HKSAR v. CHOI YAT WA

DCCC 122/2022

[2022] HKDC 1467

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 122 OF 2022

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REASONS FOR SENTENCE

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CHARGES

1.  The 2^nd Defendant (hereinafter as “D2”) is charged with 3 charges, namely Charges 3, 8 and 16 on the indictment.

2.  Charge 3: theft, contrary to section 9 of the Theft Ordinance, Cap 210. The particulars are that Pau Tik Lun (D1) and D2, on 29 April 2021, near Shek Kong Wai Car Park, San Sik Road, Tin Shui Wai, Yuen Long, New Territories, in Hong Kong, stole 2 private cars with registration number WB 4095 and RT 453, property belonging to Niku Ltd.

3.  Charge 8: theft, contrary to section 9 of the Theft Ordinance, Cap 210. The particulars are that D1 and D2, on 13 May 2021, outside Kau Kee Store, Ping Che, Ping Che Road, Ta Kwu Ling, New Territories, in Hong Kong, stole a private car with registration number WR 9611, property belonging to Pang Wai Keung.

4.  Charge 16: making off without payment, contrary to section 18C of the Theft Ordinance, Cap 210.  The particulars are that D2, on 13 May 2021, at Sinopec Petrol Filling Station, Ping Ha Road, Yuen Long, New Territories, in Hong Kong, knowing that payment on the spot was required or expected from them and with intent to avoid payment of the amount due, dishonestly made off without having paid as required or expected which was $932.8 Hong Kong currency, for the filing supplied to him by the said Sinopec Petrol Filling Station.

SUMMARY OF FACTS

5.  As the Prosecution alleges, which is agreed by the Defence, this case arose from a syndicate that used bounced cheques to make fraudulent rentals or purchase of cars.

Charge 3

6.  PW3 Cheung was a staff member of Niku Ltd, a car rental company.  On 29 April 2021, Cheung received Whatsapp messages from a person expressing interest in renting 2 cars and claimed that a person named “Poon Kan Fat”, would come to pick up the said cars.

7.  At around 10pm on the same day, D1 and D2 met Cheung near Shek Kong Wai Car Park, Tin Shui Wai.  D1 told Cheung that he wanted to rent 2 cars.  D1 gave a $16,000 cash cheque to Cheung, and showed Cheung an identity card and a driving license, which identified D1 as “Poon Kan Fat”.  D1 also showed him a bank statement as proof of address.  D1 then signed a car rental agreement with Cheung to rent 2 cars numbered WB 4095 and RT 453, both of which belonged to Niku Ltd and Niku Ltd purchased them as second-handed cars at $17,500 and $27,000 respectively.  After PW3 gave the car keys to D1, D1 and D2 respectively drove WB 4095 and RT 453 away and left.

8.  When Cheung presented the cheque to the bank on 30 April 2021, it bounced.  Cheung asked D1 about the cheque.  D1 said he would give Cheung another cheque or pay with other means later, but then he kept stalling and said he was busy.  Eventually, Cheung told D1 to return both cars at Tin Shui Wai MTR station on 5 May 2021.  D1 agreed but did not show up for the return.  D1 and D2 became out of reach since.

9.  On 6 and 8 May 2021, the Police found RT 463 and WB 4095 respectively.  Both cars’ ignition keys cannot be retrieved, but the cars themselves were intact.  The cars were returned to Cheung.

10.  Cheung identified D1 and D2 in the Identification Parades.

Charge 8

11.  In April 2020, PW8 Pang bought a private car numbered WR 9611 at $40,000 through the internet.  In February 2021, Pang published a Facebook post to sell the car at $30,000.

12.  On 12 May 2021, Pang received Facebook messages from a person with the username “Wing Chan”, who expressed interest in buying his car.  At around 9pm, Pang drove WR 9611 to Golden Arcade, Sham Shui Po to meet D1, who identified himself as “Wing Chan”.  D1 drove WR 9611 for a trial run with Pang at the rear passenger seat.  Afterwards, D1 agreed to buy WR 9611 for $30,000 and proposed completing the purchase at midnight that day.  Pang agreed.

13.  At around 11:50pm on the same day, Pang drove WR 9611 to Ping Che to meet D1, who drove a private car to get there with D2 as his passenger.  D2 remained in the car the whole time when D1 got off the car to deal with Pang.  D1 said the lighting there was not bright enough for him to inspect the car, so Pang suggested going to Kau Kee Store, Ping Che instead for the completion.  At around 00:05 am on 13 May 2021, they arrived at Kau Kee Store.  D1 gave a $30,000 cheque to Pang and showed Pang his identity card, which identified him as Yiu Ho Ming.  After signing the purchase agreement, D1 drove WR 9611 away.

14.  In the afternoon of 13 May 2021, Pang presented the cheque to the bank but the bank said it was dishonoured because it was issued out of a company account without company seal.  On 14 May 2021, Pang asked D1 about it.  D1 said he would pay again, but no payment was made.

15.  The whereabouts of WR 9611 were unknown until a citizen reported the car to Police on 24 May 2021. 

Charge 16

16.  After D1 obtained WR 9611 from Pang, D2 asked to borrow the car.  D1 agreed. At about 01:55am on 13 May 2021, D2 drove the car to the Sinopec Petrol Filling Station in Yuen Long for petrol refill.  There was only D2 in the car.  After the filling, D2 told the petrol station’s staff member that he would pay by cash.  Just when the staff was preparing the payment receipt, D2 drove the car away without making payment.  The price was $932.8.

Cautioned admissions

17.  On 15 May 2021, D2 was arrested for Charge 16.  Under caution, D2 said inter alia that he borrowed D1’s car WR 9611 for a joyride on his own.  Further, he was being playful when he left without paying for the petrol refill.

18.  In a cautioned interview dated 17 May 2021, D2 stated inter alia that he was being playful when he left the Petrol Station, and it was his first time doing so.  He further stated that the car he drove belonged to Yiu Ho Ming (D1).  At about 11 pm on 12 May 2021, he accompanied D1 to Ping Che to collect the car after the purchase.  After the completion, D2 asked D1 to lend him the car, and D1 agreed.  D2 drove the car by himself to the Petrol Station.  For having fun, he left without paying.  Afterwards, he parked the car at Harbour Plaza Resort City and returned the key to D1. 

19.  On 29 May 2021, D2 was arrested for stealing WR 9611 (Charge 8).  Under caution, D2 stated inter alia that D1 told him to join him in cheating someone out of the private car, and D1 would give him a reward of $3,000.

20.  D2 had 3 video-recorded interviews, during which he explained that he knew D1 through a friend in March 2021, and D1 told him that he had 2 people (Poon Kan Fat and Yiu Ho Ming) helping him in his scheme to cheat people out of their cars with forged cheques.  D2 on 12 May 2021 about 10 pm received a phone call from D1, seeking D2’s assistance and promised a reward of $3,000.  D1 drove a gold private car to pick up D2 at Tsim Sha Tsui and went to Ping Che together to meet the seller of the car.  D1 showed D2 the forged cheque used for WR 9611.  Upon arrival, D1 got off the car to deal with the seller, while D2 remained on the car the whole time.  After about 15 minutes, the purchase was completed.  D1 drove WR 9611 and D2 drove the gold private car to Harbour Plaza Resort City together.  Then, D2 returned the car key of the gold private car to D1 and went home.

21.  D2 also pointed out that he did not receive any reward from D1 afterwards, and he understood that he and D1 obtained Pang’s car by deception. He knew that they were breaking the law and agreed to act along because he was jobless.

PERSONAL BACKGROUND

22.  D2 was born in Hong Kong and aged 33.  He studied up to Form 5.  He lived with his 56-year-old father and 54-year-old mother, as well as his 26-year-old younger brother, 25-year-old younger sister, and his 27-year-old fiancée.  I am told that D2 has a new born daughter, who is about 11 months old.

23.  D2 was previously a chef earning about $15,000 per month.  Owing to the pandemic, he was dismissed, so was his fiancée.  He later worked as a part-time food deliveryman earning about $320 per day.  The burden of supporting the family fell on him, his father and his younger brother at the time.

24.  2 weeks before the date of the alleged Charge 3, D2 knew of his fiancée’s pregnancy.  D2 was then approached by D1 and committed the crime.  His fiancée gave birth in early 2022.

25.  D2 has 8 prior convictions concerning 3 occasions, 6 of the convictions are related to or connote dishonesty.  The latest one is burglary in 2020.  He was sentenced to 21 months’ imprisonment, and was released on 19 September 2020. The Prosecution informs the Court that D2 committed the offences in 2015 by using identity of someone else so as to obtain bank loans.  D2 agrees the first three previous offences were committed in such a context.

SENTENCING PRINCIPLES

Theft of vehicles

26.  In HKSAR v Yu Chi Chiu[1], the Court of Appeal pointed out that theft of vehicles is a serious crime, and that regardless of the purpose of thieves and whether the number of such thefts is rising sharply, the severity is reflected in the four reasons identified, namely:

(1) it is a valuable property,

(2) personal private space with possible storage of personal items and confidential information,

(3) a vehicle parked in public is prone to be a target of theft (though this is not directly applicable on the present facts),

(4) loss of vehicle causes great inconvenience to owners of private vehicles or when used for commercial/work purposes, the owner loses this paraphernalia for making money.

27.  Therefore, the CA pointed out that the starting point of 3 years’ imprisonment is not manifestly excessive, and is consistent with the general sentencing quantum laid down in cases.  See also Fan Chi Wai[2]and Cheng Chun Ming[3].

Making off without payment

28.  The maximum sentence for this offence is 3 years’ imprisonment.

29.  In HKSAR v Wong Kwok Leung[4], the defendant drove out of a car park without paying the parking fee but tailgating another vehicle.  The avoided fee was $608.  With the defendant’s 5 conviction records, the Court adopted a starting point of 6 weeks’ imprisonment.

30.  In HKSAR v Wong Kam Ho[5], the defendant admitted that he stole a motorcycle by breaking the keyhole cover using pliers and hotwiring, he drove into a car park without using an Octopus card or resident card.  When the motorcycle was clamped, he removed the same and drove out without paying.  A starting point of 3 months was imposed (which ran concurrently: §42).

MITIGATION

31.  Mr Lai, Counsel representing D2, submits that the value of the vehicles was not high, there was no evidence of change of license plate, no further loss or damage (particularly personal data or confidential information), no evidence of the car being driven for illegal use or on the road without third party insurance, and the role of D2 is relatively minor compared with D1. 

32.  In relation to Charge 16, Mr Lai suggests a starting point of no more than 3 months, and to consider a concurrent sentence.

33.  Mr Lai further suggests that there has been delay in proceeding the matter for various reasons, D2 implores the indulgence of the Court to grant a discretionary discount in sentencing, to allow D2’s immediate release to see his family and take care of his new-born daughter. 

DISCUSSION

34.  While D2 is not a persistent offender as such, he evidently did not “reform” himself, given that present offences were committed around in April/May 2021 and he was only released from custody on 19 September 2020.  It was submitted on his behalf that two weeks prior to committing Charge 3, his fiancée was pregnant.  Instead of finding a proper job or to earn money in a legitimate way, D2 chose to commit these offences.

35.  Beyond his timely guilty plea, to which D2 is entitled to a one-third discount, there are no further mitigating circumstances.  In particular, it is no excuse that D2 was under financial pressure.  D2 is in fact the author of the misfortune of not being able to see his new-born daughter for he committed these offences after he was told of his fiancée’s pregnancy.

36.  D2 asks this Court to consider there was a delay to these proceedings.  Mr Lai, quite fairly, only mentions the circumstances that caused the delay.  Mr Lai did not suggest that the delay was caused by the Prosecution.  I do not think that the development of these proceedings justifies any discount of sentence.

37.  With reference to the case of Yu Chi Chiu, in view of the circumstances of committing Charges 3 and 8, that D2 committed these offences in joint enterprise and with a certain degree of planning and with cheques that were bounced, as well as all the submissions made on D2’s behalf, I adopt a starting point of 2 years and 9 months’ imprisonment for each of Charges 3 and 8.  This Court also considers the fact that D2 committed these offences within 8 months since his release from prison, which is a factor of enhancing sentence, the starting point for each of Charges 3 and 8 is enhanced by 3 months.

38.  As regards Charge 16, having taken into account all the circumstances of the offence as well as mitigation submitted on D2’s behalf, I adopt a starting point of 3 months’ imprisonment for Charge 16.

39.  Given the timely plea tendered by D2, he is entitled to a one-third discount, so much so that the starting point of 3 years’ imprisonment for each of Charges 3 and 8 be reduced to each of 24 months’ imprisonment, and the starting point of 3 months’ imprisonment for Charge 16 be reduced to 2 months’ imprisonment.

40.  Although Charges 3 and 8 were committed by D2 together with the same person, and the same modus operandi was adopted, there is no reason to order a wholly concurrent sentence for these two offences.  That said, bearing in mind the totality principle to avoid the imposition of a crushing sentence, I consider that the sentence should be served partly concurrently.  As such, I order 4 months out of Charge 8 be served consecutively with that of Charge 3; and 2 months of Charge 16 be wholly consecutive to the combined sentence of Charges 3 and 8.

CONCLUSION

41.  As a result, the total sentence to be served by D2 is 30 months’ imprisonment.