HKSAR v. CHOI CHUN HEI

DCCC 612/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 612 OF 2010

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Reasons for Sentence

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Charge and facts

1.  The Defendant pleads guilty to 3 charges of theft, 1 charge of burglary and 1 charge of giving false information to wilfully mislead a police officer.

3 charges of theft (1^st, 3^rd and 4^th Charges)

2.  On 22 June 2009, the Defendant rang up a female friend, PW1 CHAN, whom he had not met for 6 years. They made an appointment to meet at the Neway Karaoke in Full Win Commercial Centre, Mongkok. In the afternoon they met up and took up Room No. 91. After a while, PW1 went out of the room to pick up a call without bringing along her handbag and wallet. After the call, she returned to the room. After an hour, the Defendant told her that he had to go to the washroom. He later called to tell her that he had to go downstairs to talk on the phone. He did not turn up afterwards. PW1 left the karaoke alone at 7:15 p.m.

3.  On the following day she found her Hang Seng Bank credit card missing from her wallet. The bank later informed her that the card had been used in 3 purchases ($12,198 in total) at 2 shops in the vicinity of the karaoke on the previous day during her stay in the karaoke. She reported to the police. These facts constitute the 1^st Charge.

4.  At night time on 12 December 2009, PW4 LAM attended her friend’s birthday party at Club Zero, Mongkok. She left her handbag on the seat unattended when she left her seat occasionally. When she left the party the next morning, she found her wallet (valued at $6,000) missing from her handbag. It contained the following:

(1)  $700 cash;

(2)  Her Hong Kong Identity Card;

(3)  Her Home Visit Permit;

(4)  Her HSBC ATM Card;

(5)  Her Standard Chartered Bank MasterCard.

5.  She reported to the police. She later learned that her Standard Chartered Bank MasterCard had been used by someone in 3 transactions ($5,560 in total) at 3 shops in Jordan.

6.  Upon viewing the CCTV recording at Club Zero, she discovered that the Defendant, who was her ex-schoolmate, had stolen from her. The recording was, however, not retained by Club Zero subsequently. These facts constitute the 3^rd Charge.

7.  At night time on 8 January 2010, PW5 LAM received a call from the Defendant who was her friend. He proposed to meet her up in Mongkok. He came along with another friend, PW6 YAU. At the meeting, she told him that her Rolex watch (valued at $28,000) needed overhauling. He told them to go to Sino Centre. He said he could get a discount from a shop there. She passed her watch to him. He entered a shop on the ground floor of Sino Centre but left without their notice. The staff later told them that he had already left. She received his SMS on her phone. He said he had taken the watch because he was short of money. She reported to the police. These facts constitute the 4^th Charge.

Charge of burglary (2^nd Charge)

8.  PW2 CHAN’s boyfriend was LAU. At 8:20 a.m. on 19 October 2009, the Defendant went up to PW2’s flat in Long Ping Estate, Yuen Long to see LAU. At 8:45 a.m., PW2 and LAU went out for breakfast. The Defendant was sleeping in the flat. At 9:15 a.m., when they returned, the Defendant claimed that he had to go to work. He left hastily. Afterwards, they also left.

9.  At 7:30 p.m., PW3 CHAN, who was PW2’s father, returned to the flat and discovered prizing signs on the door of his bedroom. His room was ransacked. He had locked the door before leaving the flat in the morning. Two watches and one necklace (valued at $27,500 in total) were missing from his bedroom. He reported to the police.

10.  CCTV recording of the estate captured the images of the Defendant entering the building at the material time. He was also seen taking out a watch for viewing inside the lift.

11.  His fingerprint and palmprint were found on a box inside PW3’s bedroom and on the surface of the door of PW3’s bedroom.

Charge of misleading police (5^th Charge)

12.  PW7 WONG was PW5’s boyfriend. He learned that PW5’s Rolex watch had been stolen by the Defendant (4^th Charge). In the small hours on 26 March 2010, he ran into the Defendant at a pub in Yaumatei. He asked the Defendant about the watch. The Defendant requested to talk downstairs. On the ground floor, the Defendant was assaulted by a group of unknown males. After a while, the group left and the police arrived. The Defendant claimed to be “TSANG Tsz-ho” with Hong Kong identity card number “Y100700(7)”. He claimed to have lost his wallet and identity card.

13.  At the police station, he revealed to the police his true name and true identity card number. He was arrested for giving false information. Under caution, he said he gave false identity because he knew he was wanted for two cases of theft and did not want to be arrested by the police.

Police interviews

14.  In subsequent cautioned interviews, he admitted the offences. He had sold the properties and spent all the money. He had discarded PW1’s credit card (1^st Charge) into the rubbish bin.

Personal background and mitigation

15.  He is now 23 years of age. His father had passed away and he had maintained no ties with his mother. His grandmother had gone back to Zhongshan after he had finished F.5. He has 16 previous convictions for theft from December 2000 to June 2010. There is 1 previous conviction for burglary in 2000. He has received jail terms on many occasions.

16.  His solicitor, Miss Tang, tells me that he had not used any tools to prize the door of PW3’s bedroom but kicked and broke the lock (2^nd Charge). The usual sentencing guidelines for domestic burglary should apply. She also accepts that he is a repeat offender for theft.

Sentencing principles

17.  In R v CHAN Yui Man, Cr App 36/1988, the Court of Appeal held that in burglary of domestic premises, 3 years was the proper starting point for a first offender of full age. This was followed in R v Chan Wing Ching Cr App 100/1991, R v Luk Wai Kit Cr App 99/1992, and R v Wong Man Cr App 372/1992.

18.  In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender. A heavier sentence would be imposed where there were aggravating factors such as repeat offending.

19.  There are no sentencing guidelines for the offence of giving false information to wilfully mislead a police officer. The statutory maximum is $5,000 fine and 6 months’ imprisonment.

Sentencing this Defendant

20.  The most serious charge in the present case is domestic burglary (2^nd Charge). I take 3 years as the starting point. I reduce it to 2 years due to his plea of guilty.

21.  The other 3 theft charges involved conduct akin to pickpocketing. Given that he is a repeat offender for theft, the deterrent factor has to be addressed. I take 18 months as the starting point for each of the 3 charges. I reduce it to 1 year each due to his plea of guilty.

22.  The charge of misleading a police officer by a false name and a false identity card number shall attract a sentence of 3 months. I reduce it to 2 months due to his plea of guilty.

23.  Each of the 5 charges related to separate incidents. Consecutive sentences shall be imposed. The total sentence would be 5 years and 2 months (i.e., 2 years + 3 years + 2 months). This would be too harsh for the overall culpability. By totality, I make an order for partly consecutive sentences as follows:

(1)  2 years for the 2^nd charge;

(2)  3 months of the 1-year term for the 1^st charge to be consecutive to the 2^nd charge;

(3)  3 months of the 1-year term for the 3^rd charge to be consecutive to the 1^st and 2^nd charges;

(4)  3 months of the 1-year term for the 4^th charge to be consecutive to the 1^st, 2^nd and 3^rd charges;

(5)  The 2 months for the 5^th charge to be concurrent with other charges.

24.  The total sentence is reduced to 2 years and 9 months.