant pleaded guilty to nine charges of theft.  They relate to nine stolen vehicles.  All vehicles were ultimately recovered, but the majority of the victims suffered losses either as a result of their belongings going missing, or the cargo in their vehicles having gone missing, or damage to the vehicles themselves.

3.The defendant has pleaded guilty to one charge of fraud.  That is Charge 9.  In this case, the defendant took credit card details of one of the car owners and used it to book a room at the Four Seasons Hotel, where he then proceeded to spend over $30,000.  He made off without settling the bill.

4.The 2nd defendant is jointly charged because he joined the 1st defendant at the Four Seasons Hotel and enjoyed certain services and goods.

5.The 1st defendant also pleaded guilty to one charge of dangerous driving, Charge 8.  He took the Mercedes of Charge 7, and when he was almost caught red‑handed, drove it in a very dangerous manner. He was actually chased by police officers, and to escape the police he damaged four vehicles whilst driving away, and at one stage drove against the traffic up a road.  He drove so dangerously that one officer drew his revolver to warn the defendant to stop.  Unbelievably, the defendant, instead of stopping, continued to drive, and in fact got away.  Damage to the four vehicles ranged from between $1,000 to $30,000.

6.When the defendant was eventually arrested, he had identity cards belonging to others in his possession.  He pleaded guilty to possession of identity cards relating to others, Charge 14.  There were three separate Hong Kong identity cards.  There is no evidence he actually used them, but he admitted to the police that he would have used them to avoid detection if he had been stopped by the police.

7.The last offence he pleaded to was a theft of certain items belonging to others he says he found on the street.  Those include three credit cards belonging to others, two bank cards belonging to others, a membership card, and 11 letters belonging to others.

8.All these offences took place over the course of three weeks.

9.All the nine vehicles stolen were recovered by the police abandoned.  All were recovered within the space of between one day and several days.  Almost all the vehicles had been left unattended by their drivers whilst the drivers did deliveries or collected goods.  In one case, a driver stepped away momentarily, leaving his key in the ignition, only to have it stolen.  Where all nine vehicles are concerned, the defendant obviously jumped in and drove them away.  When all the vehicles were located, none of them had their car keys with the vehicle.  Some lost registration documents and vehicle plates.

10.Specifically, victims of Charges 5 and 10 lost cargos of cooked and frozen meat.  The frozen meat was worth $80,000.  The victim of Charge 12 lost 220 sets of uniforms and 50 trays of bread, as well as his own personal belongings such as his wallet and bag.  The victim of Charge 13, his car was found, but so badly damaged it was considered a write-off.  The defendant admitted he crashed it.  The victim of Charge 7, his car suffered damage of about HK$30,000 when the defendant rammed other vehicles and drove dangerously.  He also found that there was $20,000 and personal items missing from his vehicle, including documents that contained details of his credit card.  Those details the defendant later used to book a room at the Four Seasons.

11.Only two out of nine vehicles were recovered without specific loss other than their keys.

12.The defendant’s explanation as to the valuables in the car was that he threw away items, but that I do not believe.

13.The defendant caused financial loss to almost all nine victims, and certainly caused great inconvenience to them all.  There is no satisfactory explanation as to why he committed these offences except a suggestion of doing it for fun.  These offences he says he committed out of fun netted him a significant profit.  As I have said, he used the credit card details of a specific victim and made a booking at the Four Seasons Hotel.  On 4 February he sent this hotel a credit card authorisation letter purporting to be this victim.  The hotel accepted it, and when the defendant arrived not long after, they checked him into a room.  He stayed there for a day, and during the course of that day he used many of the hotel services.  In fact, the value of the services and goods he either ate or bought came to $34,276.50.  There is no restitution from either defendant.

14.Halfway through his stay, the 2nd defendant arrived to join him.  The 2nd defendant admits that he at some stage found out that the 1st defendant was acting fraudulently.  He nonetheless went on to enjoy the hotel services by ordering food and taking a hotel limousine to leave the hotel.

15.I accept, however, that the 2nd defendant’s role is less serious than the 1st defendant’s role.

16.I have heard mitigation on behalf of both defendants.  The 1st defendant is not a man with a clear record.  He has appeared in court 11 times.  He has many previous convictions.  Many relate to offences of dishonesty.  Others include using identity cards belonging to another, and in fact in the year 2011 he was convicted of fraud-related offences such as obtaining property by deception.  In DCCC 447/2011 he was convicted of seven offences and sentenced to 36 months’ imprisonment.

17.The facts of that case are remarkably similar to the facts relating to Charge 9, the fraud charge in this case.  The facts are in that case he used credit card details belonging to others to book a hotel in Tsuen Wan and enjoyed the services and goods of that hotel by fraudulent means.  In fact, the facts are not very similar, they are identical.

18.His last conviction before this case was in April 2014, where he was sentenced to 15 months’ imprisonment.  In that Eastern Magistracy case he faced charges of theft, drugs and possession of another’s identity card.  The 1st defendant is still serving that sentence and will be until at least January 2015, according to defence counsel.

19.The 2nd defendant is also not a man of clear record.  He has nine previous court appearances, and his previous convictions include blackmail, theft, assault, possession of offensive weapons and dangerous drugs offences.

20.I have heard mitigation put forward on behalf of both defendants.  The best mitigation is their pleas of guilty today.  I have heard that the 1st defendant, who is 32 years old, has recently married.  He has no children.  He had since his last release from prison been employed. However, he lost his job in January this year.  Soon after, he went off on this crime spree.

21.The 1st defendant has no driving licence, yet where all these theft offences are concerned, he drove cars or vehicles in some of the most densely-populated areas of Hong Kong.  It is a wonder that he did not kill anyone.  Driving without a licence means he had no insurance.  This has to be an aggravating factor.  He has not been charged with those offences, but I can take it into account.  There is no real explanation for his actions. I am quite certain they are motivated to a certain extent by greed.

22.I accept, as suggested, that this is not a syndicate‑type case of stealing vehicles, nor is there any international element.  There is no evidence he was acting other than on his own.

23.The 2nd defendant is 39 years old, married, with no children.  He has employment most of the time.  Defence counsel asks for leniency and suggests that as he is not the mastermind or instigator of the fraud charge, the court can treat him differently from the 1st defendant.

24.There are no tariffs for these offences, and they do depend on the facts of each case to be considered separately.  I do take into account the facts of the case, the number of cars stolen, the losses suffered by individual victims, and the fact the 1st defendant drove without a licence and therefore without any insurance.  I also take into account the manner of driving in the dangerous driving charge, the modus operandi of the fraud of Charge 9 and the nature of the items found on the defendant he says he so conveniently picked up off the street, all related to the identity of others. 

25.I also take into account mitigation put forward and submissions of defence counsel.  Where the cars are damaged or the goods or belongings of the victims are stolen, the starting point will be higher.

26.Defendants, please stand up.  After careful consideration, I will deal first with the 2nd defendant, as the 2nd defendant only faces one charge.  Taking into account your role, I do find a term of imprisonment appropriate.

27.I take a starting point of 12 months’ imprisonment.  You have pleaded guilty.  You are entitled to a discount of one‑third. For this offence, Charge 9, you will be sentenced to 8 months’ imprisonment.

28.For the 1st defendant I take a starting point for the charges as follows:

Charge 1, I take a starting point of 24 months;

Charge 2, a starting point of 24 months;

Charge 3, a starting point of 24 months;

Charge 5, a starting point of 30 months;

Charge 6, a starting point of 24 months;

Charge 7, a starting point of 30 months;

Charge 8, a starting point of 24 months;

Charge 9, a starting point of 24 months;

Charge 10, a starting point of 30 months;

Charge 12, a starting point of 30 months;

Charge 13, a starting point of 30 months;

Charge 14, a starting point of 15 months;

Charge 15, a starting point of 18 months.

29.You pleaded guilty.  You are entitled to a discount of one‑third.  After that discount is applied:

for Charge 1 you are sentenced to 16 months’ imprisonment; Charge 2, 16 months’ imprisonment;

Charge 3, 16 months’ imprisonment;

Charge 5, 20 months’ imprisonment;

Charge 6, 16 months’ imprisonment;

Charge 7, 20 months’ imprisonment;

Charge 8, 16 months’ imprisonment;

Charge 9, 16 months’ imprisonment;

Charge 10, 20 months’ imprisonment;

Charge 12, 20 months’ imprisonment;

Charge 13, 20 months’ imprisonment;

Charge 14, 10 months’ imprisonment;

Charge 15, 12 months’ imprisonment.

30.I take into account the totality principle.  I order the following.  For Charges 1, 2, 3, 6, 7, 10, 12 and 13, for those sentences for those charges, I will order that 2 months’ of those sentences, of each sentence, will run consecutively to Charge 5.  All these are offences relating to stolen vehicles.  That would mean for those charges, a sentence of 36 months’ imprisonment.

31.For Charge 8, the dangerous driving charge, I will order that 3 months of that sentence be made consecutive to Charge 5.

32.For Charge 9, the fraud charge, I order that 3 months of that sentence be served consecutively to Charge 5.

33.For both Charges 14 and 15, for 1 month of each sentence, I will order them to run consecutively to Charge 5.

34.So for Charges 8, 9, 14 and 15, I add a further 8 months to Charge 5.

35.That is a total sentence of 44 months’ imprisonment; therefore, 3 years and 8 months.

36.The defendant does not have a driving licence. Nonetheless, you are disqualified from taking a driving test for the next 3 years.  That is an order attached to Charge 8.  Because you have no driving licence, I will make no order as to any driving improvement course.

37.Lastly, the sentence of 3 years and 8 months will run consecutively to Eastern Magistracy case 849/2014.