HKSAR v. CHAN YEE MAN AND OTHERS

DCCC 834/2023

[2024] HKDC 603

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 834 OF 2023

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REASONS FOR SENTENCE

D1 and D3 face a joint charge of "Theft" (Charge 1). D1 to D3 face a joint charge of "Theft" (Charge 7). D1 alone faces a charge of "Criminal damage" (Charge 2)  and a charge of "Failure to produce proof of identity" (Charge 9). D2 alone faces a charge of "Theft" (Charge 6). D3 alone faces 3 charges of "Driving without a valid driving licence" (Charges 3, 5 and 8)  and a charge of "Theft" (Charge 4).

2.  D1 pleaded guilty to Charges 1, 2, 7 and 9.  D2 pleaded guilty to Charge 7.  D3 pleaded guilty to Charges 1, 3, 4, 5, 7 and 8. I granted the prosecution's application to leave Charge 6 against D2 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

Background

3.  D3's Classes 2 (Light Goods Vehicle)  and 18 (Medium Goods Vehicle)  driving licence expired on 18 February 2020.

1^st incident

4.  Sunplus Contractors Limited (VC1)  had a construction site at Tung Chung Temporary Street Market, 6 Fu Tung Street, Tung Chung, Lantau Island (Location 1).

5.  About 8:00 a.m. on 7 February 2023, Mr. Wong (Project Manager of VC1)  found 100 pieces of stainless steel drain covers (Property 1; valued at $500,000)  and a CCTV camera (Property 2; valued at $2,000)  missing from Location 1.  The Police was alerted.

6.  CCTV footage of 6 February 2023 captured D1 (not masked)  pushing an orange trolley outside Location 1 at 2300 hours.  About 2320 hours, he was pushing an orange trolley which contained some rectangular silver heavy items passing outside HKFEW Wong Cho Bau Secondary School (Charge 1).  Between 2356 and 2358 hours, D1 walked towards Property 2 and destroyed it with a stick (Charge 2).

7.  CCTV footage also captured a medium goods vehicle WL145 (V1)  leaving Location 1 around 0044 hours on 7 February 2023.  In his video recorded interview ("VRI")  conducted on 5 March 2023, D3 admitted that he drove V1 to Location 1 at the request of a male.  He saw that male pushing a trolley which contained drain covers.  He believed that the male and D1 had stolen those drain covers from Location 1.  Yet, D3 drove that male and D1 together with Property 1 from Location 1 to Yuen Long and received $2,000 as his reward (Charges 1 and 3).

2^nd incident

8.  Wang Yu Engineering Company Limited (VC2)  had a storage site at Lot 2597 in DD4, Shek Lau Po, Tung Chung Road, Tung Chung, Lantau Island (Location 2).

9.  About 7:30 a.m. on 13 February 2023, Mr. Yu (Foreman of VC2)  found one roll of 500m water wire (Property 3; valued at $8,000)  and one roll of 400m copper wire (Property 4; valued at $60,000)  missing from Location 2.  The Police was alerted.

10.  In his VRI conducted on 5 March 2023, D3 admitted that a male had asked him to collect some goods from Tung Chung for $2,000.  He thus drove a light goods vehicle WL1970 (V2)  to Location 2.  D3 assisted two males by loading Properties 3 and 4 onto V2.  He then drove V2 from Location 2 to an unknown location and received $2,000.  When shown the relevant CCTV footage, D3 identified himself and V2. D3 admitted that he believed Properties 3 and 4 belonged to a company instead of the two males (Charges 4 and 5).

3^rd incident

11.  BYME Engineering (HK)  Limited (VC3)  had a construction site for the expansion project of North Lantau Hospital at Yu Tung Road, Tung Chung, Lantau Island (Location 3).  On 3 March 2023, 41 rolls of copper tape (Property 5; valued at $178,350)  were stored at Location 3.

12.  In the early hours on 4 March 2023, PC 15043 (PW3)  saw D1 to D3 stealing Property 5 from Location 3.  In particular, about 0245 hours, D2 threw a black long bag into the grass area outside Location 3 near Lamppost AC1504A ("the Entering Point").  About 0255 hours, D2 placed a ladder on the grass area outside the Entering Point.  About 0500 hours, D1 and D2 climbed over the external wall at the Entering Point using the ladder and entered Location 3. About 0520 hours, D1 and D2 threw Property 5 from the Entering Point out of Location 3.  About 0537 hours, D3 brought two rubbish bins to the pavement near the Entering Point.  D1 and D2 put Property 5 into the two rubbish bins.  About 0600 hours, D3 used a pallet truck and loaded a rubbish bin which contained some of Property 5 onto V1 and drove V1 away.  About 0614 hours, D2 pushed a pallet truck to the Entering Point and used it to transport the other rubbish bin which contained the remaining Property 5.  This is Charges 7 and 8.

13.  About 0616 hours, police officers intercepted D1 to D3 for enquiry.  DPC 13150 (PW4)  asked D1 for identity proof.  D1 claimed that he did not carry any identity proof with him (Charge 9).

14.  PW4 arrested D1 at 0635 hours on 4 March 2023.  In his VRI conducted on 4 March 2023, D1 claimed that he saw 2 rubbish bins containing some re-sellable metal and thought they were rubbish.  He therefore agreed with D2 to take them away and re-sell them for money.

15.  DPC 7444 arrested D2 at 0625 hours on 4 March 2023.  In his VRIs conducted on 4 and 5 March 2023, D2 claimed that he thought Property 5 was rubbish and planned to throw it away.  He and D1 then put Property 5 into the rubbish bins.  D2 intended to discard the rubbish bin which contained some of Property 5 at the hillside.

16.  DPC 14597 arrested D3 at 0630 hours on 4 March 2023.  Under caution, he claimed that D2 called him around 4:00 a.m. asking him to collect D1's and D2's stolen goods at Tung Chung.  In his VRI conducted on 4 March 2023, D3 stated that D2 called him that morning asking him to collect their stolen properties for $2,000.  D3 also admitted having driven V1 with two rubbish bins and a pallet truck to Location 3.  D3 assisted D1 and D2 by loading a rubbish bin containing some of Property 5 onto V1.

Mitigation

D1

17. He is 32 and has 6 conviction records, which included 1 "Conspiracy to rob" offence, 4 "Theft" offences and a number of other offences. His counsel Ms. Chu informed me that D1 is single but has a daughter (aged 3)  with his ex-girlfriend. He completed Form 3 and started to work. He was a delivery worker earning a meagre income. He resides with his mother, elder sister, younger brother and daughter. In mitigation, Ms. Chu submitted that D1 wanted to earn some quick money because his income was unstable and insufficient during the pandemic.

D2

18. He is 45 and has 14 conviction records, which included 8 theft-related offences, 1 "Attempted burglary" offence and several other offences. His counsel Mr. Lai informed me that D2 is separated with no children. He resides with his aged father and younger brother. From 2008 to his arrest, D2 worked at a recycling company earning $18,000 per month. In mitigation, Mr. Lai submitted that D2 has been remanded in jail custody since his arrest (over 12 months). He has reflected on his misdeeds and understands he has done wrong.

D3

19. He is 58 and has 5 conviction records, which included 1 "Theft" offence (dated 1982). His counsel Mr. Cheung informed me that D3 is separated with an adult son. Prior to his arrest, D3 was a casual worker earning about $8,000 per month. In mitigation, Mr. Cheung submitted that D3's only "Theft" conviction took place over 40 years ago. His last conviction was "Gambling in a gambling establishment" (dated 2020)  for which he was fined $700. Regarding the driving offences, Mr. Cheung submitted that D3's driving licence expired during the pandemic; he had difficulty renewing it.

Sentence

20. All 3 defendants should consider themselves lucky that they were not charged with "Burglary", an offence which has clear sentencing tariffs (domestic premises or otherwise). In all 3 incidents, the defendants acted in concert stealing large volume of materials from construction sites in the early hours of the day. They had brought with them transportation equipment and a get away vehicle. What they did was serious theft.

21. For Charges 1, 4 and 7, based on the value of the stolen goods and the modus operandi of each incident, I consider 2 years' imprisonment, 15 months' imprisonment and 18 months' imprisonment to be the respective appropriate starting points. I may adjust them according to the background of each defendant.

D1

22. He is a repeated offender of "Theft" offences. For Charges 1 and 7, I adopt 27 months' imprisonment and 21 months' imprisonment as the respective starting points. With the timely guilty pleas, the sentences are reduced to 18 months and 14 months respectively. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 18 months' imprisonment and 14 months' imprisonment respectively for these 2 charges.

23. For Charge 2, I adopt 6 months' imprisonment as the starting point. With the timely guilty plea, I sentence D1 to 4 months' imprisonment for this charge.

24. For Charge 9, I do not understand why D1 was charged under the Public Order Ordinance instead of the Immigration Ordinance[2], which only carries a maximum fine of $5,000. He did not deliberately refuse to produce his identity card; he simply did not have it with him. Charging D1 under the Public Order Ordinance seems to be out of proportion. I will fine him $500 for this charge, to be paid within 1 month.

25. I consider a global starting point of 33 months' imprisonment appropriate for Charges 1, 2 and 7. With the timely guilty pleas, the overall sentence becomes 22 months. To achieve this, I order the sentences for Charges 1 and 2 to run concurrently; 4 months in Charge 7 to run consecutive to Charges 1 and 2.

D2

26. He is a repeated offender of "Theft" offences. For Charge 7, I adopt 21 months' imprisonment as the starting point. With the timely guilty plea, the sentence is reduced to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D2 to 14 months' imprisonment for this charge.

D3

27. I will not treat him as a repeated offender of "Theft" offences. For Charges 1, 4 and 7, I adopt 2 years' imprisonment, 15 months' imprisonment and 18 months' imprisonment as the respective starting points. With the timely guilty pleas, the sentences are reduced to 16 months, 10 months and 12 months respectively. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D3 to 16 months' imprisonment, 10 months' imprisonment and 12 months' imprisonment respectively for these 3 charges.

28. Regarding Charges 3, 5 and 8, for a 1^st conviction of this offence, the maximum penalty is a fine of $5,000 and imprisonment for 3 months. Fine is not an option in this case. I adopt a starting point of 6 weeks' imprisonment for each charge. With the timely guilty plea, the sentence is reduced to 4 weeks. I sentence D3 to 4 weeks' imprisonment each for these 3 charges.

29. Although the driving offences arose out of the theft offences, I consider them separate and distinct from the theft offences for the purpose of sentencing. In my view, a global starting point of 39 months' imprisonment is appropriate for Charges 1, 3, 4, 5, 7 and 8. With the timely guilty pleas, the overall sentence becomes 26 months. I note that the evidence against D3 in both the 1^st and 2^nd incidents came solely from his admissions, I would grant him a further discount of 1 month[3], reducing the overall sentence to 25 months. To achieve this, I order the sentences to run in the following manner :-

(i)  Charges 1 and 3 concurrent;

(ii)  Charges 4 and 5 concurrent, but 4 months consecutive to Charges 1 and 3; and

(iii)  Charges 7 and 8 concurrent, but 5 months consecutive to Charges 1, 3, 4 and 5.

30. There is no evidence suggesting that D3's driving was substandard. He probably was too lazy to renew his driving licence and tried to blame it on the pandemic. I do not consider it necessary to make a disqualification order against him[4].