HKSAR v. LEUNG CHI WAH

DCCC956/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 956 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four offences of theft, six offences of obtaining by deception, and one offence of burglary, these offences taking place between 12 and 23 May of this year.

2.  The defendant has accepted the facts put to him and I have convicted him of those offences.

3.  The first offence occurred on 12 May 2011, where the victim, PW1, lost his Hang Seng passbook and the defendant later admitted he found it and retained it.

4.  The second offence occurred on the next day, 13 May 2011, when the victim, who is PW2, left her rucksack unattended in a chair at the Pacific Coffee Company in Central.

5.  The defendant took the rucksack.  It contained cash, ID cards, bank passbooks and a Visa card, and other property totalled at about $5,450.

6.  The third offence was of a similar nature, occurring on 15 May 2011, involving the theft of a wallet from a handbag left unattended in Pacific Coffee near Sheung Shan in Hong Kong.

7.  The wallet, as I said, had been taken.  It contained items valued at about $1,387, together with a Visa card and other credit cards.

8.  There were six transactions committed with the cards stolen on 15 May.  That was a Barclaycard Visa card.

9.  On 15 and 16 May, the defendant used the stolen Visa card to obtain:

(1) a suit valued at $599 (that is Charge 4);

(2) a watch valued at $5,580 (that is Charge 5);

(3) some foodstuff from a Maxim’s cake shop on 16 May, valued at $200-odd (that is Charge 6);

(4) and then a pen valued at $1,480 (in Charge 7);

(5) and an umbrella valued at $160 (in Charge 8);

(6) and then a meal at a restaurant in SOGO, again, round about $200 (in Charge 9).

10.  All except the 6th charge were committed at SOGO.

11.  The next charge I am concerned with is Charge 12, and on 23 May, the defendant stole a rucksack from McDonald’s restaurant in Central.  The rucksack contained various items totally valued at $1,265-odd.

12.  On the evening of that day, that is 23 May 2011, the defendant committed the final charge, 13, when he entered the staff members’ room and stole a travel bag in a locker that had been left there by a staff member.

13.  The total value of the items in that travel bag, which contained such items as a notebook computer and a calculator, was $4,550.

14.  The defendant was apprehended in the early morning of 24 May, and he was searched by police, and various items taken during the various thefts and burglaries were found on the defendant.

15.  The travel bag that was stolen in the 13th charge was recovered from the lane nearby.  Another abandoned bag was discovered as a result of the defendant informing the police about it, and that contained other stolen properties.

16.  The defendant was interviewed and made admissions.

17.  The defendant accepted all these facts and was convicted accordingly.

18.  The defendant is hitherto of clear record.  He is 54 years old, and mitigation was advanced on his behalf by Mr Mayne.

19.  From that, I discovered the defendant is married but has no children.  He was educated up to the age of 18, when he completed Form 3.

20.  Since then, he has had various employments.  He has worked as a warehouse attendant, a security guard, a waiter at Maxim’s in City Hall, a delivery van worker, an insurance agent.  He has had periods of unemployment.  He was working as a delivery worker for Maria’s Bakery and a waiter at the Aberdeen Yacht Club, becoming unemployed when he was about 45.

21.  He says he had some difficulty in finding employment again, but he did say when he was about aged 47, and he married in 2005 when he was 48 years old.  He has been working at various Chinese restaurants since then.

22.  I was told that he committed the offences because he was in financial difficulties.  Debt collectors had been pressing him hard for repayment and that can be very distressing for people when this kind of debt-collecting activity takes place.

23.  The defendant admitted he had built up what for him would have been substantial debts in relation to gambling. I am told that he owed a total of $89,000 to various finance companies.

24.  The defendant was dismissed from his employment on 27 May 2011 for being absent without leave.

25.  I am told the defendant is remorseful. He had made full admissions.  He revealed to the police where he had abandoned some of the stolen property.

26.  The defence counsel helpfully calculated the total value of the property stolen on all the charges the defendant pleaded guilty to.  It was $20,873.50.

27.  From pawning the various items involved in the charges, he received about two to three thousand dollars.

28.  It is also said that the analysis of the facts of this case shows that these are opportunistic crimes.  They did not involve long-term planning.  They did not involve obtaining large sums of money.  The defendant has never been a professional criminal.

29.  I obtained a background report on the defendant. It bore out, to a certain extent the mitigation put forward by the defendant. It shows the picture the defendant has worked most of his life as a restaurant worker. His employment became more unstable as he got older.  He had incurred debts from lending companies as a result of his gambling problems.  He had been helped out financially by his family members.

30.  The defendant admitted he committed the offences out of greediness because of his debts and he referred to his age, his clear background, and asked for leniency.

31.  This is a somewhat unusual case.  The defendant has gone on what really is a crime spree at the age of 54, having hitherto lived a life involving no criminality at all.

32.  He is entitled to some benefit for that.

33.  The way in which the defendant set about his criminal spree has involved him in what are quite serious offences, and that is why he finds himself in this court.

34.  For example, for the use of a credit card in these circumstances, one can take a starting point of a sentence of up to 3 years’ imprisonment.

35.  For a burglary, such as the one committed at the McDonald’s staff quarters, a starting point of up to 30 months’ imprisonment can be adopted, this being a burglary at a non-domestic premises.

36.  The thefts of wallets from unattended handbags and such like lead to starting points of up to 18 months’ imprisonment.

37.  So, the defendant has, as I said, involved himself in serious criminality.  That, to a certain extent, has to be reflected in the sentencing.

38.  Also to be reflected is the fact that the defendant has reached at least middle age, or late middle age, as a man of clear record.  He has been hardworking and industrious.

39.  His criminality involves petty thefts, and these crimes were committed to enable him to live, as it were, on the run, and I am sure that the defendant has now learnt his lesson from this, and I have to approach sentencing reflecting all the factors I have set out and then I have got what is a correct overall total sentence.

40.  Now, I will proceed as follows.

41.  I will say the starting point of a sentence and, as it were, after discount, the final sentence in respect of each charge.

42.  The 1st charge has to be looked at as a theft by finding.  I will take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for his plea of guilty.

43.  The 2nd and 3rd charges involve thefts from unattended bags.  This is more serious and is akin to pickpocketing.

44.  In respect of the 2nd and 3rd charges, I will adopt a starting point of 15 months’ imprisonment, reduce that to 10 months’ imprisonment for plea of guilty.

45.  So Charge 2 and Charge 3, he will be sentenced to 10 months’ imprisonment.

46.  The Charges 4 through to 9 involve the use of a credit card.  These are serious offences.

47.  Although they do involve the obtaining of rather low-value items, I will have to reflect the nature of the crime, and I will take a starting point at 27 months’ imprisonment in respect of each of those charges and reduce those to 18 months’ imprisonment for the defendant’s plea of guilty.

48.  So on the 4th, 5th, 6th, 7th, 8th and 9th Charge, will be a sentence of 18 months’ imprisonment.

49.  On the 12th charge, for reasons I have already given in relation to the 2nd and 3rd charge, I will take a starting point of 15 months’ imprisonment and reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

50.  Finally, for the burglary in the 13th charge at the McDonald’s restaurant staff quarters, I will take a starting point for non-domestic burglary of 30 months’ imprisonment and reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.

51.  I have to, as it were, approach this on the basis this forms part of a series of offences and try to arrive at a overall total sentence.

52.  I shall take the first nine charges will be served concurrently; 1 to 9 will be served concurrently.

53.  That is a total of 18 months’ imprisonment, and the 12th and 13th charges will also be served concurrently to each other.

54.  So 1 through to 9 will be served concurrently to each other, and 12 and 13 will be served concurrently to each other.

55.  However, 12 months of 1 through to 9 will be served consecutively to 12 and 13, and the balance of 6 months will be served concurrently.

56.  This leads to a total sentence of 32 months’ imprisonment.