HKSAR v. CHAN YIN KWAI

DCCC 301/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 301 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of 13 charges. The charges can be grouped into incidents. The first incident involves charges 1 and 2. The defendant falsely pretended to be a Police officer and committed an offence of theft respectively. On 1 January 2016, the victim of charge 2 was an 11 year old Primary 6 schoolboy. He was on his way home in Tung Choi Street, Mongkok, when he was approached by the defendant. The defendant claimed to be a Police officer and flashed a card at the victim which the victim assumed was a warrant card. The defendant told the victim he was suspected of a theft offence. He asked the victim to follow him to the 2nd Floor of the Fa Yuen Street cooked food centre. The victim was told to hand over his mobile phone and money which was $180. After the victim handed these items over, the defendant told the victim to leave the food centre by himself and the defendant then fled.

2.  The second incident involved charges 3 and 4, the charge of falsely pretending to be a Police officer and an offence of theft respectively.  On the next day, 2 January 2016, the victim of charge 4 who was a 10 year old Primary 5 schoolboy was walking alone in Sham Shui Po.  He was approached by the defendant who claimed himself to be a Police officer and flashed a card which the victim assumed was a Police warrant card.  The defendant told the victim he needed to search him and led him away.  He then took the victim's mobile phone and fled. 

3.  The third incident involves charge 5, a theft charge.  On 4 January 2016 at about 10 am, an 80 year old female victim was returning home alone.  The defendant was obviously following her and followed her into her building and the lift.  When she got out of the lift on her floor the defendant followed her.  In the corridor, the defendant tapped her on the shoulder and when she turned around the defendant pulled her necklace off her neck and ran away.  The facts are he then sold her gold necklace in a jewellery shop in Mongkok.

4.  The fourth incident involves charges 6, 7 and 8, charges of pretending to be a Police officer, a theft charge and a common assault charge respectively.  Charges 7 and 8 involved the same victim.  On 7 January 2016 at about lunchtime, a 14 year old Form 2 student was walking alone in Wong Tai Sin.  The defendant approached him and pretended to be a Police officer.  He flashed a card at this victim.  He told this victim that he was suspected of a theft case and demanded a body search.  He grabbed this victim's shirt from behind and pulled him somewhere nearby.  Obviously the victim was frightened and surrendered his mobile phone to the defendant.  The defendant took this victim to an alley nearby and told him to squat down. After he squatted the victim then saw the defendant run away.  The victim followed the defendant and challenged him.  It was at this stage the defendant dropped his Construction Workers Registration card.  This victim picked it up which led ultimately to the defendant's arrest.  This victim continued to chase the defendant but for his bravery was punched twice in the stomach.  The defendant got away.

5.  The fifth incident relates to charge 9.  This was a robbery committed by the defendant on 12 January 2016.  The victim was a 14 year old schoolboy on his way home at about 5 pm.  The defendant followed him into his building and entered the same lift as the victim.  When this victim got out on his floor the defendant followed him.  In his corridor the defendant grabbed the victim and accused him of staring at him, pushed him against the wall, punched his face four to five times then pushed him onto the ground.  On the ground the victim was kicked five or six times.  The defendant told the victim to stay down and demanded all his property.  This victim did struggle but the defendant managed to take his mobile phone and fled.  As a result of the robbery this victim suffered abrasions on his mouth, a hand and fingers. 

6.  Charges 10, 11, 12 and 13 are four shoplifting thefts committed on the 17th and 18 January on four separate occasions in four separate supermarkets.  What was stolen involves boxes of chocolates, biscuits, basically items that can be resold easily for quick money. 

7.  The defendant's crime spree came to an end on 19 January 2016 when he was located by the Police from the details of the Construction Workers Registration card he dropped on 7 January 2016.  

8.  The defendant's best mitigation is his plea of guilty as well as his full cooperation with the Police.  Under caution he admitted all of the offences. 

9.  The defendant is not a man with a clear record. He has 16 previous convictions obtained in 11 court appearances.  Six relate to theft offences, two previous convictions for robbery, six relate to burglary offences and two relate to dangerous drugs.  The defendant's first criminal conviction was when he was 15 years old and the sentence was one of a Drug Addiction Treatment Centre which means he must have been a drug addict at 15. 

10.  I have heard in mitigation that the defendant is now 36 years old and was unemployed at the time of the offences.  He is not married but a divorcee with a long-term girlfriend and an 18 month old child, a daughter he needs to financially support. 

11.  I have had written mitigation which I mark now as MFI-1 as well as a letter from the defendant.  I have also had sight of photograph albums of the defendant in various supermarkets picking up items as well as stills from CCTV footage of the defendant following certain victims into buildings, lifts and fleeing after his crimes. 

12.  In MFI-1, written mitigation, I have been told that the defendant comes from a broken family.  His mother left him when he was only 2 years old.  His father was working as a hawker and worked long hours to feed the defendant and his other siblings.  Because of this, the defendant was left to his own devices at a very young age.  He had no discipline and no formal education.  He must have been completely out of control because he was the subject of a Care and Protection Order at the age of nine.  Obviously at a young age he became involved with drugs and triads which I have said led to his first conviction at the age of 15.  He was married in 2005 but his wife left him not long after.  There were no children from that marriage but as I have said, he now has an 18 month old daughter which comes with responsibilities. 

13.  I have been told that he has been unable when he is not in prison to find employment easily.  I am told the defendant is of the view that this is because of his poor criminal record, lack of education or particular skill as well as tattoos that are very obvious.  He was unemployed at the time of these offences in January this year and needed money for his daughter which led to the commission of these crimes.

14.  The defendant in his letter adds to mitigation I heard by saying that he misses his daughter very much and that his father has suffered a stroke.  The defendant is disappointed he is unable to help.  He states he wants to learn a trade and is remorseful.  If he is genuinely intends to learn a trade, he should make use of his time while serving this sentence to learn one.

15.  These offences are serious.  He has impersonated a Police officer to scare young victims.  He has targeted either the very young or in the case of charge 5 a very elderly victim.  The victims of the five incidents that involve charges 1 to 9 were all followed and targeted.  The young and the elderly require protection, they are vulnerable members of society and it is precisely because they are vulnerable the defendant took advantage of them. 

16.  As far as tariffs for these offences are concerned with a robbery charge the Court of Appeal has said on numerous occasions that up to a 4 year starting point would be appropriate when there is a robbery and no weapons are displayed.  For that tariff I have referred myself to HKSAR v Ting Chiu [2003] 3 HKLRD 378 and HKSAR v Lam Ka Hung 294 of 2003. 

17.  Where there are theft offences and the victims have been subject to a snatching of their property, in HKSAR v Yung Kam Tung CACC427/2012 the Court of Appeal has said a 12 month starting point is appropriate where it is a simple case of snatching and it was an opportunistic situation.  In the theft offences here they certainly were not opportunistic situations, here the victims were either very young or very old and followed as targets.  Four of the victims were frightened into submission by the defendant posing as a Police officer, a person in authority.  In my view that will attract a higher starting point than 12 months.  I also reminded myself that the maximum sentence I can impose for pretending to be a Police officer is one of 6 months' imprisonment.

18.  Defendant, please stand up.  I have considered the defendant's plea of guilty, the facts involved here, mitigation put forward and the authorities referred to by defence counsel and those I have also mentioned above. I find the following starting points appropriate:-

- For charge 1, a starting point of 6 months is appropriate.

- For charge 2, a starting point of 15 months.

- For charge 3, a starting point of 6 months.

- For charge 4, a starting point of 15 months.

- For charge 5 where an old lady was followed into the lift and subject to her necklace being snatched, I take a starting point of 18 months.

- For charge 6, I take a starting point of 6 months.

- For charge 7, a starting point of 15 months.

- Charge 8, a starting point of 6 months.

- For charge 9, the robbery charge, a starting point of 4 years.

- For charges 10, 11, 12 and 13, the shoplifting offences, I take the same starting point of 3 months' imprisonment.

19.  The defendant has pleaded guilty, he is entitled to a discount of one-third.  After that discount is applied the defendant is sentenced as follows:-

Charge 1 - The defendant is sentenced to 4 months' imprisonment;

Charge 2 - The defendant is sentenced to 10 months' imprisonment;

Charge 3 - The defendant is sentenced to 4 months' imprisonment;

Charge 4 - The defendant is sentenced to 10 months' imprisonment;

Charge 5 - The defendant is sentenced to 1 year imprisonment;

Charge 6 - The defendant is sentenced to 4 months' imprisonment;

Charge 7 - The defendant is sentenced to 10 months' imprisonment;

Charge 8 - The defendant is sentenced to 4 months' imprisonment;

Charge 9 - The defendant is sentenced to 2 years and 8 months' imprisonment;

Charge 10 - For each charge the defendant is sentenced to 11, 12 & 13 2 months' imprisonment.

20.  I have to consider the totality principle.  I also take into account the dates of these offences were all committed within a three week period.  As I have said, these offences can be divided into five serious incidents and then the four shoplifting charges.  Some must be served consecutively to reflect the criminality in the defendant's crime spree. Therefore:- 

- I order that 4 months of charge 2 be served consecutively to charge 9.

- I order that 4 months of charge 4 be served consecutively to charge 9.

- I order 4 months of charge 5 to be served consecutively to charge 9.

- I order 4 months of charge 7 to be served consecutively to charge 9.

21.  All other sentences and the balances of charges 2, 4, 5 and 7 will be served concurrently to charge 9.

22.  The total sentence is one of 2 years and 8 months plus 16 months, therefore a 4 year term of imprisonment.