HKSAR v. MAN SUN ON

[English Translation –英譯本]

HCMA 92/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 92 OF 2007

(ON APPEAL FROM FLCC 2427 OF 2006)

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BETWEEN

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J U D G M E N T

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1. The Appellant pleaded guilty and was convicted of the following three charges:

Charge (1)       “Attempted theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and section 159G of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong (attempted theft of an excavator at the junction of Ki Lun Tsuen Road and Kwu Tung Road in Lok Ma Chau, New Territories, Hong Kong);

Charge (2)         “Failing to provide a specimen of breath”, contrary to section 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong; and

Charge (3)         “Theft”, contrary to Section 9 of Cap. 210 of the Laws of Hong Kong (theft of a copper water pipe worth $1,500 outside No. 391 of Ngau Tam Mei, West District, Ngau Tam Mei Road, Lok Ma Chau).

2. In respect of Charge 1, the Appellant was sentenced to 16 months’ imprisonment and disqualified from driving for 3 years; in respect of Charge 2, he was sentenced to 2 months’ imprisonment and disqualified for 2 years; and in respect of Charge 3, he was sentenced to 12 months’ imprisonment. The imprisonment terms and the “disqualification” periods for Charges 1 and 2 were to run concurrently, and 4 months of the imprisonment terms for Charges 2 and 3 were to run consecutively to the term for Charge 1, making a total of 22 months’ imprisonment and disqualification for 3 years.

3. The Appellant now appeals against sentence.

Admitted facts

4. The case took place in a construction site at the junction of Kwu Tung Road and Ki Lun Tsuen Road in the Lok Ma Chau border where laying of cables was underway. At around mid-night on the material day, the Appellant was operating by himself the jib of a crane mounted on a medium goods vehicle and was lifting an unguarded excavator onto the vehicle in order to transport it away (Charge 1). He was discovered by someone who drove past him. The Appellant released the jib immediately and dropped the excavator to the ground, and then hurriedly fled in his lorry towards the direction of Ki Lun Village.

5. The police soon arrived at the scene and stopped the medium goods vehicle that the Appellant was driving at the entrance of Ki Lun Village. At that time, the Appellant’s body smelt strongly of alcohol.

6. At 1:40 a.m. on the next day, at Lok Ma Chau Police Station, a uniformed police constable required the Appellant to provide a breath specimen for a screening test. The Appellant did not provide any breath specimen for a screening test (Charge 2).

7. Upon investigation, the police found out that two odd months before the incident, the owner of a house at No. 391, Ngau Tam Mei, West District, Ngau Tam Mei Road, Lok Ma Chau border discovered that a copper water pipe that was about 95 feet long outside his house had been cut off and stolen and that water supply to his house had been disconnected as a result. Under caution, the Appellant admitted that he had stolen the section of water pipe and had already sold it to another person at a street in Sheung Shui (Charge 3).  

Value of the stolen property and costs of repairs

8. As this issue was disputed between the prosecution and defence, the magistrate held a Newton hearing. After the hearing, the magistrate ruled that the value of the excavator at the time of the offence was about $35,000, the cost of repair of the exterior of the excavator was $10,000 and the costs of the material and workmanship for re-installation of the stolen water pipe amounted to $1,500.

The Appellant’s background

9. The Appellant is aged 49, married, with a daughter slightly over one year old. His wife is a mainlander, living on the mainland and unemployed. The Appellant’s left arm was injured in an accident 10 years ago and at present the pain still persists. His right kneecap also had to be replaced after the accident and he still has to undergo follow-up treatments. The Appellant used to work as a driver and cleaning worker, but as he could not work long hours due to the injuries, he has been unemployed for two to three years. At the time of offence, he was living on comprehensive welfare assistance and had to support his wife and daughter. The Appellant has 5 previous conviction records, two of which are for “theft” in 1983 and 2005, and one for “failing to provide a specimen of breath” in 2001.

Reasons for sentence

10. The magistrate’s reasons for sentence are as follows:

8.         The Defendant’s actus reus in Charge 1 was similar to burgling commercial premises. The modus operandi of the theft in the present case was well-planned. The Defendant used a goods vehicle and the crane on it to commit the theft and carry the stolen property. The crime was committed at the small hours when most people were asleep. The stolen property was worth a substantial amount of money. The appropriate starting point should be two years.

9.         Charge 3 relates to the theft of a water pipe that was about 100 feet long. Water was supplied to the victim’s household in the village through that section of the water pipe. The theft of the water pipe caused disturbance to the victim’s daily life. That section of the pipe, which was worth $600 to $700, was not particularly valuable, but its re-installation could be rather troublesome. The appropriate starting point should be 18 months.

10.       Charge 2 is as serious as driving under the influence of alcohol and may also obstruct lawful investigation by the police. It is therefore not an offence to be taken lightly. The proper starting point should be 3 months.

11. The magistrate gave the Appellant the usual one-third discount to the sentence for his guilty pleas and said:

14.       The three charges involve three separate incidents, so the sentences should run consecutively. However, taking into account the totality principle, 4 of the 12 months imposed for Charge 3 should run consecutively to the sentences for Charges 1 and 2. The total sentence is therefore 22 months’ imprisonment.

12. As for  “disqualification”, the magistrate pointed out that:

… [p]ursuant to powers conferred by section 69(1)(h) of the Road Traffic Ordinance and taking the facts of the case into consideration, as the Defendant drove a vehicle to commit Charge 1, I rule that his driving licence should be suspended for a period of time, the appropriate length of suspension being 3 years. Therefore, in respect of Charge 1, the Defendant is also disqualified from driving all classes of vehicles for a period of 3 years.

16.       In respect of Charge 2, he is disqualified for a period of 2 years which is to run concurrently with the 3 years’ disqualification for Charge 1.

Grounds of appeal

13. Mr. Suen, Counsel for the Appellant, submits that the sentence is wrong in principle and manifestly excessive.

On Charge 1

14. Mr. Suen submits that the magistrate erred in drawing an analogy between the present case and burglary of commercial premises. The present case took place in a public area and the excavator was unlocked. It did not involve trespassing into private land. The magistrate was wrong in principle when he adopted 2 years, which was slightly lower than the 2½ years for burglary of commercial premises, as the starting point.

15. Mr. Suen also cites cases relating to thefts of trucks and vehicles. He submitted that the value of the excavator in this case was much lower than that of a vehicle, and therefore the starting point should not be as high as that for theft of a vehicle.

16. Mr. Suen refers to two decided cases which, in his submission, are factually similar to but more serious than the present case. Those two cases are R v. Wong Wah Kwok, HCMA 661/1988 and R v. Suen Tim Ping & Anor, HCMA 1115/1991.

17. In Wong Wah Kwok, the defendant and his accomplices stole some property from a construction site and moved it away from the scene in a truck. Eventually only $13,000 worth of property was recovered. The defendant in that case had 5 previous convictions, one of which involved dishonesty. He was sentenced to 12 months’ imprisonment and was disqualified from driving for 2 years. The appellant appealed but the Court of Appeal, which did not disturb the custodial sentence but, in relation to the “disqualification”, reduced the period of disqualification to 9 months as the defendant was a driver by profession.

18. In Suen Tim Ping, the two defendants attempted to take away some $125,000 worth of property by means of a truck. They had criminal records for similar offences and were both sentenced to 18 months’ imprisonment. Their appeals against sentence were dismissed by the Court of Appeal.

19. Mr. Suen argues that, on the facts of the present case, the 2 years’ starting point adopted by the magistrate was manifestly excessive.

On Charge 2

20. Mr. Suen concedes that although 2 months’ imprisonment is on the high side, it is not manifestly excessive. However, he contends that part of the 2-month term should run concurrently with the terms for the other charges.

On Charge 3

21. Mr. Suen submits that the stolen property in the present case was worth about $600 to $700 and not valuable. He cites the case of HKSAR v. Yuen Sai Chung (阮世仲), HCMA 529/2003, an appeal case which I dealt with earlier, and submits that the two cases are similar.

22. In Yuen Sai Chung, the defendant walked off with a mobile phone. The phone was kept inside a goods vehicle with its doors opened whilst the driver was busy loading the goods. The magistrate took 15 months’ imprisonment as the starting point and sentenced the appellant to 10 months. At that time, I stated that the case did not involve an act of “pickpocketing” and the proper starting point should be 6 months. In the end, the sentence of the appellant was altered to 4 months. Mr. Suen submits that the facts in that case are similar to the present one, and so the Appellant should be sentenced to 4 months’ imprisonment.

23. Further, Mr. Suen submits that the total sentence of 22 months shows that the magistrate had not actually considered the totality of the sentence.

The Respondent’s reply

24. Miss Tsang, Government Counsel for the Respondent, replies as follows.

On Charge 1

25. Miss Tsang agrees that the offence was committed in a public place and should not be dealt with as a case of burglary. She also points out that the excavator in question was not analogous to “a conveyance” as defined in the Theft Ordinance because an excavator was not a conveyance. Therefore, no reliance will be placed on the decided cases relating to “taking conveyance without authority”.

26. Miss Tsang refers to the factors considered by the magistrate (i.e. Paragraph 8 of the Statement of Findings) and submits that the present case was a serious one because the Appellant dropped the excavator to the ground when he was discovered, and this showed that he was irresponsible and did not care about the property of others.

27. Miss Tsang also agrees that the starting point in the present case is manifestly excessive. She refers to two cases, namely HKSAR v. Chang Mei Yuet (蔣美月), HCMA 1151/2004 and HKSAR v. Luu The Truong, HCMA 340/2003.

On Charge 2

28. Miss Tsang does not agree that the 2 months’ imprisonment should be made partly concurrent with the sentences for the other charges. She argues that the nature of Charge 2 was entirely different from that of Charges 1 and 3.

On Charge 3

29. Miss Tsang submits that the facts of Charge 3 were rather unusual. Though the Appellant had not trespassed upon the victim’s residence, the magistrate considered that the theft caused disturbance to the victim’s household life. Miss Tsang submits that the magistrate’s observation was correct.

30. Miss Tsang also submits that even if I consider the starting point adopted by the magistrate manifestly excessive, the case of Yuen Sai Chung should not be relied upon as reference.

Judgment

On Charge 1

31. Miss Tsang has very fairly agreed with Mr. Suen’s submissions, and I also agree that the magistrate should not have drawn an analogy between the present case and burglary of commercial premises.

32. I have already highlighted the facts of Wong Wah Kwok and Suen Tim Ping, the two cases relied upon by Mr. Suen.

33. The facts of the two cases referred to by Miss Tsang are as follows.

34. In Chang Mei Yuet, the appellant and another were caught by the police while they were pushing a batch of metal pipes, sheets and bars in a trolley. Investigation revealed that they had trespassed upon private premises (namely the construction site of a hotel) and stolen some materials originally intended for use in renovating the exterior walls of the hotel. The magistrate adopted 6 months as the starting point. The appellant pleaded guilty and was sentenced to 4 months’ imprisonment. On appeal, the Deputy Judge did not disturb the sentence, pointing out that although it was rather severe, it was not manifestly excessive.

35. In the case of Luu The Truong, the appellant was pushing 6 I-beams in a trolley from an “abandoned vehicle pound”. The owner of the pound came right across him and called the police who then arrested him. While he was on bail, he was arrested by the police for cutting off the iron sheets from a hydraulic machine at another site. He pleaded guilty. The magistrate sentenced him to 8 months for each of the two charges and ordered 4 months of the sentences to run concurrently, making an overall sentence of 12 months. On appeal, the Deputy Judge considered the sentence appropriate and not manifestly excessive and therefore did not disturb it.

36. Having considered the facts of the present case, the value of the excavator, the Appellant’s criminal record and the relevant authorities, I rule that the appropriate starting point should be 15 months’ imprisonment. As the Appellant has pleaded guilty, the term should be reduced to 10 months.

On Charge 2  

37. Having considered the facts of the case and the Appellant’s background, I hold that 2 months’ imprisonment is not excessive. This sentence should not run concurrently with the sentences for Charges 1 and 3 because the offences are completely different in nature. It should only be taken into account in the context of the totality of the sentence.

OnCharge 3  

38. I agree with the magistrate’s view that the victim’s household life was disrupted by the theft of the water pipe by the Appellant. That section of the water pipe itself cost $600 to $700 but the re-installation was quite troublesome and the materials and workmanship cost $1,500. Having said that, the starting point of 18 months’ imprisonment is in my judgment too high.

39. The Appellant’s act of stealing the water pipe was not the same as the act of walking off with a mobile phone as in Yuen Sai Chung. Although stealing the water pipe did not require a lot of time, it was to a certain extent a planned activity which required some positive acts to be done. The proper starting point should be 9 months’ imprisonment. As the Appellant has pleaded guilty, the appropriate term should be 6 months.

40. The terms of imprisonment for Charges 1 to 3 are 10 months, 2 months and 6 months respectively, which add up to 18 months. In light of the totality principle, I rule that 15 months can sufficiently reflect the culpability of the Appellant.

41. For the above reasons, the appeal against sentence is allowed. The original sentence is set aside and replaced by:

Charge 1              10 months’ imprisonment;

Charge 2               2 months’ imprisonment, consecutive to the terms for Charges 1 and 3; and

Charge 3               6 months’ imprisonment, 3 months thereof consecutive to the terms for Charges 1 and 2.

The total sentence is 15 months’ imprisonment.

42. Regarding the “disqualification”, Mr. Suen in fact made no submission at the appeal and therefore no reply was made by Miss Tsang. However, I have read the magistrate’s reasons for the 3-year “disqualification” for Charge 1 and consider this sentence manifestly excessive. This was the second time that the Appellant committed the same offence as that specified in Charge 2, for which he is already sentenced to disqualification for two years. In view of the facts of the case as a whole and the fact that the Appellant is a driver by profession, the 2-year  “disqualification” is sufficient. I hereby dismiss the 3-year “disqualification” for Charge 1 – in other words, only the “disqualification” order in Charge 2 is affirmed.