HKSAR v. LI CHUN KEUNG AND ANOTHER

DCCC 861/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 861 OF 2015

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HKSAR
v
(1) LI Chun-keung
(2) LO Shing-hoi

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Before: Deputy District Judge Joseph To in Court

Date: 7 March 2016 at 09:41 am

Present: Ms Sharoy Tam, Senior Public Prosecutor, for HKSAR/Director of Public Prosecution
Mr PUN Chi-ming Chase, instructed by Messrs Francis Kong & Co., assigned by the Director of Legal Aid, for the 2nd defendant

Offences: [1] – [3] Theft(盜竊罪)

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REASONS FOR SENTENCE

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Introduction

1. On 19 February 2016, the second defendant was convicted, on his pleas of guilty, of three charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 to 3). The prosecution offered no evidence against the first defendant in respect of the third charge, a chargethat was preferred jointly against both defendants and the only charge in which the first defendant was implicated. The first defendantwas accordingly found not guilty of that charge and was released from these proceedings.

Facts

2. On the morning of 22 December 2014, an employee of UPS Mr Chow drove a light goods vehicle SY8305 with 28 boxes of goods on boardto the car park on 1st floor, Phase II, Wyler Centre, Nos.192-200 Tai Lin Road, Kwai Chung. At about 11.16am he parked the vehicle at parking space L25,took out 15 boxes of goods, secured the middle door with a piece of rope and locked the rear door, and took the goods to 16th floor of the Centre for delivery. He returned to the vehicle at about 11.35am only to find the rope cut and one box of goods missing. The box contained electronic parts valued at about US$485 (equivalent to about HK$3,783). (Charge 1)

3. At about 11.54am on 20 April 2015, a transport worker Mr CY Chan parked a medium truck GX6630 at the parking space H8 on the groundfloor, Riley House, No.88 Lei Muk Road, Kwai Chung. He shut the tailgate and delivered some goods to the 7th floor of the building. When he returned to the lorry at about 12.03pm, he found the tailgate lowered and that three boxes of electronicparts worth about US$1,522, ie., about HK$11,871.6, had gone missing. (Charge 2)

4. At about 11.15am on 29 May 2015, a driver Mr CW Chan parked his medium truck SA502 at parking space T1, loading area, 6th floor, Grandtech Centre, No.8 On Ping Street, Shatin, and took some goods to the 19th floor for delivery. Upon his return to the truck at about 11.30am, he saw its tailgate opened and the second defendant jumping outof the rear compartment of the truck. Mr Chan shouted at the second defendant who fled. Mr Chan then checked the goods in the truckand found a carton box missing; the carton box contained two smaller carton boxes with electronic parts inside; they were worth aboutUS$420 (equivalent to about HK$3,276). Around 11.36am, a team of police officers on observation duty saw a male person running towarda private vehicle KN6516, which was parked outside the Centre; the man got onto the driver’s seat of the car. About a minute later,the second defendant walked towards KN6516 carrying the two smaller carton boxes with him, put them into the boot, and then boardedthe car. The police took action. The second defendant and the male person got out of the car to flee. The police intercepted themand recovered the stolen items; further, they located in the car park on the 1st floor of the Centre the large carton box that had held the two smaller carton boxes which had gone missing from Mr Chan’s truck. Under caution, the second defendant admitted having stolen the two boxes of goods. (Charge 3)

5. In a subsequent video recorded interview, the second defendant said he had committed the offences in the first and second chargesby himself. (Charges 1 and 2)

Mitigation

6. The second defendant was born in Hong Kong in April 1981 and is 34 years old at the time of his sentence. He has received educationup to Form One level and has worked as a kitchen staff. Prior to the commission of the present offences, he has, according to theAntecedent Statement, worked as a part-time worker with unstable income (but in his plea in mitigation, Mr Chase Pun appearing forthe second defendant submits that his client has worked as a chef on a casual basis making around $8,000 a month). The second defendantis married but has been separated from his wife since 2010; to that marriage was born a daughter who is now nine years old. He hasa girlfriend, who lives apart, with their three-year-old son. He has eight previous criminal conviction records, one of which wasfor the offence of theft, for which he was, in August 2014, sentenced to two weeks’ imprisonment suspended for 12 months. Thepresent three offences all took place during the period in which the suspended sentence was in force.

7. Mr Pun submits in mitigation that the second defendant has pleaded guilty to the three offences to express remorse, and by his pleas,a significant amount of valuable court’s time has been saved. There was, submits Mr Pun, no damage to the three vehicles concerned;and the value of the stolen goods totalled about HK$18,930. Mr Pun emphasizes that but for his own admission, there might not havebeen sufficient evidence to proceed against the second defendant on the first and second charges.

8. Next, Mr Pun refers to the following District Court cases, namely, (1) HKSAR v Choi Keng Pun[1](transl.), in which the defendant was sentenced to a total of 19 months’ imprisonment for six charges of theft from taxi, the effectiveoverall starting point for these theft offences being in excess of 27 months’ imprisonment, (2) HKSAR v Ho Siu Kin[2], where the defendant was sentenced to four months’ imprisonment for a charge of theft from vehicle, (3) HKSAR v Yu Kwok Yung and anor[3], a case in which the defendant smashed the windows of various cars to steal audio-visual equipment and was sentenced, after trial,to 30 months’ imprisonment for three charges of theft from vehicle.

9. Mr Pun argues that his client’s case is no worse than the theft from taxi case in HKSAR v Choi Keng Pun[4] in which a starting point of 15 months’ imprisonment was adopted for each incident of such thefts. Next, Mr Pun highlights thesignificant feature in HKSAR v Yu Kwok Yung and anor[5] in that both defendants were found to be recidivist or persistent offenders, whereas the defendant in the instant case is not.

Discussion

10. Undeniably, regular theft from vehicle cases are dealt with at the magistracy level, but it seems clear to the court that this isnot an ordinary theft from vehicle case. The three offences of which the second defendant stands convicted have spanned over somesix months. They could not have been chanced occurrences; the circumstances of their commission demonstrate beyond doubt a modusoperandi having been adopted by the second defendant. First, he targeted trucks carrying electronic parts only. Secondly, he tookadvantage of the vulnerable position of a lone driver-cum-deliveryman who must by necessity of his work leave the truck momentarilyunattended so as to deliver the goods; this group of truck drivers requires added protection from the court from thieves who arefocussed on them and who seek to exploit their temporary inability to keep the goods in safe custody. Thirdly, he must have keptthe locations concerned under observation in order to commit the offences during the short periods of time when the drivers weredelivering the goods. Fourthly, a getaway car was stationed near the location of the offence in the third charge, and whether ornot the driver has been a knowing participant or accomplice in the crime, the second defendant has attempted to use it.

11. There is, in light of the above factors, a much greater degree of calculation having been put into the commission of the presentoffences than the thefts from taxis in HKSAR v Choi Keng Pun[6](transl.). The value of the stolen items is a material sentencing consideration in financial offences, and it is noted that the valueof the goods concerned in this case cannot in any view be described as negligible. True it is that the second defendant has actedalone in the act of stealing in the three offences, but he has attempted to make use of a getaway car in the third charge which couldnot have been where it was by mere accident. Admittedly, the second defendant is not a recidivist, but he is not a person of previousgood character, either, and cannot be sentenced as if he were a person of clear record. Worse, he has committed the three offencesduring the suspension period of a prison term imposed on him for precisely the same offence to prevent him from further offending;he has shown no respect – if not outright disdain – to a formal order of the court.

12. In view of all the circumstances, the proper starting point for the first and second charges is one of 18 months’ imprisonmenteach, and the appropriate starting point for the third charge is 21 months’ imprisonment. The second defendant is entitled toone-third reduction in sentence for his guilty pleas; the sentences for the first two charges are therefore reduced to 12 months’imprisonment each and that of the third charges to 14 months’ imprisonment.

13. There are merits in Mr Pun’s submission that but for his admission, the second defendant might not have been prosecuted with thefirst two charges. An offender should be encouraged to render post-arrest co-operation to the police, and the sentences for thosecharges are each reduced by two months to 10 months’ imprisonment.

14. Having considered the principle of totality, it is ordered that the sentences in respect of the first and second charges be servedconcurrently, and that two months of the concurrent sentence for the first and second charges be served consecutively to the sentencefor the third charge. The total sentence for the three charges is one of 16 months’ imprisonment.

15. Considering the second defendant’s overall criminality and all the circumstances of the case, it is the court’s view that aneffective overall starting point of 24 months’ imprisonment is in order.

Conclusion

16. For the offences in the three charges of which he stands convicted, the second defendant is sentenced to 16 months’ imprisonment.

17. There is no reason not to activate the suspended sentence that has been breached by the three present offences. The two-week suspendedterm of imprisonment in KT/3861/2014 is activated and is ordered to be served consecutively to the 16 months’ imprisonment imposedon the second defendant in this case.

( Joseph To )
Deputy District Judge

[1] HKSAR v Choi Keng Pun (transl.) DCCC464/2015

[2] HKSAR v Ho Siu Kin DCCC1263/2011

[3] HKSAR v Yu Kwok Yung and anor DCCC 1243/2010

[4] HKSAR v Choi Keng Pun (transl.) DCCC464/2015

[5] HKSAR v Yu Kwok Yung and anor DCCC 1243/2010

[6] HKSAR v Choi Keng Pun (transl.) DCCC464/2015