HKSAR v. WONG FUK AND OTHERS

DCCC1440/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1440 OF 2009

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Reasons for Sentence

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1.  I convicted the three defendants, after trial, with an offence of conspiracy to steal light goods vehicles and of two charges of tampering with two light goods vehicles. In total, therefore, three charges, respectively Charges 1, 2 and 3.

2.  The facts of the case were that on 20 September 2009, the police officers, who were at an observation post, saw the three defendants alight from a private car and enter an open air car park.  In the car park the 1st defendant put on a glove and was seen tampering with the rear door of two light goods vehicles, whilst the 2nd and 3rd defendants kept watch nearby.  Whilst tampering with one of the light goods vehicles, the 1st defendant held a screwdriver in his hand and did a prising action at the rear door.  Shortly thereafter the defendants were intercepted and arrested by police officers in the car park.  They were searched, and a number of items were found and seized.

3.  The 1st defendant was found with a pair of labour gloves, screwdriver, a car ignition key and three mobile phones.  The 2nd defendant was found with a vehicle door lock, a mobile phone and a name card.  The 3rd defendant was found with five mobile phones and an ignition key for the private car which they had arrived in.   

4.  The defendants were taken to the car that they alighted from, and from a search of the car was found six vehicle locks, 14 vehicle lock ignition keys, five pairs of labour gloves, a pair of walkie-talkies, four screwdrivers, a spanner, a saw, three saw blades, two hexangular Allen keys and two torches.  Also found in the car the following day was a copy registration of a light goods vehicle which had been stolen in 2005, a document with statistics on different types of stolen motor vehicles throughout Hong Kong for the month of August 2009. 

5.  I had found that the defendants had used this mobile shed housing equipment for their use to steal and to transport them around in furtherance of their agreement to steal light goods vehicles.  I accepted that the modus operandi of the defendant conspirators was to take out the rear door locks of light goods vehicles and replace them with another lock unknown to the owner of the light goods vehicle, to make a copy key from the rear door locks that were stolen.  Then, at a future day, the conspirators would use the copy key to open the door of the light goods vehicle, start the ignition and steal the light goods vehicle.

6.  The tools found strewn all over the vehicle were suitable for the removal and replacement of the rear door locks of light goods vehicles.  The rear door locks found, as the Toyota supervisor said, were similar to those of Toyota light goods vehicles door locks.  The ignition keys that were found in the car were all keys that had been copied.  The information written on the label of some of the keys, was the registration number and location of the light goods vehicles, which were indicative of the identity of the light goods vehicle and where they could be found.

7.  Of the 14 vehicle keys found in the car, five of those keys fitted the door locks and ignitions of five light goods vehicles which did not belong to the defendants, nor had any connection with the defendants.  Owners of those five light goods vehicles did not know the defendants.  Of those five owners, three of these light goods vehicles had rear door locks of which the owners’ keys could not fit, and the rear door locks had either been damaged or removed.  

8.  I had found that the defendants were in the car park tampering with the rear door locks of the two LGVs, D2, even who had a vehicle rear door lock in his pocket, their acts were preparatory to the stealing of light goods vehicles.  On the evidence presented, therefore, I convicted the defendants of those three offences.

9.  Mr Khosa for the 1st defendant, Mr Chau for the 2nd defendant, and Miss Ody Lai for the 3rd defendant have all mitigated on behalf of the defendants, and I have taken into account all they have had to say. 

10.  The 1st defendant has six previous criminal convictions, of which two are related to dishonesty, being that of theft and conspiracy to defraud.  He is aged 45, married, with a son aged 12.  He was a part-time driver, earning approximately $300 a day. 

11.  The 2nd defendant is of clear record.  He is aged 27; born in Hong Kong; single and living with his mother, brother and sister-in-law; who is also a part-time driver, earning approximately $350 a day. 

12.  The 3rd defendant is 44 years of age and has nine previous convictions, seven of which are for handling stolen goods, and one of theft and attempted theft.  All these offences relate to dishonesty.  He is working in a company dealing with second-hand vehicles, earning approximately $30,000 to $40,000 a month.  However, when he is not able to earn a living from the second-hand vehicles he is also a part-time driver.  He is single and has a girlfriend.

13.  In this case the prosecution has made an application for the enhancement of sentence under the Organised and Serious Crimes Ordinance.  Notice of the application was made to the courts and to the defendants in January 2010.  Mr Parry, counsel on fiat, submits that the 1st charge of conspiracy to steal light

goods vehicles is an organised crime and it is a prevalent crime.

14.  The defence counsel oppose the application for enhancement of sentence principally on the basis that the figures, as submitted to the court by the prosecution to show that the crime is prevalent, is not so, as it shows that the prevalence has been reduced, the figures are down from 2008.  The organised crime, which the prosecution are relying upon, is that this offence is related to the activities of two or more persons associated together solely or partly for the purpose of committing two or more acts, each of which is a Schedule 1 offence and involves substantial planning and organisation. 

15.  The evidence relied upon in respect of organised crime is that the three defendants were found together in a car park, the 1st defendant was tampering with two light goods vehicles, whilst D2 and D3 were lookouts.  Factors clearly show there was substantial planning and organisation as the defendants were there together and had arrived in what the court described as a mobile tool shed equipped with gloves, torches, vehicle locks, walkie-talkies, tools of many kinds which could be used for the stealing of vehicles.  Keys were found in the vehicle, and those keys fit light goods vehicles which had no connection at all with the defendant, which were able to start the ignition and open the light goods vehicles.  The keys were carefully labelled, identifying the vehicle and its location.   I was satisfied that on the evidence this was an organised crime. 

16.  Turning to the prevalence of the specified offence, the prosecution relied on a statement made by Inspector Tsoi Chun-tung, dated 7 May 2010 and submitted into court as Exhibit P48.  This statement concerns matters relating to vehicle crime in Hong Kong.  At paragraph 6 Inspector Tsoi provides figures between 2005 and October 2009 in the Crime Statistic Office.  The figures, however, end as at October 2009.

17.  I have today been given figures orally by the prosecution, and these figures are not disputed by the defence.  I shall update the last column of that table in paragraph 6 to the figures given to me today, which for 2009 the overall missing vehicles should be: 1,106; light goods vehicle, 327; percentage of missing light goods vehicles/overall missing vehicles, 30 per cent; missing Toyota Hiace, 250; and percentage of missing Toyota Hiace to overall missing light goods vehicles, 77 per cent.

18.  Counsel for the defendants have argued that the number of missing Toyota Hiaces have reduced in number from 348 in 2008 to 250 in 2009, a percentage decrease of some 28 per cent; and also that figure is lower than 2007, which were 278 light goods vehicles.  So 10 per cent down also from 2007.  Therefore they argued this is no longer prevalent as the figures have been reduced. 

19.  I wholly accept that those figures are correct, and there have been less missing light goods vehicles in 2009 compared to that of 2007 and 2008.  What can be seen is a rate of increase, however, from 2005, all the way up to 2008.  This year is the first rate of decrease, and there are no further rates to compare them to hereafter. 

20.  There could be many reasons for the decrease in the number of missing vehicles.  The obvious ones is that there are more precautions against vehicle theft for that type of vehicle, the police are making more arrests against offenders, or there is more vigilance against the clamping down of these offences.  What figure has not changed, however, is the percentage of missing light goods vehicles to overall vehicles, which is 30 per cent.  And what is clear is that the percentage of missing Toyota Hiace vehicles to other overall missing light goods vehicles has increased by 1 per cent to 77 per cent. 

21.  In those circumstances I consider that this offence is prevalent, and I am satisfied that the statutory requirements of organised crime and prevalence has been made, and I consider an enhancement of sentence is warranted in this case. 

22.  I have been submitted a case of Cheng Chi Pui, CACC591/1994, the only case submitted to me by the prosecution in respect of a conspiracy to steal cars and ship them to China, of which the late Judge Hawkes passed a sentence of 4 years' imprisonment after trial.  It has been submitted to me by counsel that there was no evidence of loss of any vehicles in this case, and that is a mitigating factor.  I do not consider no loss of vehicles to be a mitigating factor.  I do consider for the offence of conspiracy to steal, that an appropriate starting point is one of 4 years' imprisonment. 

23.  For the 3rd defendant, I consider there to be an aggravating factor, which is his criminal record.  I am informed by Miss Lai that all his previous convictions involved vehicles, that is handling stolen vehicles, attempted theft of vehicles or theft of vehicles.  His previous sentences of some quite lengthy terms of imprisonment had been no deterrence at all to the defendant, and he has flagrantly disregarded the laws in Hong Kong. 

24.  In those circumstances I consider an increase of 3 months to be made to that starting point of 4 years' imprisonment for the 3rd defendant.  That will make a total of 51 months.  In considering enhancement of sentence under OSCO, I consider a 20 per cent enhancement of the sentence to be appropriate on all defendants. 

25.  So on the 1st and 2nd defendants there will be an increase of 9 months' imprisonment, which would make a term of 4 years 9 months' imprisonment, or 57 months. 

26.  For the 3rd defendant, that would mean an increase of 10 months, which means a sentence of 61 months' imprisonment.  There are, however, special circumstances on the papers before me which justify a more lenient view on D3, and I reduce his sentence to one of 4 years and 7 months' imprisonment. 

27.  As for the Charges 2 and 3, the tampering charges, these arise out of the same acts of 1st charge, and I consider concurrent sentences are appropriate.  And on Charges 2 and 3, those charges, I sentence the defendants to 6 months each, which will run concurrent to the 1st charge.

28.  The 1st and 2nd defendants, you are sentenced to 4 years 9 months’ imprisonment.  The 3rd defendant, you are sentenced to 4 years 7 months’ imprisonment.