HKSAR v. Lee Kin Shing

DCCC 1044/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1044 OF 2014

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

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

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

Reasons for Sentence

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

1.The defendant pleaded guilty to two counts of theft[1], two counts of driving without a valid driving licence[2], two counts of using a motor vehicle without third party insurance[3] and one count of blackmail[4].

Facts

Charges 1 to 4

2.The defendant pretended to be interested in the purchase of a second hand motor vehicle, SK1120. Communications and negotiations between the defendant and the person entrusted by the owner to sell the vehicle, Mr. Chiu, were conducted online and via WhatsApp. They agreed at a price of $171,000.

3.On the morning of 14 August 2014, the defendant met with Mr. Chiu at University Station in Shatin for a test drive of vehicle. The defendant managed to persuade Mr. Chiu to get out of the vehicle so that he could drive it alone. The defendant then drove the vehicle away, leaving Mr. Chiu behind, and did not return. The theft was reported to the police.

4.The defendant however did not completely vanish. Between 15 and 17 August, the defendant sent WhatsApp messages and photographs of the vehicle to Mr. Chiu and demanded $32,000 for its return. The defendant also threatened to destroy the car if Mr. Chiu did not respond to his messages.

5.Mr. Chiu agreed to make the payment and left cash of $32,000 on the street for the defendant to pick up. The defendant did take the money. Mr. Chiu was then directed by the defendant to a carpark in Cheung Fat Estate where he found the vehicle on the evening of 17 August.

6.Police investigation revealed that the vehicle was driven into the carpark by the defendant who used an Octopus card to enter. Closed circuit television footage from the carpark captured the defendant’s face.

7.At the time of his driving the vehicle, the defendant did not hold a valid driving licence nor was he insured against third party risks.

Charges 5 to 7

8.Sixteen days after the defendant first contacted Mr. Chiu in relation to SK1120, on 28 August, the defendant sent a WhatsApp message to Mr. Lai, who had put up a private vehicle KK352 for sale online, indicating his interest to purchase the vehicle.

9.Mr. Lai and the defendant met in the afternoon of 29 August at the car park of the Shatin Racecourse for a purported test drive. The defendant, again, managed to get Mr. Lai out of the vehicle and drove it away.

10.Mr. Lai posted a message on his Facebook page talking about the incident, included in it his contact number, vehicle licence number and a photograph of the car.

11.Later on the same day, KK352 was spotted on a flyover in Tsing Yi by a Mr. Cheng who had seen Mr. Lai’s Facebook post. He immediately decided to follow the vehicle and telephoned Mr. Lai. The vehicle was driven into a car park in Shek Kip Mei. The Police was notified and arrived at scene shortly.

12.KK352 was located by Police officers inside the car park. Some time later, the defendant was seen walking in the vicinity of the vehicle and was intercepted for enquiry.

13.Upon search, the ignition key to KK352 was found on the defendant. Under caution, the defendant admitted to having stolen the vehicle.

14.In the subsequent cautioned video recorded interview, the defendant admitted to the stealing of SK1120 and KK352 and that he had driven them without holding a valid driving licence or third party insurance policies.

Previous convictions

15.The defendant has 6 previous convictions. He was first convicted at the age of 14 years and 10 months for Robbery when he was sentenced to 12 months’ probation. He was then sentenced to another period of probation for the possession of Part I poison in 2001. In that same year, when he was 17 years and 8 months old, he was sentenced to 8 years’ imprisonment for robbery.

16.His next convictions were in 2005 for Offering an advantage to public servant and conspiracy to incitement when he was sentenced to 10 months’ imprisonment on top of the 8 years sentence that he was then serving.

17.The defendant’s latest conviction was in 2011 when he was sentenced to 4 weeks’ imprisonment for theft in the Shatin Magistracy. The defendant was then 27 years and 8 months old.

Mitigation

18.The defendant is now 31 years and 3 months old. According to his antecedent statement, he was educated up to primary 6 level in Hong Kong. He had worked as a garage technician and later a technician at a plastic product factory.

19.The defendant has a keen interest in cars and in particular the Nissan Fairlady, which was the model of the two vehicles that he had stolen in this case. According to Mr. Fung for the defendant, the defendant’s original idea was to take the cars for a joyride. It was when he saw the witnesses “not concentrating” that he decided to “play a trick” on them and drove the cars away. Mr. Fung pointed out that the defendant was not involved in any accident while driving the vehicles and there was no injury to anyone nor damage to any property.

20.It is the defendant’s case put forward in mitigation that it was Mr. Chiu who first offered to pay the defendant $20,000 for the return of SK1120. According to Mr. Fung, it was only then that the defendant became greedy and demanded $32,000 instead.

21.Mr. Fung submits that this is not the worst kind of blackmail. The car was returned to its owner. It is the defendant’s case in mitigation that he had only received $3,200 in the sealed envelope that the defendant picked up and not the $32,000 that he had demanded.

22.For the sake of any possible future litigation, I make it clear here that I have not made a specific finding on this point. That is to say, I have not found whether it is Mr. Chiu or the defendant who is telling the truth, or whether they are both telling the truth but that the envelope had been tampered with before the defendant got his hands on the money. I find that whether the defendant did take the full amount is not relevant for the purpose of sentencing on the blackmail charge. The factor to be considered is that the defendant had made a demand for $32,000 with menace, and he shall be sentenced on that basis. Mr. Fung agrees with me on this.

Sentence

Charges 1 and 5: theft of vehicles

23.The maximum sentence for theft is that of 10 years’ imprisonment.

24.In the case of AG v Ng Kwok Hung, CAAR 7/1996, three goods vehicle parked on the road were stolen on different occasions and sold to the scrapyard with the use of forged registration documents or identity cards belonging to another. The respondent was charged with theft of the vehicles, with driving without a valid licence and without third party insurance, and using the identity card of another.

25.The Court of Appeal considered the overall criminality of each set of the offences and found that each warranted an overall sentence of imprisonment for three years. In relation to the theft of vehicle charges, the Court found that an appropriate starting point was that of three years’ imprisonment. The Court lowered the final sentence to reflect the circumstances of the case for reasons not relevant to our case.

26.Compared to our present case, I find the defendant’s criminality in the theft of the two vehicles is at least as serious, if not more, than the respondent in the Ng Kwok Hung case. The reasons are as follows. It was much easier for the defendant to find a target victim online. Everything could have been done in his own home. There was no risk of being spotted or apprehended while scouting for the right vehicle to steal on the street. There was also deception involved in the defendant’s theft, no doubt causing more grievance on the part of the owner, having had the vehicles taken from right under their noses.

27.The defendant first contacted Mr. Chiu on 12^th August 2014. Two days later they met up for the test drive. The defendant stole the vehicle on 14^th and then started to blackmail Mr. Chiu on 15^th, culminating in the demand for $32,000 and payment of a sum of money and later the return of the vehicle on 17^th August.

28.The agreed selling price for SK1120 was $171,000, which is a not a small amount. The car was of course returned to its owner after payment of the blackmail money. From a contractual point of view, the defendant was in breach of his agreement to purchase the vehicle at the agreed price and the owner can sue the defendant for damages supposedly, subject to him mitigating his loss. However, in the context of sentencing, I find that the owner of the vehicle did not suffer any substantial monetary loss since the $32,000 was actually paid by Mr. Chiu himself.

29.As for the theft of the second vehicle, KK352, it took place merely 16 days after the defendant had first contacted the victim in the earlier charge.

30.I reject what was put forward in mitigation about how the defendant only formed the idea to take the cars while the witnesses were “not concentrating” and that the defendant wanted to “play a trick” on them. I find the defendant’s version of fact inherently improbable based on the circumstances of the commission of the two thefts.

31.Given those circumstances, I find that it is an irresistible inference that the two thefts were both premeditated and well planned. The defendant was himself the mastermind of the theft as well as its executor.

32.Despite the defendant’s conviction record, his last conviction was for theft over 3 years ago. There are no similar previous convictions. I do not find his criminal record as an aggravating factor.

33.Bearing in mind the circumstances of the theft and the above mentioned case, I find that an appropriate starting point in relation to charge 1 and 5 is that of 2 and a half years’ imprisonment.

34.For the aggravating factor that the thefts were premeditated and well planned, I increase this sentence by 3 months, resulting in a sentence of 2 years and 9 months’ imprisonment. I did not take the defendant’s blackmailing the owner of the vehicle in charge 1 as an aggravating factor because it forms the subject matter of an independent charge.

35.I agree with Mr. Fung and find that there are no mitigating factors other than the defendant’s timely guilty plea.

36.The defendant is sentenced to 22 months’ imprisonment on charges 1 and 5 after granting him the full one-third discount for his guilty plea.

Charges 2, 3, 6 and 7: the driving without licence and insurance charges

37.The maximum sentence for driving without a valid licence, in the case of a first conviction, is a fine of $5,000 and imprisonment for 3 months.

38.The maximum sentence for using a motor vehicle without third party insurance is that of a fine of $10,000 and imprisonment for 12 months. Furthermore, a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for a period not less than 12 months nor more than 3 years from the date of conviction.

39.The defendant was driving a stolen vehicle on each occasion that he committed the present offences. There is no evidence that he had driven irresponsibly or that any damage to property or injury had resulted. The reason why it is a criminal offence for someone to drive without third party insurance is, however, obvious. It is important that the chance of someone being injured and not be compensated through insurance be minimized.

40.For the driving without valid licence charges, I find that there is a need for a term of imprisonment to be imposed. I adopt a starting point of 9 weeks’ imprisonment. I find no aggravating factors and that the only mitigating factor is the defendant’s guilty plea. The defendant is sentenced to 6 weeks’ imprisonment on each of charges 2 and 6.

41.In relation to the charges of driving without 3^rd party insurance, I also find that there is a need for a term of imprisonment to be imposed. I find an appropriate starting point is that of 3 months’ imprisonment. I find that there are no aggravating factors and the only mitigating factor is the defendant’s timely plea.

42.The defendant is sentenced to 2 months’ imprisonment on each of charges 3 and 7.

43.The defendant is further disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 2 years from the date of conviction, pursuant to s.4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance. I find that there are no special reasons to order otherwise. The disqualification periods in relation to charges 3 and 7 are to be served concurrently.

Charge 4: blackmail

44.The maximum sentence for blackmail upon conviction on indictment is that of 14 years’ imprisonment.

“Blackmail is one of the most serious offences in the calendar of offense, with deterrence as perhaps the most important part of the sentence, coming just after the question of punishment.”[5]

45.I find that of the 7 charges that the defendant faces, this blackmail charge is the most serious. Having stolen the vehicle in charge 1, the defendant could have sold it on to an innocent third party to make some money, which was what the respondent did in the case of Ng Kwok Hung above. Instead, the defendant had the effrontery to turn around and blackmail the same person whom he had stole from. He threatened to destroy the vehicle if his demand was not met.

46.In relation to the defendant’s allegation that it was only after Mr. Chiu had offered to pay him $20,000 to get the car back that the defendant formed the intention to blackmail, I reject this version of fact as being inherently improbable.

47.According to the summary of facts, one day after the defendant had driven away SK1120, the defendant had made phone calls and sent WhatsApp messages from his mobile phones to Mr. Chiu. The defendant sent photographs of the stolen vehicle, including a photograph showing the ignition key of the car to Mr. Chiu. It was only after these communications from the defendant that Mr. Chiu first made the offer of paying $20,000 to get the car back. I find that based on what the defendant had done, it is an irresistible inference that the defendant had made the communications in anticipation to and in support of his eventual demand for money for the return of the vehicle. I find also that this blackmail was premeditated and well planned.

48.Given the circumstances of the commission of this offence, I find that an appropriate starting point is that of 2 years and 9 months’ imprisonment.

49.I find that for the aggravating factor mentioned above, I will increase the sentence by 3 months. I find that the only mitigating factor is that of the defendant’s timely guilty plea. The defendant is sentenced to 2 years’ imprisonment on charge 4 after granting him the full one third discount for his plea.

Totality

50.Charges 1, 2 and 3 are all directly linked and I find them to be part of one transaction. I order their sentences to be served concurrently. For the same reason, the sentences in charges 5, 6 and 7 are also to be served concurrently.

51.Charge 4 is linked to charge 1 but is distinct in its criminality. Bearing in mind the principle of totality, I order 9 months’ of the sentence in charge 4 to be served consecutively to the sentences in charges 1, 2 and 3, making a total of 31 months’ imprisonment for these 4 charges.

52.Theft of the second vehicle KK352 is a wholly different transaction to the theft of SK1120. The offences took place on different days and against different victims. But for the quick thinking on the part of the owner of KK352 and the alertness of Mr. Cheng who spotted the vehicle, the defendant might not have been apprehended so quickly.

53.Again, applying the principle of totality, I order 11 months of the sentence in charges 5, 6 and 7 to be served consecutively to the sentences in charges 1, 2, 3 and 4, the balance concurrently. For the 7 charges, the defendant is sentenced to a total of 3 years and 6 months’ imprisonment.