HKSAR v. LI WAI HUNG

DCCC 445/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 445 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  In this case the defendant faces 28 counts of theft. Upon his plea and admission of the facts, he is convicted of 15 counts with the rest of the charges remaining on the court file.

Facts of the case

2.  The offences took place within a span of six months, between September 2014 and February 2015. The victims are all young schoolgirls with ages ranging from 14 to 18.  They all took place in public places such as MTR stations, bus stops and shopping malls.

3.  The facts of each case are practically identical.  In each of these cases the defendant approached the victim, invented a story to gain her sympathy and trust before asking her for a loan or/and the use of her smartphone.

4.  The stories he made up are almost identical.  He had lost his wallet/backpack/money/mobile phone and needed help.  Except for one case (Charge 8) in which the victim lent him $3,500, every time the defendant managed to walk away with the victims’ cell phones and, in some cases, a small loan.

5.  In all, he managed to obtain $51,000’s worth of smartphones and cash loans of $4,820:-

Charge	Excuse	Victim’s Loss
1	Lost money, borrowed smartphone to show family	1 smartphone $5,600
2	Lost mobile phone, borrowed victim’s to show to his Mother	1 smartphone $5,000 1 Octopus Card $50
3	Lost wallet, borrowed money and smartphone	1 smartphone $4,500 $100
4	Lost wallet, borrow smartphone	1 smartphone $5,800 $20
5	Lost wallet, borrow smartphone to show mother	1 smartphone $6,000 $120
6	Lost belongings in taxi, borrow smartphone to show Mother	1 smartphone $5,000
7	Lost money in a taxi, borrowed smartphone	1 smartphone $5,600
8	Lost money in a taxi	Cash loan $3,500
9	Lost mobile phone, borrowed smartphone	1 smartphone $3,500 $50
10	Lost mobile phone & wallet, asked for a loan	1 smartphone $5,500 $820
11	Lost mobile phone, borrowed phone to show mother	1 smartphone $5,200
12	Lost mobile Phone and wallet, asked for a loan and her mobile phone to show mother	1 smartphone $1,000 HK$90
13	Lost mobile phone and wallet, asked for loan of mobile phone, cash and octopus card	1 smartphone, $3,000 1 octopus card, $70
18	Lost mobile Phone and brief case, asked to borrow mobile phone to show mother	1 smartphone $1,800
28	Lost belongings in a taxi, asked for loan and her mobile phone to show his parents	1 smartphone, $3,500

Discussions

6.  These offences are a variety of “Street Deceptions” and probably are of the crudest form.  It involved only one person.  He only had to lie and be persuasive to a kind-hearted stranger.  But the offences are definitely not an opportunistic crime. Granted that it is relatively unsophisticated, it is, as evident in its repeated successes, surprisingly effective on the young, trusting and gullible. 

7.  In my view, the defendant had a cynical disregard for the law and human kindness.  This kind of behaviour would poison our society and, if unabated, we will end up with a younger generation of cynical and heartless people.  His behaviour calls for a deterrent sentence.

8.  It may be that the loss of each victim in each charge is relatively small; however, bearing in mind they are young students, the smartphones, and in the case of Charge 8, the loan of $3,500, are probably their most valuable and treasured property, the loss of which would cause them great inconvenience and distress.  Furthermore, a smartphone in these days contain large quantity of personal data.  The inconvenience caused by losing it will not be only financial.

9.  In my view, the offence therefore is comparable to pickpocketing offences: 

“One of the rationale as to why pickpocketing offences were serious is the inconvenience on the victim in having deprived of identity and other credit cards in the wallet. The same rationale should apply to snatching a mobile phone where present technology allows the storage of large amount of personal data in the phone.[1]”

10.  Another aggravating factor is that the defendant is a persistent offender.  At the age of 37, the defendant has 12 previous convictions involving 94 charges, of which 92 were dishonesty related offences.

11.  In the District Court Case Li Wai Hung[2], the same defendant was charged with and convicted of 31 counts of Obtaining Property by Deception, contrary to section 17(1) of the Theft Ordinance. They were committed with the same modus operandi.  Obviously, the previous sentence orders were not enough to deter him from further offending. 

12.  I accept that a person is not to be sentenced for his previous transgressions but his constant repetition of the offence is by itself an aggravating factor.  In the present case it is in the public interest that a heavier sentence should be passed to prevent repetition in the future[3].

Authorities

13.  Most of the cases I have come across are magistrates’ appeals usually involving less number of counts.  In the Lee Cheuk Fai (transliteration)Case[4] a “borrow telephone” case; the learned Deputy High Court Judge found that it was akin to an opportunistic offence and considered that the appropriate starting point should be 4 months’ imprisonment, increased to 5 months to reflect that he was a persistent offender. 

14.  In the Kong Ching Ha Priscilla (江清霞)[5]  Case, the facts involved two charges of theft.  The defendant first borrowed the telephone of her new found friend and disappeared with it.  She then demanded a ransom for the return of the telephone.  Clear record.  The magistrate found that the defendant had planned the offences and that she was “manipulative” and “calculating”.   The learned Deputy High Court Judge on appeal found a total of 12 months’ imprisonment appropriate.

15.  In the Wong Kai Chung (transliteration)[6] case, there were seven counts of theft of telephone.  In six of the cases the defendant stole from the victims he befriended in the internet and met for the first time.   The last case involved a theft of telephone and cash from a friend.  The defendant had nine previous convictions.  The trial judge adopted 9 months’ imprisonment as a starting point, reduced to 6 to reflect the guilty plea, part of the sentence for 6 charges to run consecutive, making a total of 24 months’ imprisonment.  On appeal, the learned Deputy High Court Judge did not consider the total sentence manifestly excessive.

16.  The above are some of the examples on roughly similar facts.  They do not set out any sentencing principles so they are not binding authorities.  They do afford the perspective of the kind of sentences I should be contemplating.  The present case is probably the worst of the lot.  The repeated offending by the defendant and his appalling previous record are probably the reason why he is tried in the District Court.

17.  My attention has also been drawn to the Court of Appeal case of HKSAR v Li Wai Hung[7]. This is an appeal by the defendant in this case but in respect of a different set of charges in different proceedings:

“On 16 January 2009 the defendant was convicted of 31 counts of obtaining property by deception. His modus operandi was identical to that in the present case. The total value of the goods obtained was in excess of $64,000. For the first 16 charges, the trial judge adopted a starting point of 6 months. As for the remainder of the charges, the trial judge divided the charges into groups in order to take into account the overall culpability. He ordered sentences of the offences in the same group to run concurrently but to run consecutively with the other group. The final sentence was 36 months’ imprisonment.

The Court of Appeal agreed that a starting point of 36 months was appropriate but remarked that:

“The issue of persistence of criminal activities can be more easily be considered when the judge applies the totality principle to achieve an appropriate relativity between the totality of the proven criminality and the totality of the sentences imposed.”

18.  On the facts of the case the sentence was increased by 25 per cent upon the prosecution’s application under section 27 of the Organised and Serious Crimes Ordinance, Cap 455.  The prosecution confirmed that no application for enhanced sentence is made in the present proceedings.  The learned District Judge arrived at the original starting point after referring to a number of magistrates’ appeals, in particular, the case of Wong Kai Chung[8] where the appellant pleaded guilty to seven counts of theft committed in a similar manner.  On a guilty plea, he was sentenced to 6 months’ imprisonment for each count.  The total sentence order of 24 months was upheld.

19.  Having considered the entire circumstances of the case and the defendant’s overall culpability, I would consider that an order of 36 months’ imprisonment appropriate starting point for each count. 

Mitigation

20.  As stated above, the defendant had an appalling record.  At the time of the offences he was already an adult.  He could claim no allowance for being young or having no previous conviction. 

21.  The defendant is also a persistent offender, but this has been taken into account when I adopt the starting point of 36 months.  As such, I would be double-punishing him if I should increase the severity of the sentencing order. 

22.  The defendant’s lawyer told this court that the defendant had been a street sleeper after he was discharged from the last incarceration.   He had no social support to lean on.  These personal circumstances are no valid mitigation. 

23.  The only valid mitigating reason is his plea of guilty and his sentence for each count is therefore reduced to 24 months.

24.  By the reason stated above, I order that for each count, the defendant is sentenced to 24 months, all to run concurrently.