HKSAR v. LI KIN KEUNG

DCCC1151/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1151 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to 13 charges of theft, contrary to section 9 of the Theft Ordinance, Cap.210. That is, you have admitted to stealing electrical wires from the Tai Hing Estate in Tuen Mun on 13 different occasions.

2.  The property belonged to the Hong Kong Housing Authority.  Each of the electric wires that you stole were from the staircases in the housing estate, which were mounted on the walls near the staircase.

3.  For Charges 1 to 9, those offences were committed on 7 August 2011 and the wires were stolen from the 2nd to the 5th, 7th and 9th to 12th floors.

4.  For Charges 10 to 13, those offences were committed on 22 August 2011 and those wires were stolen from the 17th, 19th and 21st floors.

5.  On 22 August 2011 a security guard patrolling down the staircase heard something dropping onto the floor.  When he arrived at the landing, he found some electrical wire and a yellow recycle bag containing three pieces of electrical wires and a pair of scissors.  He found that the electrical wires had been stolen from the 22nd floor of the staircase wall.  He also saw that the electric wires mounted on the other two floors were also missing.

6.  Police were called and the CCTV of the building captured your image, Defendant, rushing down the staircase.

7.  This all occurred at about 7.45 am that day.

8.  At about 10.51 that morning, a police officer who had viewed the CCTV saw you and intercepted you at Yan Ching Street, Tuen Mun.

9.  He arrested and cautioned you for the offence of theft.  You remained silent.

10.  However, later that day at about 5.30 pm, another officer conducted a video recorded interview with you in relation to the theft of the electric wires at the Tai Hing Estate, that is the subject matter of the charges 10 to 13.

11.  You admitted that you had cut the electric wires with the pair of scissors on the floors between the 17th and 22nd floors. You discarded the scissors and wires, etc., on the staircase between the 16th and 17th floors because you were scared that you would be caught by the security guard who was walking down the stairs.

12.  You admitted that you had brought along with you a recycle bag, a plastic bag, a pair of scissors and a pair of gloves to commit the offences and that those items seized at the scene all belonged to you.

13.  You further admitted that you had committed other similar offences, and those offences related to the offences on 7 August, which are in relation to Charges 1 to 9. You admitted that you cut off all the electric wires from those floors.

14.  Your solicitor, Mr Yeung, has mitigated fully and thoroughly on your behalf today.  I have taken into account all that he has had to say.

15.  You are 34 years of age and have four previous convictions, of which one is similar.  That conviction dates back to the year 2000 to which you were fined $2,000.  The other offences relate to drugs.  You have never been sentenced to imprisonment before.

16.  You are divorced with a 3-year-old daughter.  Prior to the commission of this offence, you had previously worked at a food stall, earning $6,500 a month.

17.  I was informed by your solicitor Mr Yeung that the food stall was under renovation for the month of June and thereafter you became unemployed.

18.  You did not look for further employment and, therefore, you took a shortcut to earn money and stole wires with the intention of selling it.  For the offences and wires you stole on 7 August, you had, in fact, done just that.

19.  You had thought that the stealing of these electric wires was a very trivial matter.  In your letter written to me, you know now and realise that the offence is a serious one and, as you have been in custody now for some 3 months, you very much regret your wrongdoing.

20.  Your strongest mitigation is, of course, your plea of guilty to these charges and your co-operation with the police.

21.  Mr Yeung your solicitor submits that the amount of electric wires stolen was small in amount and in value.

22.  It was mentioned by Mr Yeung that you would have like to have made restitution.  However, you do not have any funds.

23.  In the present case before me, there is an application by the prosecution for an enhancement of the sentence in view of the prevalence of this offence, and the nature and extent of any harm caused, directly or indirectly, to any person by the act in respect of which you have been so convicted under section 27(2)(a) and (c) of the Organised and Serious Crimes Ordinance, Cap.455.

24.  In respect of the prevalence of these offences, the statistics have been set out in the re-amended summary of facts which have been admitted by you.  The nature and extent of any harm caused are also set out in the re-amended summary of facts.

25.  At paragraph 6, the statistics are laid out therein of cases involving theft of all kinds of metals, which include copper, fire hose caps, copper wire taps, stainless steel and electric wires in the New Territories and New Territories North, which is, of course, where Tuen Mun is situated.

26.  The statistics were compiled by the police and since 2009 it shows a rapid increase in cases involving theft of all - I emphasise - kinds of metals.

27.  The total in 2009 in the New Territories North was 67, in 2010 the New Territories North was 102, and the total in 2011 up to the third quarter is 117.

28.  Statistics for theft of electric wires in housing estates in New Territories North and New Territories South since 2009 are laid out in paragraph 7.

29.  I refer to the figures in New Territories North.  The total in 2009 was 15, the total in 2010 was 30, and the total in 2011 up to the third quarter is 22.

30.  In view of these statistics, the prosecution asks for the sentence to be enhanced.

31.  Mr Yeung has accepted that there is some prevalence, particularly since 2009 to 2010 it has been doubled, but he says that as regards the year 2011 up to the third quarter, the figure is much the same as it was in 2010 up to the third quarter.

32.  Therefore, there is not a rapid increase but it remains about the same as 2010, which of course, he accepts is a twofold increase since 2009.

33.  Although we are almost at the end of the year, there are no figures up to the fourth quarter of 2011.

34.  Mr Yeung asks for this court, if the court is going to enhance the sentence, not to enhance the sentence by 50 per cent, but by a much lower figure of 20 per cent, taking into account that there is a progressive prevalence.

35.  Mr Yeung has relied upon the case HKSAR v Cheung King Lung, CACC 67/2002, as authority for this where the Honourable Stock JA, as he then was, gave judgment for the court.

36.  Referring to paragraph 31 of that judgment, the court said that where there was no evidence showing that an offence had the tendency of increasing rapidly to the extent of becoming prevalent, a deterrent sentence was required, but that where the offence was becoming progressively prevalent, a 50 per cent enhancement was probably not justified without some forewarning by the court.

37.  As the statistics in this case do not show there is a rapidly increasing trend in offences of this kind, Mr Yeung asks me not to take a 50 per cent increase as it is not warranted.

38.  In respect to the other limb to which enhancement is applied for, is the nature and extent of any harm caused directly or indirectly to any person by the act in respect of the offence to which he has been so convicted.  The prosecution relies on the matters and facts stated at paragraph 8 in the re-amended summary of facts.

39.  Briefly, the wires stolen were earth wires.   They formed part of the lighting supply at the corridor and staircases in the building.  Even with the removal of the earth wires, the lighting could still continue.

40.  However, for the purposes of preventing an electric shock to a human-being if there was a leakage of electric current, the earth wire is there for protection, so that if the earth wires were there, the risk of being electrocuted or receiving an electric shock would be very much more reduced or even none at all.

41.  However, if there is a leakage of electricity and there are no earth wires present, then people or persons touching metal pipes or metal railings in that vicinity will and can receive electric shocks and/or electrocution.  That is, that the metal pipes and electric wires and metal railings become “live” as electric current flows to the earth through the humans and thus result in an electric shock and electrocution.

42.  Therefore, cutting of electric wires, if there is a leakage of electrical current, will certainly increase the chance of electric shock and electrocution.

43.  If, however, there is no leakage of electric current, cutting of electric earth wires will not result in electric shock or electrocution, even if a person simultaneously touches the metal pipe or electric wires or the metal railing, which will not be “live”.

44.  Therefore, the harm is the increase of electric shock and electrocution by the removal of the earth wires, and in respect of this particular point of the consequence of removing earth wires, Mr Kwok for the prosecution has relied upon a Magistracy appeal case which is in Chinese, which he has himself translated paragraph 7, 11, 12 and 13 into English for me, by the name referred to as HKSAR v Wong Sai Cheung HCMA 768/2007.

45.  In that case, the facts were that the defendant used a pair of scissors to cut the earth electric wire in a residential building. The electric wire was hanging on the wall and was leading into a domestic flat. The wire connected the electricity in the flat to the meter outside the flat.

46.  The magistrate in that case mentioned that the earth wire was a life-saving appliance and served its functions to avoid casualties when electricity leaked and the danger if electricity did leak, was that someone would get killed or injured by an electric shock.

47.  He, therefore, considered the stealing of an earth wire a very serious misconduct which endangers others’ lives and that the sentence imposed should reflect the gravity of the offence.

48.  He adopted a starting point of 15 months’ imprisonment.

49.  The High Court judge, Deputy Judge Derrick Pang, as he then was, accepted that the 15 months’ imprisonment was not improper.

50.  I am guided by that case as to the appropriate sentence.

51.  I accept that the value of the property in the present case was small.  The wires had cost about $100 each, so for the 13 floors, there was about $1,300 in total.  The repair costs to the wires totalled $900.

52.  However, in this case, the length of the wires was 10 metres long and not as in HKSAR v Wong Sai Cheung where the wires were only some 9 inches long.

53.  It must be taken into account that the dangers caused by the removal of the earth wire are serious.  I agree with the observations made in the case of Wong Sai Cheung.

54.  The removal of the earth wire can caused extreme harm to anybody who may touch the “live” metal and cause them to be electrocuted and, at the worst-case scenario, be killed.

55.  The difference Wong Sai Cheung and the present case is that in Wong the stealing of wire was from one floor while in your case, Defendant, you stole wires from 13 different floors.  The danger was therefore, much greater as there were many more floors and many more people who were likely to be affected.

56.  Furthermore, this does not appear to be a private building.  This is a public housing estate where there are many, many people living there.  Had it not been for the astuteness of the security guards, then perhaps the missing wires may not have been detected so quickly.

57.  In considering sentence, I take into account the mitigation advanced on your behalf.  I re-iterate your strongest plea in mitigation is your plea of guilty.

58.  I am satisfied that this is a case to which an enhancement of sentence is appropriate.  From the evidence before me, the offence does not seem to be increasing rapidly.  I therefore accept that a 50 per cent increase in sentence is not warranted.

59.  However, the offence is progressively prevalent and I in the circumstances I would adopt a 20 per cent enhancement of sentence.

60.  There were 13 charges committed over two separate days in two separate housing estate blocks.  I must take into account the principle of totality.

61.  Taking into account Wong Sai Cheung, I adopt 15 months’ imprisonment as a starting point, had I convicted you after trial.  That is for each charge. 

62.  However, giving you full credit for your plea of guilty, that 15 months shall be reduced to 10 months’ imprisonment.

63.  As there are 13 charges, as I mentioned, I take into account the principle of totality and I consider that a 21-month sentence after trial would be appropriate for these 13 offences.  In applying a 20 per cent enhancement on that, that would be about 4 months, so the total term of imprisonment would be 25 months.

64.  In arriving at the figure of 21 months, I shall take 10 months of Charge 9 to run consecutive to the other charges and 5 months of Charge 13 to run consecutive to the other charges, which makes a total of 25 months, all remaining terms to be run concurrent to each other.

65.  You are sentenced to 25 months imprisonment.