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DCCC 302 & 631/2015
Consolidated
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NOS. 302 AND 631 OF 2015
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HKSAR |
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v |
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CHENG KIN YIP |
2nd Defendant |
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FUNG YIP SHING |
3rd Defendant |
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| Before: |
Deputy District Judge Kathie Cheung |
| Present: |
Mr Phil Chau, Counsel on Fiat, for HKSAR |
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Mr Oliver Davies, instructed by Wong & Co, for the 2nd and
3rd Defendant |
| Offence: |
Criminal damage （刑事損壞） |
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REASONS FOR SENTENCE
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1. The 2nd and 3rd defendants pleaded guilty to one count of “Criminal damage”, contrary to section 60(1) of the Crimes Ordinance, Cap. 200.
Facts
2. The Fulum Group run under the business registration named “Luck China International Trading Ltd.” operates 57 restaurants in Hong Kong. In October 2014, the Group rented a 10,000 square foot premises at Ground Floor and 1st Floor, Kin Wing Commercial Building, Nos. 24-30 Kin Wing Street, Tuen Mun. The new restaurant was undergoing renovations and was slated to open for business on 5 December 2014.
3. Security guard Ng Lai Kuen was on duty at the restaurant in the evening of 4 December 2014. At about 0050 hours on 5 December 2014, whilst Mr Ng was working on the 1st floor of the restaurant, he heard loud noises emanating from the ground floor. Many people were shouting. There was a “pak” sound when someone prized open the glass door of the main entrance.
4. Mr Ng then saw 6-7 masked men holding large hammers and crowbars. Some of them were also holding plastic buckets filled with paint.
5. One of the males told Mr Ng not to move. They then started to vandalize the restaurant. Their actions included splashing red / green paint over various properties such as the sides of the escalators, fish tanks, floor, ceiling, dining tables and the cashier’s desk and smashing the glass walls inside the restaurant and the television monitors.
6. The males remained inside the restaurant for about 5 minutes and then left quickly. Mr Ng thus reported to the police.
7. CCTV footage captured the males vandalizing the restaurant. The damages caused were estimated to be around HK$100,000. The restaurant was insured.
8. At around 0038 hours on the same day before the males entered the restaurant, bus captain Ng Kai Yu was waiting to refuel his bus at the KMB Depot, which is two blocks from the restaurant. He saw a Mercedes Benz (V1) driving towards his bus. V1 stopped on his right side. Mr Ng noticed that the front and rear licence plates of V1 were covered with white tissue paper. Inside V1 were two males whose faces were hidden by masks.
9. Ten seconds later, another Mercedes Benz (V2) arrived and stopped next to V1. The front and rear licence of V2 were similarly covered with white tissue paper. The occupants of V2 were masked and one of them was holding a large plastic bucket.
10. Shortly afterwards, both cars left with V1 in the front. The cars headed towards Kin On Street along Ho Tin Street. Feeling suspicious, Mr Ng reported to the police. During the call to the police, Mr Ng saw the two cars turn into Kin On Street and then lost sight of them.
11. Responding to Mr Ng’s call, police vehicle EU 82 headed towards Kin Tai Street. At around 0052 hours, the police spotted the two cars park on Kin On Street. The licence plates on both vehicles were covered. Officers saw several masked men approach the two cars carrying hammers and crowbars. All of them were wearing hoodies and dark coloured clothing. Some wore white surgical gloves.
12. Using the car’s tannoy, the police ordered the men to stop. The men scattered and fled. Some got into V1 and drove off at high speed. Three men boarded V2 but V2 was intercepted by the police. The three males and the driver thus jumped out of V2 and fled and made good their escape.
13. CCTV footage from nearby KMB Depot showed at 0052 hours, seven men running towards the direction of the restaurant, at 0053 hours, the two cars arrived and at 0054 hours, nine masked males running from the direction of the restaurant to the two cars. Four of the males jumped into V1 and drove off. Two males ran away and three males jumped into V2 which was then intercepted by the police.
14. Upon search of V2, a number of items were found which included a wallet containing the 2nd defendant’s identity card and other belongings and his brother’s octopus card, a mobile phone subscribed in the name of the 2nd defendant’s brother, two hammers and a crowbar, newspapers, plastic bags and masks with red paint and some clothing.
15. The 2nd defendant was arrested at 1212 hours on 5 December 2014. Under caution, he had nothing to say.
16. The 3rd defendant was arrested at 1605 hours on 21 May 2015. Under caution, he said “the case was not done by me.”
17. The 2nd defendant’s DNA was found on four items of clothing seized from the boot of V2 and the mobile phone found on the driver’s seat.
18. The 3rd defendant’s DNA was found on the face mask that was found in the middle of the back seat of V2.
19. Forensic examination revealed that the paint stain on some of the seized items from V2 and the paint found on the rear passenger seat of V2 matched with the paint sample found at the restaurant.
20. Travel index records show both defendants were in Hong Kong on the evening of 4 December to early hours of 5 December 2014.
21. The 2nd and 3rd defendants were two of the masked males who vandalized the restaurant in the early hours of 5 Decameter 2014.
Mitigation
22. The 2nd defendant is aged 26, single and lives with his family. He has 3 criminal conviction records at the time of the offence, none of them relates to criminal damage. Documents were submitted to show the 2nd defendant had taken part in volunteer work in 2012.
23. The 3rd defendant is aged 44, single and lives with his friend. He has 19 criminal conviction records at the time of the offence, none of them relates to criminal damage.
24. In mitigation, it was submitted that this case is unusual in that it is a case of purely criminal damage. It was submitted that there was no evidence of threat, blackmail, triad involvement or violence. It was further submitted that this case is not the most serious criminal damage case although the reason for commission of the offence is not known and the circumstances might be suspicious.
25. Two cases were referred to during mitigation. The first one is HKSAR v Tang Yi Hang, DCCC 1001/2012. In that case, the defendant was convicted after trial of acting as a member of a triad society, assault occasioning actual bodily harm and criminal damage. The facts were that a group of 10 odd persons, some holding bottles, went to a cyber café shouting for triad-related person. They proceed to assault a patron’s head with glass bottles and also threw the computers to the ground causing damage. The loss suffered by the café was about HK$40,000 to HK$50,000. In that case, a starting point of 12 months’ imprisonment was adopted. The second case is HKSAR v Chiang Tai Mei, CACC 288/2001. The appellant was convicted after trial of criminal intimidation, assault occasioning actual bodily harm and criminal damage. The facts as found by the judge were that 10 odd men arrived at the victim’s office. They subdued several staff members and tore the telephone wires. One of them uttered threatening words towards the victim and took out a pistol-like object and pressed it on the lower portion of the victim’s neck leaving a mark on the victim’s neck. At the same time, the appellant struck the victim several times. He then with other men caused damage to the office including a piece of glass, a facsimile machine, a photocopier and a computer. On appeal, the Court of Appeal held that in view of the scope of the damaged caused, which was separate from the facts relating to the first charge, a sentence of 2 years’ imprisonment was manifestly excessive. The Court of Appeal considered that the appropriate sentence was 1 year’s imprisonment. It was submitted that those two cases were far more threatening and serious than the present case. It was further submitted that in both cases, the criminal damage was done to intimidate, which is more serious.
26. Finally, it was submitted that the present case is in the lower end of the scale and the court was urged to impose a lenient sentence.
Sentence
27. There is no sentencing guideline in respect of the offence of criminal damage.
28. In mitigation, it was pointed out that there was no evidence of threat, intimidation or triad involvement. If there was evidence of such, further charges entirely separate from the charge of criminal damage would have been laid against the defendants. Therefore, it is irrelevant to consider the absence of such charges in sentencing.
29. In my view, the manner in which the offence was committed was very organized and professional in that in the early hours of a day, a group of 6-9 males, all masked with some wearing surgical gloves, arriving at the scene in two cars, armed with large hammers and crowbars as well as buckets of paint, forcibly entered the restaurant damaging the items in the restaurant by smashing and splashing paint. Photos show that the damage done is quite extensive and the estimated loss is about HK$100,000. All these damages were done within just about 5 minutes with getaway cars arranged and that the licence plates of these cars were covered to avoid detection. Whilst there is no evidence of triad involvement, the act no doubt carries a triad overtone.
30. In view of the above, in particular the planning and the professionalism in the commission of the offence as well as the damage caused, I do not accept the submission that the facts of this case are less serious than the two cases referred to by the defence. Instead, I consider this case is much more serious than the two cases mentioned by the defence. In the circumstances, I consider the appropriate starting point for this offence should be 18 months imprisonment. Given the defendants pleaded guilty to the charge, each of them is entitled to the usual 1/3 discount for their plea. The sentence is therefore reduced to 12 months’ imprisonment. I hereby sentence each of the 2nd and 3rd defendants to 12 months’ imprisonment.
31. After I have announced the sentence, Mr Davies for the 2nd defendant submitted that for a sentence of 12 months’ imprisonment, one with good behaviour would get the usual 1/3 remission and the actual length of sentence to be served would be 8 months. He then pointed out that the 2nd defendant had been detained for almost 8 months before he was released on bail. If he were to serve the remainder of his imprisonment, he would have to be detained at least for another 30 days before he could get the usual remission for good behaviour. In the circumstances, the actual length of sentence to be served by the 2nd defendant would be longer than he would have to serve. Mr Davies submitted that was unfair for the 2nd defendant.
32. The 2nd defendant had been detained for just under 8 months prior to sentence[1], which would mean that he might have served the sentence I imposed just now if he were to get the remission. It was submitted by the defence that he would very likely get the remission given his good behaviour while being detained. In the special circumstances, I would order the 2nd defendant be immediately released.
33. Mr. Davies forgot to mention in mitigation that the 3rd defendant is now serving a sentence of 5 months’ imprisonment for his last conviction on 14 September 2015. Mr Davies now asked me to take into account the totality principle in sentencing.
34. The two offences for which the 3rd defendant is serving sentence are separate and distinct offence from the offence of the present case. Taking into consideration the totality principle, I order that 10 months of the sentence for the present case to be served consecutive to the sentences for TMCC 2422/2015 and TMCC 2484/2015.
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(Kathie Cheung)
Deputy District Judge |
[1] In the antecedent statement for the 2nd defendant, it is stated that the 2nd defendant was detained for this case from 8 December 2014 until he was released on bail on 4 August 2015.
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