HKSAR v. LEUNG KING CHEONG

DCCC 407 & 620/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 407 & 620 OF 2017

____________

____________

REASONS FOR SENTENCE

1.  In DCCC 407/2017, the defendant pleaded guilty to 2 charges of "Attempted burglary". He tried to burgle 2 residential flats located at Shau Kei Wan.

2.  In DCCC 620/2017, the defendant pleaded guilty to 6 charges of "Theft" (Charges 1 to 6) and 1 charge of "Forgery of document[1]" (Charge 7).  He stole valuable items from motor vehicles parked on the streets.  He also drove away a private car parked on the street.

Summary of Facts

DCCC 407/2017

3.  About 6:20 p.m. on 16 February 2017, SPC 47870 (PW1) and colleagues were patrolling inside Tuck Wun Mansion ("the Building") situated at Shau Kei Wan Road, Shau Kei Wan.

4.  On the 8^th Floor of the Building, PW1 saw the defendant trying to open the metal gate of Flat B but without success.  This is Charge 1.

5.  The defendant then walked down to the 7^th Floor.  PW1 followed and saw him trying to open the metal gate of Flat B but without success.  This is Charge 2.

6.  The defendant walked down to the 6^th Floor.  When he noticed the presence of PW1 and his colleagues, he walked down the stairs quickly.  Eventually, PW1 intercepted and arrested the defendant.  Under caution, he said "Ah Sir, I know I was wrong.  I came up there to see whether there was anything to steal, but got arrested by you.  Please give me a chance."

DCCC 620/2017

Charges 1, 2, 4 and 6

7.  On the respective dates and locations particularized in Charges 1, 2, 4 and 6, the defendant stole the respective properties from the respective private cars as described in the Summary of Facts.

Charge 3

8.  Amongst the stolen properties particularized in Charge 2 was a Bank of China credit card, which belonged to Madam CHOW (PW3).  The defendant used PW3's credit card to purchase electronic goods (valued at $18,000 in total) in Mongkok.

Charge 5

9.  Mr. SO (PW5) owned a Tesla private car with plate number "US 4459" ("Car 4").  The registered owner of Car 4 was PW5's company (Success Year Development Limited).  PW5 had 2 car keys and he placed one inside Car 4.  At 5:30 p.m. on 22 May 2017, PW5 parked Car 4 at the location particularized in Charge 5.  He did not lock the car doors.  The defendant drove Car 4 away on the same day.

Arrest of the Defendant

10.  In the afternoon on 26 May 2017, PC 58648 (PW14) stopped the defendant in Mongkok.  He found the defendant being the person captured by the CCTV footage in relation to the above offences.

11.  Later on in the same evening, the defendant led police officers to Nam Shan Estate Carpark, where Car 4 was located.  At that time, registration plates "UG 9210" were displayed on Car 4.  This is Charge 7.

Admissions

12.  In his video recorded interviews, the defendant admitted having stolen the respective properties from the respective private cars since their doors were not locked (i.e. Charges 1, 2, 4 and 6).  Regarding Charge 3, the defendant admitted having used PW3's credit card to purchase electronic goods from a friend named "Fat Kit".  He then let "Fat Kit" keep the credit card.  As to Charge 5, the defendant claimed that since the doors of Car 4 were not locked, he went inside and found a key in the ignition slot.  He then drove it away.  In respect of Charge 7, the defendant claimed that he once saw a Tesla private car bearing plate number "UG 9210", which looked similar to Car 4.  He therefore made a set of "UG 9210" plates and displayed them on Car 4 to conceal its status as a stolen vehicle.

Mitigation & Sentence

13.  The defendant is 50, divorced and resides alone.  He has 10 conviction records, which involved 5 theft-related offences.  Defence counsel Ms. WONG informed me that the defendant was diagnosed with testicular cancer in 2015 and has been receiving treatment from practitioners of Chinese medicine in the mainland[2].

14.  In mitigation, Ms. WONG submitted that the defendant has managed to stay out of trouble since 2005.  He committed the present offences to fund his medical and living expenses. Regarding the 2 "Attempted burglary" charges, Ms. WONG submitted that both offences were committed on the same day in the same building.  No tools were used and no one was alarmed.  The execution by the defendant was primitive.

15.  Ms. WONG further submitted that Charges 1, 2, 4 and 6 in DCCC 620/2017 were all opportunistic "theft from vehicle" because the owners forgot to lock the car doors.  In relation to Charge 3, the defendant did not know that there were credit cards in the handbag when he took it.  He used only 1 of the 2 credit cards he stole.  In Charge 5, the defendant has led the Police to retrieve the stolen car.

16.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs.  Being a released prisoner, the defendant must have known how to seek help.

DCCC 407/2017

17.  The normal starting point for domestic burglary is 3 years' imprisonment.  I have borne in mind the comments made by the Court of Appeal in HKSAR v Po Yan Chuen [2002] 2 HKC 172 and HKSAR v NGAI Yiu Choi CACC 370/2010 on sentencing of "Attempted burglary".  I accept that in the present case, no one was alarmed by the defendant's activities and that he did no more than trying his luck with the metal gates of the flats.  On the other hand, he tried to burgle 2 flats in the same building in the same evening[3].  In other words, the mitigating aspect is somewhat offset by the aggravating factors

18.  I consider the appropriate starting point for each charge to be 32 months' imprisonment.  With the indication of guilty pleas before trial, I grant a 25% discount, reducing the sentence to 24 months[4].  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 24 months' imprisonment for each charge.

19.  Having considered the totality principle, I order the sentences of both charges to run concurrently.

DCCC 620/2017

Charges 1, 2, 4 and 6

20.  Ms. WONG has referred me to the decision of Barnes J in HKSAR v CHEUNG Chi Hung HCMA 55/2008.  I accept that the defendant did not damage the motor vehicles in the course of stealing; however, he is not new to this crime.  His last conviction was in fact "Attempted theft from vehicle".  Having considered the value of the stolen properties, I adopt a starting point of 9 months for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 6 months.  I sentence the defendant to 6 months' imprisonment for each charge.

Charge 3

21.  In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total[5].

22.  I have borne in mind the value and nature of the products purchased by the defendant.  I consider 2.5 years' imprisonment to be the appropriate starting point.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months. I sentence the defendant to 20 months' imprisonment for this charge.

Charges 5 and 7

23.  Finding the car doors unlocked and a key in the ignition slot is neither an excuse nor a mitigating factor for stealing a motor vehicle.  The defendant is no stranger to "Theft of motor vehicle" offences either.  Bearing in mind that he led the Police to retrieve Car 4, I adopt a starting point of 24 months' and 6 months' imprisonment respectively for Charges 5 and 7.  A one-third discount is given for the guilty pleas, reducing the sentence to 16 months and 4 months[6]. I sentence the defendant to 16 months' and 4 months' imprisonment for these 2 charges respectively.

24.  I consider a global starting point of 3.5 years' imprisonment appropriate for Charges 1 to 7.  With the guilty pleas, the overall sentence is reduced to 28 months.  To achieve this, I order the sentences to run in the following manner :-

(i) Charges 1, 2, 4 and 6 concurrent;

(ii) 2 months in Charges 1, 2, 4 and 6 consecutive to Charge 3; and

(iii) Charges 5 and 7 concurrent; but 6 months consecutive to Charges 1, 2, 3, 4 and 6.

Thus, arriving at a total prison term of 28 months for all 7 charges.

Overall Totality

25.  The defendant committed the offences in DCCC 620/2017 whilst on bail.  Having considered the overall totality of imprisonment in both cases, I order 10 months in DCCC 407/2017 to be served concurrent with the prison term in DCCC 620/2017.  In other words, the total prison term for both cases is 42 months.