HKSAR v. CHENG WAI MING

DCCC 953/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 953 OF 2014

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REASONS FOR SENTENCE
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1.  Thedefendantis convictedonhisownpleasofthefollowingchargesandagreedthefacts.

Charge 1

2.  Theft: particulars of offence – the defendant, on the 18th day of March 2014, at 23rd Floor, Sun Hing Building, Nos 603-609A Nathan Road, Mong Kok, Kowloon, stole one iPhone property belonging to Chang Chih Neng; and one iPhone property belonging to Cheung Chi Ho.

Charge2

3.  Theft: particulars of offence - the defendant, on the 28th day of March 2014, at the lift lobby, 6th Floor, Kwai Fong Estate Carpark II, Kwai Chung, New Territories, stole one smartphone property belonging to Chan Hok Nam.

Charge3

4.  Theft: particulars of offence – the defendant, on the 4th day of April 2014, at a staircase, 15th Floor, Sun Hing Building, stole one smartphone property belonging to Fong Tsz Chung; and one smartphone property belonging to Liu Guangping.

Charge4

5.  Theft: particulars of offence – the defendant, on the 10th day of May 2014, at a staircase, 19th Floor, Sun Hing Building, stole one smartphone property belonging to Lam Ka Ching; and one smartphone belonging to Lee Tung Yan.

Charge 5

6.  Theft: particulars of offence – the defendant, on the 26th day of May 2014, at a staircase, 15th Floor, Sun Hing Building, stole one smartphone property belonging to Law Fook Lam; and one smartphone property belonging to Lee Shun Ting.

Charge 6

7.  Theft: particulars of offence – the defendant, on the 31 May 2014, at a Staircase No 3, 16th Floor, Sun Hing Building, stole one iPhone property belonging to Chan Ka Yui; one smartphone property belonging to Tsang Hing Hoi; one iPhone property belonging to Chan Ho Chun; and one mobile phone property belonging to another.

Charge7

8.  Claiming to be a member of a triad society : particulars of offence - the defendant, on the 2nd day of June 2014, at the football field outside Tak Fu House, Hau Tak Estate, Tseung Kwan O, New Territories, claimed to be a member of a triad society, namely the “Wo Shing Wo” Triad Society.

Charge8

9.  Theft: particulars of offence – the defendant, on the 2nd day of June 2014, at Staircase B, 11th Floor, Tak Yue House, Hau Tak Estate, stole one smartphone property belonging to Lau Kwok Yu; and one smartphone property belonging to Lau Kwok Ching.

Charge9

10.  Claiming to be a member of a triad society: particulars of offence - the defendant, on the 19th day of June, 2014, at Rooftop, Lai Kok Estate Multi-Storey Carpark, Sham Shui Po, Kowloon, claimed to be a member of a triad society, namely the “Wo On Lok” Triad Society.

Charge10

11.  Theft: particulars of offence – the defendant, on the 19th day of June 2014, at a staircase, 17th Floor, Sun Hing Building, stole one smartphone property belonging to Lam King Fu; and one smartphone property belonging to Sin Ho Fei.

Agreed facts

12.  The facts relating to the theft charges are so similar that they will be considered together.

13.  On divers dates between March and June 2014, at various places, the defendant through false pretences lured teenage victims (ages ranging from 13 to 18) to part with their mobile or smart phones (a total of 17 phones ranging from $750 to $7, 000 each: total value slightly in excess of $62, 000). 

14.  On 2 June 2014 (Charge 7), while two teenagers (aged both 16) were playing football in a public football field, they got into a dispute with someone.  The defendant went over to resolve the dispute.  He then chatted with the two teenagers and told them he was from “Shing Wo” and that in the future if there was any problem they could find him or announce his name.  Later, the defendant brought them to a staircase in Tseung Kwan O where he obtained their smartphones, before he fled.

15.  On 19 June 2014 (Charge 9), while another pair of teenagers (aged l3 and 14) were hanging out on the Rooftop of a Multi-Storey Carpark, the defendant approached them and declared that he was from “Shui Fong” and asked whether they were the ones who beat his brothers.  The teenagers denied.  The defendant then reiterated that he was from “Shui Fong” and asked the teenagers to be his followers and even brought them to a staircase in Mong Kok purporting to arrange a meeting between them and his followers.  Later, after obtaining their smart/mobile  phones, the defendant fled.

16.  On 21 July 2014, the defendant was arrested.  Under caution, he admitted to the thefts subjects of Charges 1, 3, 4, 5, 6 and 10; he had sold all the phones and had spent all the proceeds of sale.

17.  Triad expert says that “Shing Wo” refers to “Wo Shing Wo” a triad society in Hong Kong; by claiming to be from “Shing Wo”, one is saying he is a member of “Wo Shing Wo” Triad Society. Triad expert further says that “Shui Fong” refers to “Wo On Lok”, a triad society in Hong Kong; by claiming to be from “Shui Fong”, one is saying he is a member of “Wo On Lok” Triad Society.

Defendant'scriminalrecords

18.  The defendant has 27 previous occasions of being sentenced by the court.  The total number of convictions amount to 45 including breach of probation order twice and breach of suspended sentence once.  The other convictions include 8 x robbery, 4 x burglary, 10 x theft.  There is an order of sentence suspension still within the operative period which was imposed on 28 November 2013: 2 months suspended for 18 months on account of a common assault conviction.

Defendant’s personal particulars

19.  The defendant is aged 38 educated to P5 in Hong Kong.  He was unemployed at the time of arrest.  He is single and before arrest lived with his parents in Tsueng Kwan O.

Mitigation

20.  The defendant is co-operative and admits the majority of theft charges including even Charges 4 and 10 for which there is no ID parade evidence.

21.  For the two claiming MOTS offences the defendant did not mean to threaten the victims.

22.  Charges 7 and 8 are part of one scenario just as charges 9 and 10 are part of another scenario. Defence asks for two sets of concurrent sentences.

23.  Defence reminded the court of the totality principle.

Sentences and reasons for them

24.  Prosecution submitted 7 authorities which are:-

(a) HKSARvLee Cheuk Fai, HCMA1238/2002(inChinese);

(b) HKSARvLo Kar Yu, HCMA389/2005(inChinese);

(c) HKSARv Kong Ching Ha Priscilla, HCMA941/2005;

(d) HKSARvLau Chun On, HCMA396/2006(inChinese);

(e) HKSARvWong Kai Chung, HCMA240/2007(inChinese);

(f) HKSARvLi Wai Hung, CACC40/2009;and

(g) HKSARv Mui Ki Chi, CACC85/2009.

25.  Defence submitted 2 authorities which are:-

(a) HKSARvLee Cheuk Fai, HCMA1238/2002(Englishtranslation);and

(b) HKSARvChan Kin Kwok & Anor, HCMA235/2007.

26.  I have considered these authorities.

27.  I have considered the young ages of the victims, the total value of the stolen goods, and the period within which the theft offences were committed.  The fact that similar modus operandi had been adopted shows that there was some pre-meditated planning for these offences.

28.  For the theft offences, I propose to take a global view of them.  There are 8 charges involving 17 teenage victims with one phone stolen from each.  Total value of stolen phones came to slightly more than $62, 000.

29.  I regard 3 years’ imprisonment as an appropriate overall starting point in the absence of aggravating factors.

30.  However, in this case, there is an obvious aggravating factor – the recidivist nature of the offender.  Previous sentences including imprisonment sentences have failed to deter the defendant from committing further theft-related offences.

31.  I will enhance the starting point by 1/3 to 4 years to take account of this aggravating factor.

32.  As for the two claiming MOTS offences, they are distinct offences from the theft offences committed on the same days and ought, in the absence of totality, to be viewed separately in terms of sentencing from those theft offences.  However, because of totality, I am willing to consider partial concurrency in the case of Charges 7-8, and in the case of Charges 9-10.

33.  I will adopt a starting point of 6 months imprisonment for each claiming MOTS offence.  The sentences will work out as follows :-

Charge 1 - 9 months’ imprisonment starting point, reduced to 6 months because of the plea;

Charge 2 - 9 months’ imprisonment starting point, reduced to 6 months because of the plea, 4 months to run consecutively to previous charge;

Charge 3 - 9 months’ imprisonment starting point, reduced to 6 months because of the plea, 3 months to run consecutively to previous charges;

Charge 4 - 9 months’ imprisonment starting point, reduced to 6 months because of the plea, 4 months to run consecutively to previous charges;

Charge 5 - 9 months’ imprisonment starting point, reduced to 6 months because of the plea, 3 months to run consecutively to previous charges;

Charge 6 - 9 months’ imprisonment starting point, reduced to 6 months because of the plea, 5 months to run consecutively to previous charges;

Charge 7 - 6 months’ imprisonment starting point reduced to 4 months because of the plea, 3 months to run consecutively to previous charges;

Charge 8 - 9 months’ imprisonment starting point, reduced to 6 months because of the plea, 3 months to run consecutively to previous charges;

Charge 9 - 6 months’ imprisonment starting point, reduced to 4 months because of the plea, 3 months to run consecutively to previous charges; and

Charge 10 - 9 months’ imprisonment starting point, reduced to 6 months because of the plea, 4 months to run consecutively to previous charges.

34.  For the present case, the defendant will go to prison for 38 months.  However, there is still a suspension order which needs to be considered.  Having considered all the circumstances including the proximity in time between the suspension order and the current set of offences, I order that the full 2  months’ sentence previously suspended be activated and to run consecutively to the present sentences.

35.  In the result, the defendant will serve a total sentence of 3 years 4 months’ imprisonment.