HKSAR v. YUNG WAI CHUNG AND ANOTHER

DCCC500/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 500 OF 2011

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Reasons for Sentence

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The Charges

1.  Both Defendants pleaded guilty to two charges of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210, laid against them jointly (1^st and 6^th charges).

2.  The 2nd Defendant also pleaded guilty to 2 other charges of “theft” laid against him alone (2^nd and 4^th charges). In addition, the 2nd Defendant pleaded guilty to two charges of “falsely pretending to be a public officer”, contrary to section 22(1) of the Summary Offences Ordinance, Cap. 228 (3^rd and 5^th charges), and one charge of “claiming to be a member of a triad society”, contrary to section 20(2) of the Societies Ordinance, Cap. 151 (7^th charge).

The Facts Admitted

3.  The facts admitted by the Defendants were these : in each of the theft cases, either the two Defendants together, or the 2nd Defendant with another male, approached students who were teenagers. Under the pretext that they were conducting some sort of investigation, the Defendants would tell the students to surrender their mobile phones.

4.  On some of those occasions, the 2nd Defendant would claim himself to be a police officer or a triad member. These formed the basis of the other charges.

5.  Firstly, in the afternoon of 19 January 2011, the two Defendants approached 5 students in Wong Tai Sin and told them that they were looking for those who had assaulted their followers. One of the students was then asked to collect the mobile phones from the others for call record checks. Out of fear, the student complied and, while carrying the mobile phones of his fellow schoolmates, he boarded a taxi with the Defendants. On arrival at Tung Tau Estate, the student was asked to surrender all the 5 mobile phones, valued at HK$9,079. The Defendants then left. This is the subject matter of the 1st charge.

6.  In the evening of 9 February 2011, the 2nd Defendant, together with another male, employed the same modus operandi and approached a group of 3 students outside a park in Tseung Kwan O. This time, the 2nd Defendant claimed to them that he and the other male were police officers. After the mobile phones had been collected, one of the students was asked to travel to Po Lam Road North with them by taxi. Upon arrival, the student was asked to surrender the mobile phones, including his own, which were valued at HK$6,700. The 2nd Defendant and the male then left. These are the subject matters of the 2^nd and 3^rd charges.

7.  On 14 February 2011, the 2nd Defendant and another male approached two students in a park in Wong Tai Sin. A similar modus operandi was used and the students were asked to surrender their mobile phones with a total value of HK$2,000. Before he left, the 2nd Defendant claimed that he was a police officer attached to Wong Tai Sin District. These are the subject matters of the 4^th and 5^th charges.

8.  On 19 February 2011, the two Defendants approached two students in Kwun Tong. The same modus operandi was used. The 2nd Defendant further claimed that he was a member of “Tsim Sha Tsui Lo Sun” and alleged that someone had stolen the mobile phone of his follower. He then asked for the students’ mobile phones for checking. This time, one mobile phone which was valued at HK$4,700 was taken away. These are the subject matters of the 6^th and 7^th charges.

Mitigation – the 1st Defendant

9.  The 1st Defendant is aged 24 and is single. He was born in the Mainland and came to settle in Hong Kong in 1988. His parents have divorced and he lived with his mother. The 1st Defendant was educated up to Form 2 level. Prior to his arrest, he had worked as a casual worker in a mahjong school, earning about HK$10,000 per month.

10.  In mitigation, it was said that the 1st Defendant was a gambler and had owed a heavy debt. Being hard pressed for the repayment of the debt, he then committed the present offences. The 1st Defendant was said to be remorseful now.

11.  Despite his relatively young age, the 1st Defendant has been before the court on 5 previous occasions with 23 convictions. 21 of those were theft or robbery related offences.

Mitigation – the 2nd Defendant

12.  The 2nd Defendant is now aged 24 and is single. He lived with his mother and younger brother. His mother was said to have been suffering from cervical cancer and therefore required money for the operation. In order to assist his mother, the 2nd Defendant had two jobs during the day and night but he eventually lost both. It was said that, as a result, he then committed the present offences in order to earn some quick money.

13.  Again, despite the 2nd Defendant’s relatively young age, he has been before the court on 5 previous occasions with 33 convictions. 23 of those were theft or robbery related offences. 

Sentencing Considerations

14.  There are no tariffs laid down for any of the offences committed by the Defendants in the present case.

15.  Having considered the facts, I regard the following as aggravating factors for the theft charges :

(1) The offences were acts of joint enterprise and were clearly premeditated;

(2) The offences were committed by two adult males preying on young students who were generally less suspicious and less mature;

(3) On each of the occasions, the Defendants made utterances to the students so as to make them follow their instructions. As a result, the students surrendered their mobile phones either out of fear or because they were misled;

(4) On each of the occasions, one of the students was taken away from his group and was asked to follow the Defendants. No doubt, that student must have had a lot of stress and fear when travelling with such strangers during the journey; and

(5) The Defendants repeatedly committed the offences over a short period of time.

16.  Further, it is clear from their criminal records that these two Defendants were co-accused in the earlier case DCCC 212/2007 in respect of which they were sentenced for various “theft”, “robbery”, “attempted theft” and “claiming to be a member of a triad society” charges. The prosecution has provided the court with the brief facts in relation to that case and it was revealed that a modus operandi similar to the one employed here was used in those cases.

17.  No doubt, a defendant would not and should not be punished for his previous convictions. However, it is clear that the previous sentences imposed did not have sufficient deterrent effect to stop these two Defendants from committing the offences in the present case and this is a matter which I should take into account when considering the appropriate sentence in this case. 

18.  Concerning the “falsely pretending to be a public officer” and “claiming to be a member of a triad society” charges, the 2nd Defendant committed these offences in order to get the students’ mobile phones. Considering the circumstances, I have no doubt that when these claims were made, the students were put under pressure and would more easily succumb to the 2nd Defendant’s demands. 

The Starting Points Adopted

19.  In view of the facts of this case, the aggravating factors identified above, and that the Defendants have not been deterred by the sentences previously imposed, I consider a starting point of 18 months to be appropriate for each of the theft charges.

20.  As regards the charges of “falsely pretending to be a public officer”, the statutory maximum is a term of 6 months’ imprisonment. On the facts of this case, I consider a starting point of 3 months to be appropriate.

21.  Insofar as the charge relating to the triad member claim is concerned, I would adopt a starting point of 9 months. The claim was made to the students under broad daylight in an open area by the 2nd Defendant who was a complete stranger to them. As I have mentioned above, it was clear that the claim was made in order to threaten the students to yield to the 2nd Defendant’s demand so that the students would part with their properties. I regard these as aggravating factors.

The Sentence Imposed

22.  Having considered all that was said on behalf of both Defendants, I do not see any strong mitigating factors other than their pleas. For that, each of them will be given a 1/3 reduction.

23.  In other words, the 1st and the 2nd Defendants will be sentenced to a term of 12 months each for charges (1) and (6). In addition, the 2nd Defendant will be sentenced to a term of 12 months each for charges (2) and (4); 2 months each for charges (3) and (5); and 6 months for charge (7).

The Totality Principle

24.  Having considered the totality principle, I make the following orders :

The 1st Defendant

(1) 7 months of the 12-month term for charge (6) are to run consecutively to the sentence imposed for charge (1), making a total of 19 months’ imprisonment.

The 2nd Defendant

(1) 6 months of the 12-month term for charge (2) are to run consecutively to the sentence imposed for charge (1);

(2) 1 month of the 2-month term for charge (3) is to run consecutively to the sentences imposed for charges (1) and (2);

(3) 6 months of the 12-month term for charge (4) are to run consecutively to the sentences imposed for charges (1) – (3);

(4) 1 month of the 2-month term for charge (5) is to run consecutively to the sentences imposed for charges (1) – (4);

(5) 6 months of the 12-month term for charge (6) are to run consecutively to the sentences imposed for charges (1) – (5);

(6) 3 months of the 6-month term for charge (7) are to run consecutively to the sentences imposed for charges (1) – (6), making a total of 35 months for all 7 charges.