HKSAR v. CHAN TAI MING AND ANOTHER

DCCC 261/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.261 OF 2011

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Reasons for Sentence

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1. The 2 defendants in this case faced one joint charge of Attempted Theft. Particulars of the charge are that the defendants on 11^th January 2011, near lamppost EB1092, Choi Yuen Road, Sheung Shui, New Territories attempted to steal one light goods vehicle bearing registration number NT8197, the property belonging to Yan Kuen Hing.

2. There is an alternative charge of taking conveyance without authority but upon the defendants pleading guilty to charge 1, there was no need to deal with this charge which was ordered to lie on the file.

3. On the first day of trial, D1 pleaded guilty to charge 1, admitted to the summary of facts prepared for his plea and was convicted. The trial was then adjourned for matters to be dealt with in preparation of the trial of D2.

4. D2 eventually also pleaded guilty to charge 1 when his trial was to commence, pleaded guilty to a set of facts prepared for his plea and was convicted.

Facts

5. The driver, Mr. Chan, of the LGV in question parked the vehicle near Lamppost EB1092, Choi Yuen Road at around 5pm on 10^th January 2011. Mr. Chan locked the car and then left.

6. At around 1:25am on 11^th January, Police officers spotted D1 alighting from a private car (license plate number LH9598) and approached the LGV. D1 walked to the front and then the rear side of the LGV and squatted down for a few minutes. D2 then alighted from the same private car. D1 then opened the door of the LGV and entered it, while D2 stayed outside, looking around.

7. After a few minutes, D2 left the scene walking along Choi Yuen Road towards the direction of 寶石湖道. D1 remained inside the LGV in the meantime.

8. The Police approached D1. Upon seeing the Police officers, D1 tried to escape, throwing a black shoulder bag into the grass while attempted to run away. D1 was finally intercepted near Lamppost EB1092 Choi Yuen Road. D1 was wearing a pair of gloves.

9. The black shoulder bag that D1 threw away was recovered. Inside were found a metal pipe, 2 pliers and a screwdriver. A torch light and a spanner were also found in the right pocket of D1’s jacket. Another screwdriver that did not belong to the driver or owner of the LGV was found inside the LGV.

10. Upon checking, Police officers found that the license plate of the LGV had been switched to one showing KG1552. The 2 original number plates of NT8197 were found inside the LGV.

11. D1 was arrested and claimed under caution that he intended to steal the audio player on the LGV.

12. Meanwhile, D2 had boarded a taxi on Choi Yuen Road, telling the driver to go to North District Hospital北區醫院. Police officers managed to intercept the taxi and arrested D2, who remained silent under caution. The car key to a vehicle with license plate number LH9598 was found on D2.

13. In a subsequent video recorded interview, D1 claimed under caution that D2 had asked him to have night snack together at about 11pm on 10^th January. That was why D1 had driven LH9598 to Sheung Shui. After they ate, D1 parked the car at Choi Yuen Road and found the LGV. Seeing that the LGV was unlocked, D1 thought he would steal the audio player at first, but later changed his mind and decided to steal the LGV instead. D1 therefore changed the number plates of the LGV and he intended to drive it around for a while before abandoning it.

Previous convictions

14. D1 has 18 previous criminal convictions, 2 relating to dishonesty. D1 first transgressed the law when he was 17 years old. His criminal records grew between 18 and 36. Since 2000, D1 had managed to stay away from crime for 6 years until he was convicted in 2006 for possession of dangerous drugs and resisting a Police officer when he was given a suspended sentence and fined, respectively.

15. D2 was 19 years old when he first committed the offence of fighting in a public place and was bound over. D2 was convicted in 1992 of driving related offences. For the next 9 years, D2 did not commit any crime. Then in 2001, D2 was fined for theft from vehicle and for making off without payment. It was another 3 years before D2 was found guilty of theft in 2004 and jailed for 3 months. In all, D2 has 9 previous convictions from 5 appearances in court.

Mitigation

D1

16. D1 is now 47 years old. He was born in Hong Kong. D1 was married and is the father of 4 children. Unfortunately, his wife passed away in mid-2011 after suffering a heart attack. Prior to the defendant being remanded for the present case, D1 had been looking after his four children who are aged between 10 and 20 years old.

17. Before the passing of his wife, the defendant worked as a transportation and decoration worker. After his wife’s death, the defendant had to stay home to look after the kids and so was forced to be on CSSA.

18. The defendant’s 2 sons are living in 兒童之家, while the defendant’s 70 odd year old mother had come back from the United States to look after his daughter.

19. Mr. Boey for D1 said that the main mitigating factor in D1’s case is his frank admission to the offence and his cooperation with the Police after his arrest. Although D1 has a long criminal record, only 2 are related to dishonesty with the nearest one in 1991. The rest were minor offences such as gambling and traffic related offences. As mentioned above, for a period of about 6 years between 2000 and 2006, the defendant did not commit any criminal offence.

20. Mr. Boey referred to 2 cases, both are for taking conveyance without authority. It is Mr. Boey’s submission that the facts in our present case are similar to that of taking conveyance and as such the cases are useful in arriving at the right sentence.

21. In R v Leung Yam Hung, a 1986 case, the applicant was convicted after trial of 2 offences: wounding with intent and taking conveyance without authority. What happened in that case was that the applicant had taken a car and used it to drive some attackers to the scene of a fight. For reasons not relevant for our present purpose, the conviction for the wounding charge was set aside.

22. The original sentence imposed by the learned trial judge on the taking conveyance charge was that of 12 months’ imprisonment. One of the reasons given by the learned trial judge for the sentence was that the taking of the car was for the purpose of committing a serious crime, as oppose to taking it for a joy ride.

23. Once the Court of Appeal overturned the conviction for the wounding charge, that reason was gone and therefore the Court substituted a sentence of 6 months’ imprisonment.

24. In the case of R v Tam Simon, HCMA 489 & 490 of 1996, the Appellant was convicted of taking conveyance in 2 cases. In all, the applicant was found to have taken a total of 3 different vehicles.

25. In relation to the charges, the learned trial magistrate imposed a total sentence of 18 months’ imprisonment.

26. On appeal, Mr. Justice Patrick Chan (as he then was) considered the case of R v Leung Yam Hung above and observed that there are no tariffs for this kind of offence because of the wide spectrum of possible facts.

27. It is Mr. Boey’s submission that the two cases show that if the taking of conveyance was to commit another crime, a starting point of 12 months’ imprisonment would be an appropriate starting point.

D2’s mitigation

28. D2 is 46 years old and was living in China with his daughter prior to his arrest. D2’s daughter was in court to show her support and had written a letter, telling the court how D2 has been a good father to her. I was told that Ms. Ng is now studying in Australia and the reason why D2 did not plead guilty to the charge earlier was because he wanted to make arrangements for his daughter to be able to continue her study there.

29. It is Mr. Shaw’s submission that D2 played a minor role in the taking. He was merely keeping a look-out while D1 stole the LGV. It is Mr. Shaw’s submission that D2 changed his mind after a short time and that was why he had walked away from the LGV along Choi Yuen Road and got into a taxi only after he had walked for about 4 minutes. D2 had the key to the car that he and D1 were using, and he had told the taxi driver to go to 北區醫院. I was however not told why D2 wanted to go to the hospital.

30. It is Mr. Shaw’s submission that the original intention was for them to see whether there was anything worth stealing from inside the vehicle, things like audio equipment. Mr. Shaw did not try to explain why if that was the case would they conveniently have a set of replacement license plate for the LGV.

31. Nevertheless, it is Mr. Shaw’s submission that D2 did not have a pre-meditation to steal the vehicle, he acted merely as a look out and is of lesser culpability. Mr. Shaw also adopt what Mr. Boey had submitted in relation to the 2 cases referred to above.

Cases referred to by the prosecution

32. Ms. Remedios for the prosecution referred me to 2 District Court sentencing cases. In the case of HKSAR v Lui Man Kit, DCCC 25/2009, the defendant pleaded guilty to, among others, theft of a motor vehicle and theft from a vehicle. The gist of the facts is that on 2 days in November 2008, the defendant stole a private vehicle parked on the road and changed the license plate. The defendant had also the night before stole the registration document from another vehicle to put in the stolen vehicle.

33. The learned trial judge Mr. Dufton referred to the case of HKSAR v Lam Yui-yiu, CACC 373/2006 where the Court of Appeal upheld a sentence of 4 years’ imprisonment where the appellant handled a stolen taxi, which had been fitted with false license plates. Mr. Dufton found that the theft of a taxi was more serious than theft of an old car in his case and adopted a 3 years’ imprisonment starting point for the theft of motor vehicle charge.

34. The other case that Ms. Remedios referred me to is the case of HKSAR v Wong Ka-fai, DCCC 736/2010. There the defendant pleaded guilty to a total of 4 charges with one being for the theft of a light goods vehicle, with a date of manufacture of 1999. The vehicle that was stolen was parked in the loading area of Sha Kok Estate in Shatin. There the defendant entered the vehicle, prized open the ignition switch, used one of his own keys to start the vehicle and drove it away. Some time after the theft, that defendant bought a pair of vehicle license plates and replaced the original ones of the stolen vehicle.

35. Just one day later, that defendant drove the stolen vehicle to Kennedy Town, parked it, got out and stole 11 drainage covers and loaded them into the vehicle. That defendant drove away intending to sell the covers. He was soon arrested together with other accomplices. That defendant was about to organize the transfer of the stolen drainage covers to another vehicle when he was arrested.

36. The defendant in Wong Ka Fai has a number of previous convictions including those for theft, going equipped, burglary, drugs, assault and wounding and had been imprisoned on a number of previous occasions.

37. The learned trial judge found that the only true mitigation was the defendant’s guilty plea and his timely admission and cooperation to and with the Police. HH Judge Browne also observed that the crimes were committed with a degree of planning and adopted a starting point of 2 and a half years’ imprisonment for the theft of the vehicle charge.

38. Mr. Boey for D1 pointed out, correctly that in Wong Ka Fai, the vehicle was stolen for the purpose of committing another crime, namely the theft of the drainage covers, which is different to our present case where there is no evidence to suggest that there was some other criminal purpose.

More sentencing cases

39. In the case of HKSAR v Chen Chun Ming, CACC 356/2000, the applicant was convicted after trial in the District Court of one charge of handling stolen goods and sentenced to imprisonment for two years and eight months. The undisputed evidence was that a gentlemen found his car missing one day in 1999 and less than a month later saw his car at a motor car show being offered for sale. It was not in dispute at the trial that the applicant had driven and delivered this car to a used car dealer at the motor car show just 6 days before the sighting of the car at the show and the applicant had asked PW2 to display the car for sale on his behalf.

40. The Court of Appeal upheld a sentence of 2 years and 8 months’ imprisonment imposed by the learned trial judge. In fact, the original starting point adopted was that of 3 years’ imprisonment but a discount of 4 months was given in recognition of the applicant’s clear record and a favorable report.

41. In their reasons, the Court of Appeal said this:

“14. We are unable to say that the starting point of 3 years' imprisonment adopted by the judge is in any way wrong or manifestly excessive. 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. We respectfully echo the words of Macdougall VP in R v Tang Hing Wong CACC 476/1994. That case was concerned with two thefts of motor cars. He said at the ultimate paragraph of the judgment :

"...... we think that the overall sentence of two years' imprisonment for these offences was unduly lenient. It is a notorious fact that car theft, particularly that of luxury cars, has become increasingly prevalent. Those who commit such offences must be severely dealt with as a deterrent to others. Despite the appellant's understandable sense of grievance we have come to the conclusion that even after taking into account his assistance to the police the overall sentence could not properly have been less than two years' imprisonment. In our view, it would be wrong to reduce these sentences. We therefore refuse the application."

It is to be noted that the sentence was imposed after a plea of guilty.”

42. In the case of HKSAR v Lai Lit Man, CACC 578/2002, the applicant was convicted on his plea after the conclusion of voire dire proceedings of 4 charges of theft of motor vehicles. The charges related to motor vehicle thefts that had occurred over a period of two months between February and April 2002. A sentence of 2 years 6 months’ imprisonment was given for each theft but a portion of the sentences was made to run consecutively, thereby giving a total of 4 years’ imprisonment. The actual starting point adopted by the learned trial judge was 3 and a half years’ imprisonment.

43. The Applicant was the person who stole the vehicles and D1 in that case was the person who handled them. They both received the same sentence and the Court of Appeal found that there was nothing wrong in that as their involvement were joint and similar.

Sentence

44. The LGV that the defendants attempted to steal in our present case appears to have seen quite some bit of usage and is obviously not brand new.

45. D2 was acting as a look out and said he changed his mind after a while, yet by the time he said he had changed his mind D1 was already inside the LGV. I find that D2 was as culpable as D1 in the attempted theft in that their involvement were ‘joint and similar’.

46. The bag that D1 tried to dispose of upon his escape contained items which showed that they had embarked on their journey with the clear intention of committing the offence.

47. Although there was a joint enterprise, there is no direct evidence that the 2 of them were part of a larger organization for the stealing of cars.

48. Both defendants are rather persistent offenders but it is noted that prior to this conviction they had been able to keep on the right side of the law for a relatively long period.

49. I do not find the cases of Leung Yam Hung and Tam Simon helpful. In Leung, once the conviction for the more serious offence of the 2, that being the wounding charge was overturned, the complexion of the whole case had been altered and it cannot be a useful reference to base our sentence on.

50. As for the case of Tam Simon, although the principle that a person taking a car for a joy-ride should be regarded as being less culpable than someone taking a car in connection with the participation of a serious crime is as valid in 1996 as it is now, it was clearly stated by Chan J. that he was not setting a guideline for this type of taking of conveyance offence.

51. Bearing in mind what was said in the Court of Appeal cases of Cheng Chun Ming and Tang Hing Wong (as referred to in Cheng), the sentences imposed in the 2 District Court cases, and also bearing in mind the circumstances of our present case, I find that a proper starting point is that of 30 months’ imprisonment for both defendants. I find that there should be no difference between the sentence for a completed offence and the inchoate offence in the present situation.

52. I will grant both defendants the full one third discount for their guilty plea and sentence them each to 20 months’ imprisonment.