HKSAR v. HO SHEK HIM

DCCC 161/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 161 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to Charges 1 to 10 and 17 to 20 on this indictment. These constitute charges of theft, attempted theft, and one charge of going equipped for stealing.

2.  The offences themselves all involve thefts or attempted thefts from buses that were parked overnight. 

3.  On 8 December last year the defendant was arrested near his home in Siu Sai Wan in Hong Kong.  He was found with a pair of scissors in his jacket.  Those were scissors that would be used for breaking into buses and his possession of those constitutes the 20th charge.

4.  Under caution, he admitted the offences of theft and attempted theft contained in Charges 1 to 10 and 17 to 19.  As far as Charge 20 is concerned, that related to possession of the scissors, which he said he would use to prise open bus windows so he could steal from them.

5.  All the charges of theft and attempted theft relate to offences committed by attempting to break into buses or breaking in and stealing from them.  These buses were usually parked overnight.

6.  Brief details of the offences can be seen from the facts, but are as follows.

7.  Charges 1 and 2 relate to two buses parked at a car park in Ngau Tau Kok and that was on the evening of 26 October.  The windows of the driver’s seat of both buses were prised, but nothing was stolen from them.

8.  Charge 3 related to a bus parked in Kowloon City on the evening of 28 October and the driver’s window seat was prised open and cash of around $100 had been taken from the bus.

9.  Charges 4 to 8 relate to a total of five buses parked overnight on 30 October in The Metropolis, Hung Hom.  All five buses had the driver’s windows prised.  A total of three Octopus cards were missing from three of the buses.  The remaining two buses had no items taken.

10.  Charges 9 and 10 relate to two buses parked overnight on 30 October in Kwun Tong.  Both buses were entered and an Octopus card taken from each bus.

11.  Charges 17 and 18 relate to two buses parked in Ngau Tau Kok in Kowloon overnight on 12 November 2015.  One bus had the driver’s window prised and an Octopus card and phone was stolen.  The other vehicle was entered but nothing was stolen.

12.  Charge 19 relates to theft of an Octopus card from a bus on 8 December 2015.

13.  So the defendant made admissions to all the charges.  He said he had done it because he had just been released from prison and had no money.  He had used the Octopus cards to buy items such as drinks, sold the mobile phone for about $500 and he also used some of the Octopus cards -- he had redeemed them and their remaining balances at MTR stations.

14.  The offences represent a number of petty thefts from buses over the period from October through to December of last year.

15.  The defendant’s antecedents have been proved in court.  He is now aged 59.  He is unemployed.  He is not a drug addict and said to reside with his family in Siu Hei House in Siu Sai Wan Estate.

16.  The defendant’s criminal record is extensive and constitutes a total of 32 appearances in court, with a total of 156 cases of theft and attempted theft, dating back to 1997.  The defendant has been sentenced to a number of sentences of imprisonment for the offence of attempted theft or theft from a vehicle.  Offences in the period of 1997 through to about the year 2007 were sentences of imprisonment up to 8 months’ imprisonment. 

17.  In 2010, there was a record in the record of convictions that reads as follows:  2 July 2010, a sentence of 6 months each, A to T, total 30 months’ imprisonment; and on 10 September 2010 there is a record of 16 months’ imprisonment being imposed. 

18.  On 18 February 2013 there appears to be a total of 24 months’ imprisonment imposed in a District Court case for similar offences, and these are described as offences between A and U alphabetically, which would be over 20 offences.  For each offence in respect of the offences in 2013, a sentence of 10 months’ imprisonment was imposed.

19.  As recently as 2015, the defendant received sentences of 8 months’ imprisonment for theft from a vehicle and in March of that year 6 months’ imprisonment for theft from a vehicle.

20.  It can be seen from this that the defendant has a long history of committing offences of this nature.  It can also be seen that previous sentences of imprisonment, however lengthy, have failed to deter the defendant, although it would appear that the total number of offences in the sentences in 2010 and 2013 exceed the number of offences to which the defendant has pleaded guilty on this occasion.  I am dealing with 14 offences on this occasion.

21.  As far as the defendant’s mitigation is concerned, he has admitted all these offences and has admitted them since he has first been charged with them.  It is said these are minor offences.  The most expensive item, the most valuable item would be a mobile phone. Otherwise, they involve a small amount of cash and money taken off Octopus cards.  The offences are committed over a period of some 1½ months and the defendant is remorseful and asks for leniency.

22.  As far as the approach to sentence is concerned, there is no existing guideline sentence for theft or attempted theft in respect of theft from items such as vehicles and, in the past, for this defendant, sentences in the range of between 3 to 10 months’ imprisonment have been imposed for each of these offences.

23.  The question that really must be addressed is, given the number of offences, is what the correct overall totality of sentence should be for this particular episode of criminality.

24.  It is clear that the previous sentencing of the courts has not had any effect on the defendant’s desire to continue this form of offending.  Yet, the level of sentence, both for each individual offence and the overall sentence, must remain within proportion to the nature of the criminality involved. 

25.  It would appear that the aim of sentencing in this case would be, firstly, to attempt to deter the defendant from committing any further offences of this nature and, secondly, to set out a period of detention which will perhaps protect the public for a bit longer.

26.  However, in setting that figure, I must bear in mind the defendant’s plea of guilty, the number of offences to which he has pleaded guilty to, and the low value of items actually taken. 

27.  What I shall do is a sentence as follows.

28.  On each offence to which the defendant has pleaded guilty, I will take a starting point of 15 months’ imprisonment and reduce that to 10 months’ imprisonment for his plea of guilty.

29.  All the offences are independent and separate, so, on the face of them, they can be served consecutively.  To do that would clearly be wrong and would lead to an excessive sentence.

30.  I consider the overall total correct sentence for this episode of criminality by this defendant should be one of 30 months’ imprisonment.

31.  I will achieve that by making the sentences to run as follows:

(1) Charges 1 to 3 will be served concurrently, one to another;

(2) Charges 4 to 10 will be served concurrently, one to another; and

(3) Charges 17 to 20 will be served concurrently, one to another;

(4) but Charges 1 to 3, 4 to 10 and 17 to 20 will run consecutively to each other leading to a total of 30 months’ imprisonment.

 

 

(T Casewell) District Judge