HKSAR v. CHOY CHUNG YEE AND OTHERS

DCCC 605/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 605 OF 2012

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REASONS FOR SENTENCE

1.  On the fourth day of trial the defendants pleaded guilty to one joint charge of attempted theft of one light goods vehicle KR8661, contrary to section 9 of the Theft Ordinance, Chapter 210 (charge 4).

2.  In summary in the morning of the 19th April this year the owner of KR8661 parked and secured the vehicle at the Moral Well car park in Shatin.  In the evening at about 21.00 hours the police, carrying out an anti-vehicle-crime operation at the car park, saw D3 drive private car HR3266 to the alley outside the vehicular entrance to the car park. 

3.  Shortly after a second private car bearing registration mark JE2483 arrived at the Esso petrol station near to the car park.  D4 was the driver of this car with three passengers including D1.  D1 alighted and entered the car park whilst D4 drove the car to the alley and parked in front of HR3266. 

4.  D1 approached KR8661 and used a torch to illuminate the front passenger seat.  After about one minute D1 returned to JE2483, which was now parked in front of HR3266.  D1 and D4 then walked together to the junction between On Ping Street and On Sum Street.  After observing for about 10 seconds they returned to their cars.  A few minutes later D1, D3 and one other male walked to the same junction.  After chatting for a while D1 and D3 walked to the junction of Tai Chung Kiu Road and On Sum Street where D3 remained with D1 again entering the car park.

5.  At this point the police intercepted the defendants.  D1 was seen sitting on the front seat of KR8661 wearing a pair of gloves.  When D1 tried to flee he was arrested by the police.  The front passenger window of KR8661 had been broken and the drawer of the front passenger seat prized open, with electric wires exposed.  A pair of pliers and a hammer, which did not belong to the owner, were found in the vehicle.  The “On Board Trucker Information System” (OBTIS) and the anti-burglar system had both been removed from the vehicle.  The drawer and OBTIS are shown on the ground outside the vehicle in photograph A1, exhibit P23 and the exposed wires in photograph A2.

6.  D3 was arrested outside Garden Vista when trying to flee the scene.  D4 drove away JE2483, which the police located and intercepted about 10 minutes later.  An ignition switch (white tumbler, exhibit P19) was found on D4, which on later examination was confirmed capable of being used to start KR8661.  Two further ignition switches were found inside a bag on the rear passenger seat. Other equipment, including a hammer and a screwdriver, were also found in the car.

7.  Admitted in evidence at the beginning of trial was that the registration mark JE2483 was false and that the correct registration number of the private car was PX4543, which was registered in the name of D3 (see paragraphs 3 & 9 of the admitted facts, exhibit P25).  Two further sets of false number plates PF5373 and GT4309 were also found in JE2483 (see paragraph 5 of the admitted facts, exhibit P25).  All three sets of false number plates belonged to buses (see paragraphs 6-8 of the admitted facts, exhibit P25).

Mitigation

8.  I have carefully considered everything said by Mr Shaw on behalf of D1 together with the letter written by D1’s girlfriend; in particular that D1 committed the offence because of a debt he incurred from borrowing money to support his business.  I take into account whilst the defendant has numerous previous convictions, his last conviction was in 2003 and the last for a dishonesty related offence was in 1998 when he was sentenced to 2½ years imprisonment for blackmail.  Whilst not a good record I am satisfied this does not suffice to increase the starting point.

9.  I have carefully considered everything said by Mr So on behalf of D3, in particular that the mother depends on the defendant.  I have carefully read the background report together with the letter from Dr Wu, which details the mother’s depression and psychosis and the letters from the Hon Leung Che-cheung, Legislative Councilor and Cheung Wing-fai a former District Councilor.  I note from the report the defendant is the only child of the family in Hong Kong and that his parents separated many years ago.  I take into account D3 has a clear record.

10.  I have carefully considered everything said by Mr Percy and       Mr Liu on behalf of D4 together with the defendant’s mitigation letter.  I take into account that the defendant planned to get married, most probably next year, and that his wife to be is now pregnant.  Whilst D4 also has numerous previous convictions, he has none for dishonesty offences and his last conviction was in 2005.   Again, like D1, whilst this is not a good record, I am satisfied this does not suffice to increase the starting point.

Starting point

11.  Accepting there are no guideline sentences, deterrent sentences are nevertheless required.  As was said in HKSAR v Cheng Chun Ming CACC 356/2000, “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.”

12.  In that case the Court of Appeal upheld a starting point of 3 years imprisonment for the handling of one stolen vehicle.  In other cases a        3 year starting point has also been upheld for the theft or handling of a stolen vehicle.  Each case is however to be decided on its own facts.  A recitation of many cases is not necessarily very helpful as each case turns on its own facts and each has different aggravating features, if any.

13.  This was clearly a planned and organised attempt to steal a light goods vehicle. The anti burglary alarm was removed as was the OBTIS to prevent tracking of the stolen vehicle. The car driven by D4 in which D1 was a passenger and was registered in the name of D3, carried false number plates, no doubt to make difficult the tracing of the vehicle.  Two further sets of false number plates were found in this car.  Whilst one does not know whether they would have been used had they successfully stolen the light goods vehicle, the possession of further false number plates shows the professional nature of the operation.

14.  Although the vehicle was not stolen and therefore in that sense, as Mr Percy submits, there is no loss to the owner, I am satisfied no distinction is to be drawn between the full offence and the fact this was an attempt.  The fact the defendants have not benefited from the crime is in my view not a relevant matter in determining sentence.  The defendants were caught red handed and if not for the police observation the vehicle would no doubt have been stolen.  The acts and culpability of the defendants remained the same whether the charge was conspiracy or attempted theft (see HKSAR v Chiu Kwok Wai, Caesar CACC 294/2006).

15.  Mr So submits D3 was initially asked by Ka Chun to meet up for riding bicycles, however after arriving D3 was persuaded by the others to act as a lookout.  I do not accept that by pure coincidence D4, who I note has the name Ka Chun, arrived driving a private car which was registered in the name of D3 and which had false number plates on.  I reject the assertion D3, driving another car, was only asked to act as a lookout after he arrived at the car park.  I am satisfied no distinction is to be drawn between the roles of the defendants, each defendant playing an essential role in the attempted theft of the light goods vehicle. 

16.  Mr So on behalf of D3 asks the court to impose a community service order or alternatively to suspend the sentence.  For the reasons already set out I am satisfied the offence is too serious for the imposition of a community service order. 

17.  I am satisfied in all the circumstances that the proper starting point after trial is 3 years imprisonment.  I am further satisfied there are no exceptional circumstances warranting the suspension of the sentence.

18.  The starting point of 3 years imprisonment takes into account D3 is of a clear record.  Good character is taken into account in determining the proper starting point and additional discount given only where there is evidence of positive good character (see for example HKSAR v Wong King Wai [2008] 3 HKLRD 293).  The clear record is therefore in reality regarded as a neutral factor.  

19.  A starting point may however be increased where the defendant is a persistent offender (see HKSAR v Wen Zelang [2006] 4 HKLRD 460).  For the reasons given earlier I do not propose to increase the starting point in respect of either D1 or D4.

Timely plea

20.  The one-third discount is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time (see Secretary for Justice v Chau Wan-fun [2006] 3 HKLRD 577). 

21.  The defendants only pleaded guilty on the fourth day of trial, although the plea was indicated during the morning of the third day.  Those who plead guilty after the trial has commenced are generally not entitled to one third discount.  I take into account that only one witness was called and that the charge to which they have pleaded guilty is an alternative charge to conspiracy to steal the light goods vehicle, which alternative was not originally part of the charge sheet. Although I have not been given much detail I understand negotiations had been on-going both before and during the trial.  The fact remains, however, that the trial started with the defendants all pleading not guilty to all charges.  

22.  Full credit for a plea of guilty would result in a reduction in sentence of 12 months imprisonment.  The plea of guilty not being a timely plea I am satisfied in the circumstances a reduction of 10 months is appropriate, which makes a discount of between 25-30% from the starting point.

Compensation

23.  All three defendants have offered to pay compensation for any loss and damage to the light goods vehicle.  This amounts to $12,450, which sum the defendants consent to be deducted from their bail money, each in the sum of $4,150.  In the circumstances credit should be given for this.  In my view a reduction in sentence of 1 month imprisonment properly reflects the payment of compensation. 

24.  D1, D3 and D4 are each convicted of attempted theft of the light goods vehicle and sentenced to 2 years and 1 month imprisonment.