HKSAR v. WAN HON KEUNG, HONY

DCCC 892/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 892 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 14 March 2016, the defendant was convicted, on his pleas of guilty, of six charges of theft.  They were the first to third charges, and the fifth, eighth and tenth charges on the Charge Sheet; the six charges were all laid against him pursuant section 9 of the Theft Ordinance, Cap 210.  Upon the defendant’s conviction of those offences, the prosecution applied to have the remainder of the charges left in the court file.  The defence had no objection to that application.  In consequence, the fourth, sixth, seventh, ninth and eleventh charges were ordered to be left in the court file marked not to be proceeded with without leave of the court or that of the Court of Appeal.

Facts

2.  Mr KS Yeung owned a private vehicle bearing the registration mark “EF9892”.  On the morning of 14 February 2015, he went to the location where he had previously parked it, ie., outside House No.1, O Long Village, Sai Kung.  He found the window of his car smashed and that a recycle bag worth $10 and one set Nike sportswear worth $300 had been stolen from the vehicle.  The estimated cost of repair of the window was $10,000.  (Charge 1) That afternoon, another car owner Mr LY Ong discovered that his car “RR7251” which he had parked outside House No.11, Man Sau Sun Tsuen, Sai Kung, had its window smashed and that one rucksack worth $1,000 and some documents had gone missing. The repair cost to the window was about $10,000.  (Charge 2)

3.  On 7 June 2015, Mr Kenneth KC Chiu went to retrieve his car “DH8322” outside No.117F, Nam Shan Village, Sai Kung, only to find its window smashed and that a coin box containing about $20, a card-holder worth $300, one “Shell” petroleum card, and one “United Service Recreation Club” parking card had been stolen.  The cost of repair of the window was about $3,000. (Charge 3)  Later that month, on the morning of 24 June 2015, Ms LN Tse went to a parking space outside House No.56, Kap Pin Long Village, Sai Kung, where she had previously parked her car “PA8860”.  She discovered the window of her car had been broken and that the following items had gone missing from the car: one iPad worth $4,000, cash in the sum of $7,000, and ten pre-paid petroleum cards with a total stored value of $10,000.  The repair cost was estimated to be some $36,000. (Charge 5) 

4.  On the morning of 30 June 2015, Ms Desiree A Maria Van der Hoeven retrieved her car “RP4078” outside House No.67, Greenfield Villa, Ngau Liu, Sai Kung.  She found the car window smashed and that an HSBC Credit Card, two HSBC ATM cards, a Standard Chartered Bank Credit Card, two Octopus cards, and cash in the sum of $1,200 had gone missing from the car. The estimated cost of repair to the car was $3,000. (Charge 8)  That same morning, outside House No.56, Greenfield Villa, Mr W Pamuk found the window of his car – which bore the registration mark “RP7321” – smashed, and that the following items had gone missing: his HKID card, an HSBC Credit Card, two HSBC bank cards, two drivers’ licences, an ANZ Bank Credit Card, an Octopus card, and cash in the sum of $500.  It was estimated that the repair to the car would cost some $1,600. (Charge 10) 

5.  On 7 July 2015, the police arrested the defendant at his residence at Po Lo Che Road, Sai Kung.  They carried out a house search there and recovered six pre-paid petroleum cards, belongings of Ms LN Tse (Charge 5).  Under initial and subsequent caution, he admitted to committing the six offences, smashing the car windows with a stone, as he was sick and out of work, but he claimed to have taken some small changes only; he said he had used the money stolen from the cars on food and beverages in Shenzhen. 

Mitigation

6.  The defendant was born in Hong Kong in June 1968 and is now 47 years old.  He has received education up to Form Two level and has until October 2014 worked as a renovation or construction worker; he has stopped working due to health reasons.  He is married, but his wife and two children are living on the mainland.  He has eight criminal records involving a total of 15 offences, six of which are identical to the present offences. 

7.  Appearing for the defendant in his plea in mitigation, Mr Ching informs the court that the defendant is the sole breadwinner of the family, contributing some $5,000 a month towards his wife’s household expenses.  In respect of the defendant’s criminal records, Mr Ching invites the court to consider that the defendant has been out of trouble for more than 15 years, his last conviction having been entered against him in January 1998. As to the present offences, Mr Ching stresses that the defendant has smashed the car windows with the use of stone only, and that the first and second charges took place on the same day, as did the eighth and tenth charges.  Mr Ching submits that but for the defendant’s admission, there might not have been sufficient evidence to prosecute him with the charges other than the fifth charge.  Mr Ching relies on a certificate of appreciation, one which the defendant was rewarded in 1993 for offering his assistance to the law enforcement agencies in an indecent assault case, and he asks the court to sentence the defendant having regard to the principle of totality.

Consideration

8.  While it is correct that the defendant has stayed out of trouble for some time, he has not started to re-offend by committing a solitary charge; instead, he has committed a total of six offences over a period of four months.  The losses and the repair costs occasioned by the defendant’s offences cannot be described as minimal or negligible.  Despite the long period – as demonstrated by his criminal records – in which the defendant has lived a law-abiding life, it is the court’s view that he is a recidivist with respect to the offence of theft from vehicle.

9.  In HKSAR v Choi Keng Pun[1](transl), a District Court case, the defendant received a total sentence of 19 months’ imprisonment for six charges of theft from taxi, the effective overall starting point being slightly in excess of 27 months’ imprisonment.  In another District Court case, namely, HKSAR v Yu Kwok Yung and anor[2], the first defendant, a recidivist, smashed the windows of various cars to steal audio-visual equipment from them; after trial, he was sentenced to 30 months’ imprisonment for three charges of theft from vehicle.

10.  In the instant case, having regard to the losses suffered by the various car owners, the inconvenience that must have been occasioned to them, the multiplicity of offences, and in all the circumstances of the case, the proper overall starting point should be one of 30 months’ imprisonment.  The defendant is entitled to one-third discount for his guilty pleas; the overall sentence should be 20 months’ imprisonment. 

11.  Little in the defendant’s background and the circumstances of the commission of the offences would warrant any further reduction in sentence.  There are, however, merits in Mr Ching’s submissions with respect to the defendant’s co-operation with the authorities subsequent to his arrest.  In the court’s view, offenders should be encouraged to render assistance to the police at all stages of their enquiries; in the defendant’s case, a further two-month discount in sentence on this score is in order.

12.  To give effect to that overall sentence, a starting point for each of the six offences of which the defendant stands convicted is 18 months’ imprisonment, which is reduced to 12 months each on account of his guilty plea. 

13.  Considering the principle of totality, it is ordered that the sentences for the first and second charges are to be served concurrently, the sentences for the third and fifth charges are to be served concurrently, and the sentences for the eighth and tenth charges are also to be served concurrently.  It is further ordered that four months of the concurrent sentence in respect of the third and fifth charges are to be served consecutively to the concurrent sentence for the first and second charges, and that, taking into account the defendant’s post-arrest co-operation with the police, only two months of the concurrent sentence in respect of the eighth and tenth charges are to be served consecutively to the combined sentence for the rest of the charges.  The final sentence for the six offences is one of 18 months’ imprisonment.

Conclusion

14.  For the offences in the six charges of which he stands convicted, the defendant is sentenced to 18 months’ imprisonment.