HKSAR v. CHOW HEI CHOY

DCCC 206/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 206 OF 2015

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Reasons for Sentence

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1.   The defendant has pleaded guilty to six offences of theft.  On 29 December 2014 the defendant was caught red-handed for the offence of theft of vehicle (Charge 6).  Under caution, the defendant made further admission to another five incidents of theft of motorcycles (Charges 1 to 5).

2.   On the application of the prosecution, Charges 7 and 8 are left on court file and not to be proceeded with without the leave of the court.

Charge 6

3.   Between 8 pm on 27 December 2014 and 1 pm on 28 December 2014, a light goods vehicle (“the LGV”), valued at HK$45,000, parked in Tseung Kwan O, New Territories, was stolen.

4.   Two days later it was discovered at a car park in Chai Wan.  A report was made to the police. 

5.   Later, the defendant and a female were acting suspiciously in the vicinity.  On seeing the police, they attempted to flee, but in vain.  They were stopped by the police.  A crowbar was found on the defendant. 

6.   Under caution, the defendant admitted that he had stolen the LGV for his own use. 

7.   A house search was conducted.  At the staircase outside the defendant’s residence, items placed in the LGV were seized.

Charge 1

8.   The first motorcycle, valued at $13,000, parked at a rear lane in Chai Wan, was stolen between 1820 hours on 25 November 2014 and 8.35 am on 26 November 2014.

9.   On 20 December the motorcycle was parked in Yue Wan Estate, Chai Wan and recovered.

10.   The defendant admitted that he stole this motorcycle and rode it away.

Charge 2

11.   The second motorcycle, valued at $8,000, parked in Chai Wan, was stolen between 1200 hours on 9 December 2014 and 0830 hours on 16 December 2014.

12.   It was discovered on 29 December in Hing Wah Estate, Chai Wan. 

13.   The defendant admitted that, upon the request of his friend, he stole the second motorcycle for a reward of $300.

Charge 3

14.   The third motorcycle, valued at $10,000, parked in Siu Sai Wan, was stolen between 0730 hours on 11 December and 0800 hours on 12 December 2014.

15.   It was discovered on 12 December in Tseung Kwan O.

16.   The defendant admitted that he stole it to give a free ride to his girlfriend.

Charge 4

17.   The fourth motorcycle, valued at $39,000, was stolen between 1800 hours on 22 December and 0900 hours on 23 December 2014.

18.   It was discovered on 24 December 2014 in Chai Wan.

19.   The defendant admitted that, upon the request of his friend Ah Ming, he stole this motorcycle.  He used a screwdriver to prise upon the ignition key and rode it away.

Charge 5

20.   The fifth motorcycle, valued at about $10,000, was stolen at Yue Wan Estate, Chai Wan between 1715 hours on 25 December and 0300 hours on 27 December 2014.

21.   It was discovered on that night.

22.   The defendant is aged 47.  He has a criminal record for 29 convictions, out of which seven involved theft and fraud, one for robbery, burglary and taking conveyance without authority.

23.   In mitigation, Miss Kam, solicitor for the defendant, submits a written submission in mitigation.  It is said that the defendant received education up to Form 1.  He is a divorced person living with his mother.  He has been a restaurant assistant, but became unemployed since August 2012.  He resorted to the present offences due to financial difficulties.  The defendant is now remorseful.

24.   I am reminded that all the vehicles have been recovered and Charges 1 to 5 were prosecuted as a result of the defendant’s full admission.

25.   Miss Kam draws my attention to two cases:  HKSAR v Cheng Chun Ming, CACC 356/2000, and HKSAR v Li Cheung Yin & Ors, CACC 313/2011.  She submits that the tariff for theft of vehicle is 3 years’ imprisonment.

26.   The criminality in different cases of theft can vary widely and therefore it is difficult to lay down tariff for theft offences.  I do not think that the cases referred to by Miss Kam suggests that there is a tariff for theft of vehicle.

27.   However, it is true that the courts have always treated cases involving the theft or handling of motorcars as serious offences and imposed immediate custodial sentences for considerable length.

28.   Apart from the financial loss, the theft causes great inconvenience to the owner of the vehicle.

29.   A starting point of 3 years’ imprisonment or more for theft of a motor vehicle is often taken by courts, depending on the special features of the cases and background of the defendants.  Its sentence is fact-sensitive in each case.

30.   In Cheng Chun Ming, the case cited by Miss Kam, a starting point of 3 years for the offence of handling of a motor vehicle at a value of approximately $158,000 was taken by the trial judge, who accepted that the defendant, having a clear record and good family background, was an opportunistic handler.  The Court of Appeal said it was unable to find the 3-year starting point wrong or manifestly excessive.

31.   In the present case, the defendant, aged 47, has a poor criminal record for convictions since the age of 14.  He has previous convictions, including theft, burglary and taking conveyance without authority. 

32.   The records show that he was a drug addict. 

33.   He committed the six offences in this case consecutively in November and December 2014. 

34.   While there is evidence that for Charge 2 the defendant stole the motorcycle for a reward and for Charge 4 he did it at the request of a friend, I would treat that he was not connected with syndicates. 

35.   I take into account all the stolen vehicles have been recovered.

36.   Value of the vehicle is one factor. Number of previous incidents of theft in this series of offences is also relevant.

37.   Charge 1 involves an LGV valued at $45,000, which is less than the usual value of a private car.  It was committed after the defendant had committed Charges 1 to 5.

38.   I take 3 years’ imprisonment as the starting point.

39.   Charges 1 to 5 involve motorcycles of various values. 

40.   I take the starting points at 24 months, 24 months, 24 months, 30 months and 30 months for the respective charges.

41.   The defendant will be given the full discount for his plea of guilty.

42.   Voluntary confession leading to prosecution might not necessarily lead to reduction on top of the one-third discount for the plea of guilty. 

43.   However, I exercise my discretion to offer a further discount of 5 per cent for his voluntary confession for Charges 1 to 5.  The special circumstance in this case would warrant an extra reduction of 5 per cent.

44.   The defendant is sentenced as follows:

1) Charge 1: 13 months;

2) Charge 2: 13 months;

3) Charge 3: 13 months;

4) Charge 4: 17 months;

5) Charge 5: 17 months.

45.   For Charge 6, the defendant is only entitled to 38% discount.  He is sentenced to 22 months.

46.   The last question is totality of sentence.

47.   I take into account that all the offences were committed in near proximity of time in about one month’s time.

48.   A total term of 5½ years’ imprisonment should be sufficient to reflect the total culpability of all the charges before reduction.

49.   Taking into account the mitigating factors I have referred to, I reduce the total term to 39 months. 

50.   To achieve this, I order that 4 months of the sentences in each of Charges 1 to 4 and 1 month of the sentence in Charge 5 shall run consecutively with each other and consecutively to the sentence in Charge 6.  The balance will run concurrently.

51.   The total term of imprisonment is 3 years and 3 months’ imprisonment.