HKSAR v. LEE HO KONG

DCCC 718/2023

[2024] HKDC 667

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 718 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to three charges, two of theft and one of possession of an imitation firearm at the time of committing an offence. The offences took part in the Wan Tau Tong Estate Carpark in Tai Po.

2.  What we know from the facts is that round about 4:28 to 4:30 in the what would have been the morning of 22 February 2023, defendant, a person described as a “wanted person” was seen shining a torch to look into vehicles parked inside the multi-storey carpark and they were also observed acting in relation to the vehicles parked there which appeared to show them shining a torch and also breaking window after one of them assumed a crouching position. Both these men, the defendant and the wanted person, fled when the police arrived but the defendant was later intercepted and on searching was found to be in possession of an imitation firearm inside his cross-body bag.

3.  When the defendant was arrested he immediately said he was meeting with a person, he gave a name, where they would smash cars and steal from them and the defendant would act as the lookout. He admitted bringing an airgun in order to break car windows but claimed that he had not used it and that is supported by the evidence of the witness who appeared to describe the other person, the wanted person, as using what appeared to be what may well have been a firearm to break the window.

4.  The police then investigated and found the driver’s seat windows of one of the vehicles, that is V1, and V2 were smashed and the interior of the two cars showed signs of ransacking. The owner of V1 confirmed a pair of sunglasses was stolen from it. The owner of V2 said that an Apple watch, an Octopus card and $200 was stolen from Vehicle 2.

5.  The police recovered a pair of sunglasses, the Apple watch and the Octopus card from the body-bag dropped by the defendant during his struggle with a witness. Police also found in the defendant’s bag, compressed gas, magazines for the pistol, screwdriver set, a saw and a hex key. Defendant admitted the cross-body bag and the screwdriver belonged to him. The airgun or the air pistol that was found was designed to discharge plastic balls of 6 millimetre calibre, unlikely to be able to attain muzzle energy of over two joules, I believe they are called BBs or the particular plastic balls are. The defendant admits the theft of the items set out in the charges and also the possession of an airgun at the time when those offences of theft were being committed.

6.  It can be seen that all the property, save the $200, has been recovered and the defendant has consented to the $200, I have been told, as being taken from his prisoner property so it would appear that there is full restitution of the items taken during the offence.

7.  I will deal with the defendant’s personal background now. He is aged 44, educated according to his mitigation up to Form 5 level. He had been unemployed and was living with his girlfriend who is present in court today. He has been separated from his wife and has some children by that relationship.

8.  As far as his previous record confirms, the defendant has a total of 34 previous convictions, 19 of those involve offences of dishonesty. I am also informed that the defendant committed the present offences whilst on police bail which is in itself an aggravating factor. The defendant is, I am told, remorseful and pleaded guilty at the first instance and has indicated his responsibility in these offences and indicated his desire to plead guilty to these offences from the earliest possible opportunity. Furthermore, the desire to make recompense also shows the defendant has remorse for these offences.

9.  Dealing with the offences the defendant has been convicted of, the theft offences are of the form of theft from a vehicle. There is no actual guideline for this particular form of theft as the ways in which the offence can be committed are very varied. However, starting points of between 12 months to 2 years are normal depending on the severity of the particular offence.

10.  As far as the possession of an imitation firearm at the time of committing an offence, sentences can range widely because again the circumstances in which the offences are committed can be very varied. I have been referred to a number of cases where the sentences have ranged between one to two years’ imprisonment for starting points. I will note in relation to the theft of the imitation firearm that it is a pellet gun and was not used at the time of the offence and in any event if it had been used in the offence, as we can see in relation to the wanted person, it was simply used to break a window and not used to threaten an individual and in the offence in the cases I have been referred to, the gravamen of the offence or the severity of the offence usually relates from the fact that the firearm is used as a simulacrum of a real gun to threaten people. It is not being used in that way in this case.

11.  However, when determining the starting point for sentence, I have to bear in mind two additional factors here. Firstly, defendant has a poor record for cases of dishonesty and theft and is a persistent offender and that is an aggravating factor. And secondly, another aggravating factor related to the defendant’s poor record is the fact that the offences were committed whilst he was on bail for other offences. That is another aggravating factor and shows the failure in relation to previous sentencing of the defendant for him to be deterred by previous sentencing and I bear in mind both those factors when determining the starting points for sentence.

12.  I shall also bear in mind the fact that full restitution has been made in this offence and I will take a starting point for sentence as follows.

13.  In relation to theft from a vehicle, they are the same offence committed twice. I consider an overall starting point, before consideration of any aggravating factors for these offences would be one of 18 months’ imprisonment. There are two aggravating factors which I have already outlined. I will take an enhancement for sentence by 3 months for each factor leading to a starting point for sentence on the two theft offences of 24 months’ imprisonment. Defendant is entitled to a full one third discount on that, so on charges 1 and 2 the sentence of imprisonment would be one of 16 months’ imprisonment.

14.  As far as the possession of firearms is concerned, I do consider still that the starting point for sentence at 12 months of his imprisonment is appropriate. Again, that is aggravated by the two aggravating factors which leads to a starting point of 18 months’ imprisonment which is reduced to one of 12 months’ imprisonment for the defendant’s pleas of guilty are taken into consideration.

15.  It is common ground here that although the offences were all committed at the same time, the possession of the imitation firearm is normally considered by the courts to be served consecutively because it is an aggravating factor in commission of the offences.

16.  I shall take the following approach. I shall order the sentences on charges 1 and 2 to be served concurrently to each other and as far as the 3^rd charge is concerned, I am going to order that 5 months of the 3^rd charge be served consecutively to charges 1 and 2, leading to an overall total sum of 21 months’ imprisonment and I shall also note that $200 will be deducted from the prisoner’s property of the defendant.