HKSAR v. LEUNG CHUN MAN

DCCC 191/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 191 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  In this case the defendant, Leung Chun-man, faced seven counts of theft and one count of blackmail. He was convicted of all counts upon his plea and admission of facts.

2.  The crimes were committed within a span of 13 months.  All of them were somehow related to the Hong Kong International Airport.  The prosecution's case is that on five occasions the defendant stole the unattended luggage of five different airline stewardesses while they were taking the airport bus; he used the information obtained from the stolen property of one victim to blackmail her.  In addition, on two occasions in the Hong Kong International Airport, he stole the unattended properties of an airport staff and a traveller respectively.

Facts

Charge 1 - Theft

3.  At 1430 hours on 18 December 2013, PW1, Chan Oi-yi, an air stewardess, boarded an airport bus Route E22 at the Hong Kong International Airport.  When she alighted she found her suitcase missing. Amongst the personal properties inside the suitcase were two jackets and a booklet.  The total value of her loss was about HK$1,960.

4.  After the defendant was arrested on 29 January 2015, the police found at his home two items of Cathay Pacific uniform bearing the name "CHAN O Y", together with two books relating to Cathay Pacific.

5.  Under caution the defendant admitted to have followed an air stewardess to board a Route E21 bus and stole her suitcase when he alighted.  He kept the uniform and the Cathay Pacific materials but disposed of the rest in Hung Hom.

Charges 2 and 3 - Theft and Blackmail

6.  At 1915 hours on 17 December 2014, PW2 took the Route E23 airbus at Cathay City. She found her suitcase missing when she alighted.  The suitcase contained her clothing and a wallet, her personal documents including her Hong Kong Identity Card and bank cards, together with some cash in Hong Kong and Taiwan currencies.  Her loss added up to about HK$1,900 and NT$800.

7.  At about 1200 hours the next day, PW2 received a telephone message demanding her to provide the password of her Bank of China cards if she wanted to have her properties back, failing which her personal details would be given to the loan sharks and she would risk losing her job with the airline. Shortly afterwards PW2 received another message containing her personal particulars: her name, date of birth, Hong Kong ID Card number, Home Visit Permit number and address.

8.  After the defendant was arrested on 20 January 2015, under caution the defendant admitted to have stolen the suitcase of an air stewardess on board a Route E23 bus.  As a practical joke he used the information found in the documents from the suitcase to send messages via two telephone accounts to demand the owner of the suitcase to furnish him with the password to her bank card.

Charge 4 - Theft

9.  At about 1015 hours on 19 December 2014, while PW3 was working in the Departure Hall of the Passenger Terminal Building in the Hong Kong International Airport, she left her wallet on the staff counter unattended.  It was gone by 1430 hours.  Inside her wallet were her Hong Kong ID Card, other personal cards, her personalised Staff Octopus Card and cash of around $280.

10.  After the defendant was arrested later in the same day the Police found PW3's Octopus Card in the defendant's wallet.  Upon caution the defendant contended that he found the card under a flowerbed on Level 8 and he intended to use it for his personal gain. 

11.  In Court the defendant admitted to have stolen the wallet and all the items belonging to PW3. 

Charge 5 - Theft

12.  At about 1300 hours on the same day, i.e. 19 December 2014, while a foreign traveller (PW4) was resting near Aisle D, Level 7 of the Passenger Terminal Building, she placed her handbag in a trolley. A Chinese male took it away.  Inside her handbag she had US$900 and RUB4,000.

13.  At about 1313 hours a security staff of the airport found her handbag inside the toilet of the same floor but the cash had been taken away.

14.  At 1410 hours the defendant was arrested on the same floor of the Passenger Terminal building.  On his person the police found RUB3,150 hidden in his mobile phone cover.  He also had cash HK$4,790 in his wallet.

15.  Under caution the defendant admitted to have stolen a handbag from a trolley in Aisle D and extracted US$619 and RUB3,150 from it.  He kept the Russian Rubles on him. The Hong Kong dollars found on him were taken out of his Bank of China account after he exchanged the stolen US dollars into Hong Kong currency which was then paid into his Bank of China account.

16.  The Bank of China record confirmed that on the same day a sum of US dollars was converted into HK$4,791.37 and paid into the defendant's account, from which HK$4,791 was withdrawn on the same day.

17.  In Court the defendant pleaded guilty to the theft of the full sums of US$900 and RUB4,000 from the traveller, PW4.

18.  On 20 December 2014 the defendant was released on police bail.

Charge 6 - Theft

19.  On 20 January 2015, PW7 took the Route E23 bus to go to Cathay City some time before 1300 hours.  At about 1400 hours, when she alighted she found her suitcase missing.  Inside her suitcase were her personal belongings, amongst them her Cathay Pacific staff name tag "Giselle".

20.  At about 1700 hours of the same day two suitcases were found in Whampoa Garden.  One of them belonged to PW7.  Except for her staff name card, all her belongings were recovered. 

21.  After the defendant was arrested on 20 January 2015, police found the Cathay Pacific staff name tag "Giselle" in the defendant's bag.  Under caution the defendant stated that he found the tag on a bus and decided to keep it, but in a subsequent video recorded interview under caution the defendant admitted that on 20 January 2015 he stole the suitcase of an air stewardess on board a Route E23 bus.  He only took the name tag he found inside and discarded the rest.

Charge 7 - Theft

22.  On 20 January 2015 PW8 took the Route E23 bus to Cathay City at around 1250 hours.  When she alighted she found her suitcase missing.  Inside were her personal belongings and several items of her underwear. 

23.  It was later confirmed that one of the two suitcases referred to in paragraph 20 above belonged to PW8.  All of PW8's belongings were recovered except for three pairs of socks, three pairs of stockings and a brassiere.

24.  In Court the defendant admitted to have stolen PW8's suitcase and the items therein.

Charge 8 - Theft

25.  At about 1345 hours PW10 was riding the Route E23 bus when she found the luggage she placed in the lower deck had gone missing.  The suitcase containing PW10's garments and personal effects was subsequently seized from the defendant.

26.  In Court the defendant admitted to have stolen the suitcase.

The Arrest

27.  At around 1330 hours the defendant boarded the Route E23 bus at the Hung Hom Municipal Services Building.  After travelling in the bus for five minutes the defendant alighted at the Whampoa Garden stop.  A fellow traveller noticed the defendant came empty handed on board but took a piece of luggage at the lower deck when he alighted.  He therefore intercepted the defendant and reported the matter to the Police.  Under caution the defendant admitted to have stolen the suitcase.

Sentence

28.  The facts and circumstances of their commission - hence the criminality of individual cases - could vary to such great extent that the higher Courts have refrained from setting out clear sentencing guidelines for the offences of theft and blackmail.  Nonetheless, cases based on similar facts could be used as a gauge for sentencing.

The Theft Charges

29.  The offences have been committed over a period of 13 months.  The defendant had stolen from a total of six staff related to the tourist industry and one tourist.  Some of these offences were motivated by financial gain and some out of perversity.  It was certainly not done at a momentary lapse of judgment.  Even after the defendant was arrested by the police for Charges 3 and 4 on 19 December 2014, he committed three more offences - Charges 6 to 8 - on 20 January 2015.  In so doing, he had exhibited a cynical disregard for the law.

30.  In respect of Charges 1, 2, 6 to 8, the offences were committed on board the airport buses.  All the victims were airline stewardesses working for the same airline; it seemed likely that the defendant had targeted them, and at least in the case of Charges 1 and 2 the defendant admitted as such.

31.  In leaving their belongings on the lower deck of the airport bus (thus leaving them attended), the victims had acted in a manner expected of them while riding an airport bus since it would not be convenient or even physically feasible for all passengers to keep their belongings within their sights or carry with them to the upper deck.  They could not be accused of being careless with their properties and being unwitting victims for failing to keep their properties safe[1].

32.  In my view, the severity of these offences are more akin to pick-pocketing, which, according to the guideline laid down in Ngo Van Huy[2], warranted, in the absence of aggravating factors, a term of imprisonment of 12 to 15 months even for a first offender.  Therefore, in respect of Charges 1 and 2, I would adopt 12 months as a starting point, reduced to 8 months by reasons of the guilty plea.

33.  Charges 6 to 8 belong to a slightly different category in that they were committed while the defendant was on police bail after being arrested for two similar offences (i.e. Charges 4 to 5).  All three offences were committed in the same afternoon.  In my view, this blatant disregard for the law constituted an aggravating factor, and a higher starting point of 15 months is warranted. It is reduced to 10 months to reflect the plea of guilty.

Charge 3 - Blackmail

34.  Owing to the divergence of the circumstances for each individual case, again there is no sentencing guideline for the offence of blackmail[3].

35.  In this case the defendant admitted that he had used the information obtained from PW2's luggage to send the messages to the victim "for fun", a sentiment the victim would certainly not share.  However, there was no evidence that the defendant had intended to and in fact done anything to carry out his threat. 

36.  In the circumstances of this case, this Court accepts that this was done out of a sick sense of humour, and the present case is not the most serious of its kind.  Nonetheless, by sending intimidating messages to PW2, the defendant must have caused anxiety and even fear to the victim and, therefore, would warrant a short term of imprisonment.  In the circumstances, I would adopt 9 months as a starting point, reduced to 6 to take into account of his guilty plea.

Charges 4 and 5

37.  These two offences were both committed in the Departure Hall of the Passenger Terminal Building of the Hong Kong International Airport within the same day.  The victim of Charge 4 was an airport staff who had inadvertently left her wallet unattended. The defendant had taken advantage of the same by stealing it.  In my view, this was more of an opportunity crime.  The victim had been put to some inconvenience.  A short term of imprisonment in the form of 6 months would be sufficient to reflect its gravity.  The sentence is reduced to 4 months on a guilty plea.

38.  The victim of Charge 5 was a visitor to Hong Kong.  She was making use of the airport facility when the defendant took away her handbag.  She had lost a substantial amount of money and must have been put to considerable inconvenience.  It is understandable that such criminal conduct must have tarnished her opinion of Hong Kong. 

39.  Offences of this kind have been considered by the Hong Kong Courts.  In the case Basa Alejandro Sarmiento[4], a Magistracy appeal against a sentence order for theft from a passenger in the airport, Her Honour Judge Beeson approved the starting point of 16 months (reduced to 10 on a guilty plea) as proper since "it is important to have deterrence as a main consideration in a sentence of this nature".

40.  The deterrence principle adopted was followed by Deputy Judge Toh, as she then was, in Chung Pui Kau (transliteration)[5] where, on a Magistracy Appeal involving the theft of a visitor's bag in the airport. Her Honour agreed that theft in the airport was as serious offence which must be deterred in order to safeguard Hong Kong's international reputation.  In that case she considered 12 months' imprisonment an appropriate starting point.

41.  Having considered the amount of money stolen and the circumstances of this offence, I adopt 15 months as a starting point, it is reduced to 10 to reflect his guilty plea.

The Totality Principle

42.  The defendant had been convicted of a total of eight offences, most of them committed on separate occasions.  Technically they should be ordered to run consecutively.  However, since these offences are dealt with in one set of proceedings, the Court must consider the totality principle in sentence.

43.  In this regard I have in mind the following decisions as gauges for the total sentence to be ordered.

44.  In the case of Kong Hin Ming (transliteration)[6], the defendant was convicted of six counts of theft, all of which involved the theft of travellers' luggage in the Hong Kong International Airport.  On a guilty plea the trial magistrate adopted a starting point of 8 months for each count, and at the end sentenced him to a total of 33 months for the six offences.  On appeal the sentence order was considered appropriate.

45.  In Ying Run (transliteration)[7] the defendant pleaded guilty in the District Court to eight counts of theft, all of which involved theft of unattended luggage in the airport.  The sentencing judge adopted 18 months as a starting point for each count, and at the end ordered a total of 33 months' imprisonment for the whole of eight counts.

Sentencing Order

46.  In respect of Charges 1 and 2, they are of a similar nature and had been committed within a short time.  I would order them to run concurrently.  Since the circumstances relating to the commission of the Charge 3 arose from those of Charge 2, I will order 4 months of the Charge 3 to run consecutive to those of Charges 1 and 2.  Accordingly, the total sentence order for Charges 1 to 3 shall be 12 months.

47.  Charges 4 and 5 were committed in the same place within a very short span of time.  I consider it appropriate to order them to run concurrently, making a total of 10 months.  This order is to run consecutive to other sentence orders. 

48.  Charges 6 to 8 were committed within a very short time in the same day. I would, therefore, order the same to run concurrently, making a total of 10 months.  As they were committed while the defendant was on police bail and they were multiple offences committed in the same afternoon, I order the same to run consecutive to other sentence orders. 

49.  In all, the defendant is to serve a total of 32 months.

Other Mitigating Factors

50.  The defendant is an unemployed 30-year-old adult with a clear record. He is single and had been living with his parents and other siblings.  He had worked in the airport as a luggage worker for a year but had been dismissed after he was arrested for these offences.  I should point out that there is no evidence to suggest that his work in the airport had afforded him with the information or opportunity to commit the present offences. 

51.  The Court has been alerted by those representing him that the defendant has been known to Hong Kong Mental Health Service. Both the prosecution and the defence admitted that the defendant suffered from obsessive compulsive disorder and fetishism.  As this might be indicative of a pathological disorder, before passing sentence I called for a background report and the reports from a psychologist and a psychiatrist.

52.  Both the psychiatrist and the psychologist confirmed that the defendant had obsessive compulsive disorder but is currently in remission.  None suggested that the transgressions had any pathological cause.  The probation officer was of the view that the defendant had committed the offences out of greediness and being weak in self-control.

53.  In short, I do not see any extenuating factor which might justify exceptional clemency in this case.  The defendant was obviously in full command of his faculties and there is no suggestion that the fact that he committed the offences was anything other than his will to commit it.

54.  Therefore, for the present eight charges, he is sentenced to a total of 32 months' imprisonment to take effect immediately.