HKSAR v. CHEUNG YIU FAI

DCCC 602/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 602 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

Charge

1.  The defendant pleaded guilty to one count of theft, contrary to section 9 of the Theft Ordinance, Chapter 210, Laws of Hong Kong.

2.  The particulars of the charge are:- Cheung Yiu-fai, on the 12th day of February 2016, at HSBC Banking Centre, Ground Floor, Trend Plaza South Wing, No 2 Tuen Hop Street, Tuen Mun, New Territories, in Hong Kong, stole one rucksack containing one key which could open the covering of the ATM machine and 20 red packets containing cash of a total of 400 Hong Kong currency, one tool bag, one repair tools, two USB memory sticks, two keyboards and some personal belongings, property belongings to Lau Shing-yip.

3.  The defendant was represented by a lawyer.  The facts the defendant admitted are these.  On the day in question, while a group of ATM mechanics was repairing the machine, the defendant went to steal away a rucksack of one mechanic.  The rucksack contained inter alia an ATM key.

4.  Based on some CCTV images, defendant’s identity was revealed and he was arrested at home one week later.  Some of the stolen items were recovered.

5.  The defendant told the police that he was asked to steal the rucksack on that day.  He agreed to do it for a few hundred dollars reward.

6.  In addition, he said that he was asked to throw away the ATM key, and somebody would watch him doing it. He eventually did it, he threw away the key at a park.  He spent the cash in the rucksack and kept some remaining items in his home which were recovered by the police in the raid.

Mitigation and criminal record

7.  The defendant is 41 years old and he is single.  He lives with his parents at the reported address.  He worked in a vegetable store in a market.

8.  He has been convicted on five occasions where one was theft and  another was burglary.  He has been sentenced to Drug Addiction Treatment Centre before.  His last conviction was in year 2008 when he was sentenced to 2 years’ imprisonment for using false instrument.

Consideration

9.  According to the facts that the defendant admitted, what he did was not because of momentary greed. It was not theft of his own.  He was asked to do it and he was told the way to dispose of some particular items and he did it.  It was a syndicated plot though of a lesser degree in the usual scale and there was no evidence that the defendant knew anything more than what he was told.

10.  The facts do not suggest that he knew the master scheme, whatever it was, but obviously, he at least knew that the ATM key was the true target.  Average persons should have rung the bell and this defendant should be no exception.  While what was exactly beyond the key was not in his mind, he should have some idea that something further and something bigger about ATM machine would follow.

11.  This is why this case is more serious than the usual theft scenario and a starting point of 15 months’ imprisonment is adopted.

12.  The defendant pleaded guilty at a time before the passing of the Court of Appeal authority, Ngo Van Nam CACC 418/2014. He should be given a one-third discount for his plea. The defendant is therefore sentenced to 10 months’ imprisonment.