HKSAR v. YU KWOK YUNG AND ANOTHER

DCCC 1243/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1243 OF 2010

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Reasons for Sentence in respect of D1

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Charges and facts

1.  The prosecution alleges D1 and D2 together went to various carparks to smash private car windows to steal the audio-visual decks as well as other property.  D1 is convicted after trial of 3 joint charges of theft (Charges 9, 11 and 22).

2.  On 6 March 2010, PW1 Ng Kin-hung (Charge 9) and PW2 Fu Siu-hong (Charge 11) each parked his private car in Kwai Chung Carpark.  On 20 July 2010, PW4 Kwok Ying-kit (Charge 22) parked his private car in Beverly Garden Carpark.  Each was notified to inspect his car, only to find the car window smashed with a valuable audio-visual deck prized out from the rack and stolen, among the loss of other items inside the car as particularized in the charges. 

3.  PW1 lost, among others, 1 MP3 Player.  PW2 lost, among others, 1 micro SD card.  Both items were later seized from D1’s office.  PW4 lost, among others, 1 USB memory stick marked “SPINNER”. It was later seized from D1’s car.  

4.  PW5 PC 48856 observed D1 drive a person to the carpark where PW4 parked his private car (Charge 22).  That person came out with a golf bag and a blue baby car seat.  D1 helped to put them into the car and drove away.  Later in the day, PW5 arrested D1. 

5.  In his VIRs, D1 admitted being a friend of D2.  D2 sometimes went to his office cum garage to play or work on a casual basis. He denied having been to the crime scenes.  PW1’s MP3 Player, PW2’s micro SD card and PW4’s USB memory stick marked “SPINNER” were, among other items seized from his office or car, gifts from D2.  He was told they contained songs.  He did not pay much attention to them.  He did not know they were stolen property. 

6.  In the Judgment, I rejected D1’s alleged provenance of the said exhibits in the VIRs.  My finding was that in each of the 3 instances (Charges 9, 11 and 22), D1 had driven D2 to the carpark to smash the car window and prise out the audio-visual deck from the rack.  D1 had driven D2 away with the stolen property such as the audio-visual deck, apart from other stolen property such as the MP3 Player, the micro SD card and the USB memory stick marked “SPINNER”.  D1 had knowingly taken part in both the theft and the subsequent retention of his share of the stolen property. 

D1’s personal background and mitigation put forward

7.  He is 38 years of age, F.1 education.  He lives with his wife and 5-year-old daughter.  He runs a parallel car importing business.  He has 13 convictions for dishonesty crimes, such as robbery, going equipped for stealing, handling stolen goods and theft since 1991.  Specifically on theft from vehicle, he has 7 convictions between 1996 and 2009, each resulting in imprisonment.  He was last released from prison on 4 January 2010.

8.  Whilst accepting that he can be regarded a recidivist for theft from vehicle and this being an aggravating factor in sentence, defence counsel asks me to view the present case as somehow analogous to nuisance and in a way not menacing.  I do not agree with this analogy.  If an analogy is called for, it is much nearer to burglary with forcible entry and damage of property in the course.     

9.  Defence counsel reminds me to take into account D2’s sentences to avoid disparity.  D2 had pleaded guilty to 14 single charges, and 6 joint charges, of theft from vehicle in the present case.  The sentencing judge regarded the offences as “serious” and D2 a “persistent” offender.  She gave D2 a starting point of 9 months for each charge.   He was sentenced to 30 months’ imprisonment in total.  There is no reference to any sentencing examples or the criminal record to demonstrate how persistent D2 was in committing theft from vehicle in her Reasons for Sentence.  A subsequent check of D2’s criminal record (by me and drawn to defence counsel’s attention) reveals that he has 10 convictions for theft, 6 of which specifically for theft from vehicle.  On their respective criminal records, D1 and D2 have demonstrated equal persistency in committing theft from vehicle. 

10.  I agree with defence counsel that disparity in sentences for similar cases ought to be avoided. 

Sentencing considerations

Sentencing examples

11.  There are no sentencing guidelines.  Here are some comparable cases in ascending gravity:

HKSAR v Fok Ling HCMA 439/2003:

(a) The appellant pleaded guilty to the stealing of some parts of the exhaust pipe from a goods van for his own use. He was sentenced to 4 months. On appeal community service was ordered in view of his steady family background, good work history and light criminal record.

HKSAR v Lui Man Kit (D2) DCCC 25/2009:

(b) The appellant pleaded guilty to a number of charges, including a theft from vehicle where he prized off the lock of the door and stole the vehicle licence, some cleaning equipment and four spark plugs. The sentencing judge sentenced him to 7 months on that particular charge.

HKSAR v Cheung Chi Hung HCMA 55/2008:

(c) The appellant was dismantling the radio communication device inside a goods vehicle when spotted by a driver in a car passing by. He had also damaged 2 goods vehicles nearby. He assaulted the police officer before the arrest. He pleaded guilty to the 3 charges of attempted theft from vehicle and 1 charge of assaulting a police officer. The assaulting charge resulted in 2 months, 1 month of which was to be consecutive to the overall 10 months for the 3 thefts. His overall sentence of 11 months was upheld on appeal.

HKSAR v Woo Ming-on HCMA 1028/1997

(d) The appellant stole a mobile phone from inside a light goods vehicle. It was accepted that he did so on the spur of the moment. The Court of First Instance affirmed a starting point of 12 months.

HKSAR v Cheung Wing Sun [2008] 1 HKCLRT 180:

(e) Shortly after 4 a.m., the appellant was pushing open the door of a car to get off when spotted by a police officer. He immediately closed the door to stay inside. The police officer questioned him and under caution he admitted having stolen $40 from inside the car. On appeal to the Court of First Instance, the starting point was reduced from 18 months to 15 months.

HKSAR v Lui Man Kit HCMA 498/2006:

(f) The appellant stole the digital camera, the audio equipment, the two front seats and the gear lever from a car (Charge 1). On 2 other dates, he stole the vital components (whose particulars were not given in the Reasons for Judgment) of the same car (Charges 2 and 3). On still another date, he and his accomplice were stealing from the same car items including its rear wheels when spotted and arrested by the police (Charge 4). His sentences were aggravated for being committed whilst on bail for an offence. He was sentenced to 12 months on pleas on guilty. The Court of First Instance upheld his sentences on appeal.

The Queen v Wong Kwong-yin HCMA 264/1988:

(g) The appellant committed 6 thefts from vehicles on two consecutive nights in Tai Po area. The stolen property consisted of clocks, radios and tools. On appeal to the High Court, the overall starting point was reduced to 18 months.

Sentencing D1

12.  If D2 is the one to supply brute force, then he is the one to supply the logistics.  He used his own car to drive D2 to the carparks.  He used his own car and office to store the stolen property.  His role was pivotal and more culpable than D2.  Valuable property, such as the audio-visual decks and baby car seat, was stolen and unrecovered. The car owners had to spend money on new windows.  They carried out their ploys in a preset system.  These 3 instances were much more serious than any of the aforesaid sentencing examples.  Acting in concert with D2 and aggravated by his recidivism, his sentence warrants a starting point of 2 years for each charge.

13.  He has no effective mitigation.  His overall sentence is 2 years and 6 months after totality adjustment as follows:

(1) Charge 9: 2 years;

(2) Charge 11, with 3 months consecutive to other charges;

(3) Charge 22, with 3 months consecutive to other charges.