HKSAR v. HO SHEK HIM

DCCC 946/2018

[2019] HKDC 695

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 946 OF 2018

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Reasons for Sentence

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1.  Mr Ho is back in front of the court again. He has pleaded guilty to a total of nine offences this time; seven of them will be theft and two of them will be attempted theft. They are all a species of theft from a vehicle, starting on 18 July 2018 and finishing on 9 August 2018 when he was apprehended.

2.  The defendant had been released from Hei Ling Chau on 16 July, so two days before he started committing offences again, where he had been serving a sentence of imprisonment for theft from vehicle.

3.  Prior to that, in fact I had sentenced the defendant to a total of 13 months’ imprisonment for the same of suite of offences that he faces today.

4.  The defendant has admitted the Summary of Facts against him.  The total of nine offences show a series of offences committed against the vehicles largely parked in car parks or roads.  I believe they were all coaches.

5.  The defendant’s modus operandi is to break into a coach that is parked, ransack the vehicle and take anything that he could use inside it, which in most of these cases would appear to be Octopus cards and cash, if he finds it there.

6.  The defendant has admitted committing offence of that nature on 18 July, where an Octopus card was taken.  And then offences 3 through to 8 are six offences; five of them theft and one an attempt.  From the vehicles, we can see that property such as Octopus card and cash are taken.  On the 8th offence, some other items such as jade rings and gold rings were taken, along with quite a substantial amount of cash, $5,000.

7.  The final offence was committed on 29 July, and then later on 9 August when the defendant was apprehended, and some $1,500 in cash had been taken on 9th charge.

8.  The defendant admitted all the offences to the police and admits them today.

9.  In terms of his background, he is 62 years old, educated to primary level.  As I said earlier, released from prison on 16 July 2018. 

10.  The defendant, no doubt as a result of being incarcerated for long periods of time, is in good health and not a drug addict. He tells me he has relatives with whom he can live when he is released.  He is single and does not have any children.

11.  He has not been in receipt of CSSA.  My understanding would be he has probably not been released for long enough to make an application.

12.  He is remorseful.  He has written a letter to the court.  He would like to, on release, find a job, or if he cannot do that, apply for CSSA to resolve his financial problem.

13.  The defendant’s criminal record is extensive and dates back to 1997:  34 court appearances, 183 convictions; 177 of them for dishonesty; a large number of those are theft from vehicle.  The criminal record showing an increase in length of sentencing for these offences, but still the courts are influenced by the fact that it is effectively petty crime.

14.  Turning to the question of sentence in terms of the starting point of sentence on these offences.  These are theft offences.  The Court of Appeal has not dealt with setting guidelines for theft from vehicles. The High Court on appeal has said that 12 months could be a proper starting point.  The court, in one case I have been referred to, enhanced that starting point 25 per cent because of recidivism.

15.  As I said, the defendant is certainly a recidivist.  He is somewhat an extreme example of that kind of offender.  My calculation is that he would have spent very little time outside of a prison, certainly in the last few years.  He will commit offences almost immediately on release from prison.  In this case, he was back in custody within two to three weeks of release and that is a consistent pattern.

16.  To deal with that would obviously require major social enterprise work on behalf of the defendant and he seems to be incapable of releasing himself, by his own endeavours, from his recidivist lifestyle.

17.  But all I can do today is sentence the defendant in the light of the fact that he is a persistent offender and that the public require protection from people like him, but always bearing in mind at the end of the day the offences themselves are relatively minor, with items such as cash and Octopus cards being stolen.

18.  What I shall do is take a starting point of sentence as follows.  I agree that a sentence of 12 months is a good indicator of the court’s approach to sentencing in theft from vehicles.  Having regard to the defendant’s long criminal record and clear recidivism, I shall enhance that figure to 18 months’ imprisonment as a starting point for each of the offences.  I shall reduce that to 12 months’ imprisonment, having regard to the defendant’s plea of guilty.  So on each charge he has pleaded guilty to, he will be sentenced to 12 months’ imprisonment.

19.  The question now is what should the overall totality of sentence be.  The last time the defendant was in this court for a similar run of offences, the overall total I think was 13 months’ imprisonment.  Mr Lam, on behalf of the defendant, points out that he faces nine offences this time, rather than the 14 he faced last time.  Nevertheless, this is almost three years later and the defendant is back here again.

20.  I have decided that the defendant should face a substantial sentence for this series of offences.  I will take an overall starting point in the region of 4½ years’ imprisonment, which would reduce to 3 years’ imprisonment or 36 months, having regard for the defendant’s plea of guilty.

21.  I see this as follows.  I am going to order that Charges 3 to 8 be served concurrently.  They were all committed on the same day.  That is, that 3 to 8 are served concurrently to each other, and that 9 and 10 should be served concurrently to each other, but that Charges 1, 3 through to 8, and 9 and 10 be served consecutively, leading to an overall sentence of 36 months for this series of offending.  All right, that will be my sentence.