HKSAR v LEE KIN YIP

DCCC 425/2021

[2022] HKDC 224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 425 OF 2021

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of theft of a vehicle, contrary to section 9 of the Theft Ordinance[1] and one charge of possession of an offensive weapon in a public place, namely a dagger, contrary to section 33 of the Public Order Ordinance[2].

2.  Full particulars of the offences are set out in the summary of facts dated 4 March 2022 admitted by the defendant today[3].

3.  In summary on 19 March 2018 Mr Wong lent his Lexus car registration mark KL 1214 to Mr Chan.    Around 1430 hours on 27 March 2018 Mr Chan parked KL 1214at an outdoor carpark at 30 Luen Wan Street in Mongkok.  The rules of the carpark required Mr Chan to leave the car key with the security guard on duty.

4.  At around 0230 hours on 28 March 2018, an unknown male approached Mr Chu, the security guard on duty, claiming to be Mr Chan’s friend and saying he needed to get the parking ticket from the car.  Mr Chu therefore gave him the car key of KL 1214.The car was then driven away from the carpark.

5.  CCTV of the carpark showed the unknown male approach Mr Chu; Mr Chu giving the key to the unknown male and the unknown male leaving the carpark and returning one minute later with another male who drove the car away[4]. 

6.  At 1827 hours on 29 March 2018 uniform police spotted the car outside Nos. 279-281 Reclamation Street in Mongkok at which time the car was bearing licence plate KL 779. 

7.  Inside the car the police found the dagger, which was a 36 cm long knife, on the floor of the rear left passenger seat.  A cover for the knife and a pair of licence plates UA 1678 were found on the floor of the front passenger seat[5].  

8.  The defendant’s fingerprint was later found on the licence plate UA 1678.

9.  CCTV footage of 279 Reclamation Street shows three persons alighting from the car at 1749 hours on 29 March 2018.

Arrest

10.  The defendant was arrested on 4 April 2018.  In a video recorded interview, the defendant admitted, inter alia, that when he walked past the carpark he noticed the car and decided to take the car away for fun; he told a person called Lau to help him by approaching the security guard and telling the security guard he had lost the parking ticket; Lau handed over the car to him in the early hours of 28 March 2018; on 29 March 2018 when driving the car he saw his friends and drove them to Reclamation Street where they stopped to go to a convenience store; when he saw uniformed police near the car he did not return to the car; he bought the knife with cover some time ago for collection purposes but forgot when and where and that he bought the licence plates KL779 and UA 1678. 

Mitigation

11.  In passing sentence, I have carefully considered the oral and written submissions of Mr Tze, including that the defendant who is 47, divorced and lives with his parents, is now serving sentence[6].   

12.  I have read the defendant’s mitigation letter in which he says he has reflected on his past and feels deeply regretful.  The defendant asks for a lenient sentence so that he may take care of his family.  Mr Tze informs the court the family having contracted Covid-19 are unable to attend court today to support the defendant and ask for a lenient sentence. 

Charge 1 - theft of vehicle

13.  There are no guidelines for offences of theft of vehicles, each case depending on its own facts.  Deterrent sentences are nevertheless required.   As was said in HKSAR v Cheng Chun Ming[7]:

“Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

14.  In Cheng Chun Ming the Court of Appeal upheld a starting point of 3 years’ imprisonment for the handling of one stolen vehicle, described as casual and opportunistic[8]. 

15.  Mr Tze refers the court to my reasons for sentence in HKSAR v Ngai Ming Yin and the cases referred to therein[9].  In Ngai Ming Yin I took a starting point of 2 years and 6 months’ imprisonment for theft of a motor cycle, valued at $51,900, where the ignition had been altered and a false number plate placed on the motorcycle and 2 years and 3 months’ imprisonment for theft of motorcycles valued at $61,000 and $68,000.

16.  The Lexus car was first registered in 2009 in the value of $310,400.  The parties have agreed that the estimated market value of the car in 2018 was around $40,000[10].

17.  Taking into account that the Lexus car is valued at around $40,000; the circumstances of the theft and that the licence plate was changed, no doubt to avoid detection, I am satisfied the proper starting point after trial is 2 years and 6 months’ imprisonment.

Charge 2 – possession of an offensive weapon in a public place

18.  Mr Tze submits the dagger was bought as a collectible item[11].  As indicated in court, taking into account that the dagger was found in the car and not at the home of the defendant and can in no way be described as ornamental, I do not accept this explanation.  Having taken instructions from the defendant, Mr Tze informs the court the defendant does not wish to give evidence as to why he possessed the dagger. 

19.  Section 33(2)(d)  of the Ordinance provides that a person convicted of an offence who is of the age of 25 years or more shall be sentenced to imprisonment for not more than 3 years.  There are no guideline sentences, the length of sentence depending on the facts of each case. 

20.  Mr Tze refers the court to HKSAR v Chan Ming Lok where on appeal against a sentence of 6 months’ imprisonment the court held a sentence of 4 months’ imprisonment after trial was appropriate for possession of a relatively small domestic knife where the court could not exclude the possibility the knife was a weapon of defence and by reason of the fact the defendant had never before been sentenced to imprisonment[12].

21.  Photographs of the dagger have been submitted to court.Clearly the dagger is not a relatively small domestic knife.  A dagger is capable of causing very serious harm.  The carrying of such a dagger in a public place is a serious offence.  I am satisfied the proper starting point after trial is 12 months’ imprisonment.

Persistent offender

22.  A starting point may be increased where the defendant is a persistent offender.  The defendant has appeared in court on nineteen occasions since 1991 amassing a total of thirty-one convictions.  Twenty convictions were prior to the arrest of the defendant for the present offences, including twelve convictions for offences of dishonesty, including theft from vehicle but not theft of vehicle and three convictions for possession of offensive weapons and prohibited weapons[13].

23.  I am satisfied the defendant is a persistent offender and enhance the starting points by 3 months to 2 years and 9 months’ imprisonment and 15 months’ imprisonment respectively.

24.  Giving the defendant full credit for his pleas of guilty reduces the sentence for theft to 1 year and 10 months’ imprisonment and for possession of offensive weapon to 10 months’ imprisonment.

Totality

25.  I am satisfied possession of the dagger adds to the culpability of the defendant. Consecutive sentences are appropriate. 

26.  Mr Tze asks the court to take into account that apart from the fingerprint found on the licence plate UA 1678, the only evidence against the defendant was his confession.  In asking for a discount in sentence Mr Tze refers the court to HKSAR v Tsang Kai On where the court gave a discount of 4 months’ imprisonment[14].

27.  This discount was disapproved of in HKSAR v Ma Ming where the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount[15].

28.  The Court of Appeal in HKSAR v Ngo Van Nam[16] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.

29.  The court in HKSAR v Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

30.  Taking into account the defendant’s confession, I am satisfied a total sentence of 2 years and 3 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[17].  

31.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 10 months’ imprisonment;

Charge 2 – 10 months’ imprisonment with 5 months consecutive and 5 months concurrent to charge 1.

32.  The total sentence is 2 years and 3 months’ imprisonment. 

33.  The defendant is currently serving a total sentence of 4 years, 3 months and 42 days’ imprisonment[18]. On 6 January 2021 the defendant was sentenced to 3 years’ imprisonment for burglary and 3 months’ imprisonment consecutive for failing to surrender to court. 

34.  The burglary was committed on 24 June 2018 and was therefore committed while on bail for the present offences.  I note the sentencing judge enhanced the sentence by reason of the defendant being a repeat offender of dishonest offences and that the burglary was committed jointly with two other persons but not because the offence was committed whilst on bail[19]. 

35.  On 12 April 2021 the defendant was sentenced to a total of 6 weeks’ imprisonment for two offences of failing to give information on demand which sentence was ordered to be served consecutive to the sentence imposed on 6 January 2021.

36.  On 30 April 2021 the defendant was sentenced to 12 months’ imprisonment for possession of offensive weapon which sentence was ordered to be served consecutive to the sentences imposed on 6 January 2021 and 12 April 2021[20]. 

37.  I note all the offences for which the defendant is now serving sentence were committed after the present offences.  From all the information available to the court it would appear the fact the offences were committed whilst on bail was not taken into account.

38.  In considering totality of sentence Mr Tze asks the court to take into account the delay in charging the defendant.  Ms Ma informs the court the defendant was charged on 23 March 2021, almost three years after he was arrested. 

39.  The delay appears to be the time taken by the Department of Justice in giving legal advice.  The file was submitted to the Department of Justice in January 2019 and advice given in February 2021.  No explanation has been given for taking two years to give advice, although I note the file was sent at the time the pandemic first broke out.

40.  Taking all these matters into account I am satisfied a total sentence to be served by the defendant of 5 years, 3 months and 42 days’ imprisonment is appropriate. Accordingly, I order 12 months’ imprisonment consecutive and 15 months’ imprisonment concurrent to the sentence the defendant is now serving.