HKSAR v. TSE KOON KIT

DCCC 903/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 903 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges. The first, handling stolen goods and the second, theft of a vehicle, both contrary to the Theft Ordinance, Cap 210.

2.  The facts of both charges are as follows.  The owner of a green light goods vehicle had parked the vehicle in Tsuen Wan at 6.30 pm on 10 March 2015.  Within 9 hours of that, the defendant drove it into a carpark in Yau Ma Tei. 

3.  When the vehicle was recovered, the police found a pair of number plates in the back, and the ignition had been damaged, obviously, when it was stolen.

4.  The defendant, drove this first vehicle into the Goldway Carpark at about 3 am.  He parked it and he and another male then stole a second vehicle (“Vehicle 2”), a Toyota Estima worth about $180,000.  This vehicle had been parked by its owner at about 7 pm that same evening.  That owner had left the key to the vehicle with the staff of that carpark. 

5.  The defendant and another male approached the staff at the kiosk of that carpark after dumping the first vehicle.  There was a charade of asking the staff for keys of vehicles without producing carpark tickets.  Clearly, that staff member got suspicious.  She picked up the telephone to call the carpark management.  When she did this, the defendant walked into her kiosk, took her phone away, as well as the keys to the second vehicle.  He drove away in the second vehicle with the other male.  That member of staff then called the police.  This was at about 3.30 am.

6.  The next evening, on 12 March, the second vehicle ended up parked at the Metropark Hotel in Kowloon City.  The driver told the valet of that hotel that he was staying at the hotel, so the vehicle was parked inside.  The next day, 13 March, a team of police officers arrived at the hotel.  At about 1.35 pm, police officers saw the defendant come out from the hotel and stopped him.  He was then arrested.

7.  The second vehicle, when recovered, had fake licence plates on it.  The owner had valuables of about $12,000 stolen from the vehicle. 

8.  Under caution, the defendant told the police that he had stolen the second vehicle from the carpark.  Someone else had told him to snatch the keys from the kiosk of the carpark, and on 12 March, somebody had told him to park the vehicle at the hotel. 

9.  The police investigation results included the DNA of the defendant found on the gearstick and the steering wheel of the second vehicle.

10.  The defendant’s best mitigation today is his plea of guilty.  He is 40 years old, single, and lives with his family.  He is a transportation worker earning $8,000 to $10,000 a month. 

11.  The defendant has a poor criminal record.  He has a total of 23 convictions arising from 22 court appearances, of which five were in the District Court and one in the High Court.  14 of these 23 convictions relate to offences of dishonesty.  More specifically, four relate to either stealing vehicles or taking conveyances without authority. 

12.  This is the fifth time the defendant has stolen a vehicle.  The last time the defendant appeared in the District Court, on 18 July 2013.  In DCCC 393/2013, my learned brother took a 3 year 3 month starting point for theft of a vehicle.  He added 6 months to that starting point for the defendant’s appalling record and repeat offending.  The defendant was released from that sentence on 31 October 2014.  Within five months, the defendant was stealing vehicles again. 

13.  In mitigation, the defendant says he was paid to drive away the first vehicle, and then steal the second vehicle.  It was said he was told to park the second vehicle in Mong Kok and give the key to others. He was then asked a day or so later to go to the Metropark Hotel to drive away the second vehicle, and it was there he was arrested. 

14.  It was stressed there is no evidence the defendant was a mastermind, stole the owner of the second vehicle’s property, nor had any knowledge of fake number plates. 

15.  Everything that can be said had been said on the defendant’s behalf.   

16.  The defence counsel has produced two authorities, two cases for me to consider.  A District Court case, HKSAR v Sung Ching Wing DCCC 144/2010, as well as HKSAR v Ho Wing Yin CACC 50/2009.  However, the defence counsel quite rightly says despite these cases, there are no tariffs that exist for theft of vehicles or handling stolen goods.  This is because the facts of each case can vary significantly.  It has been said a starting point of between 3 to 5 years can be considered appropriate for theft of a vehicle.  It all depends on the facts of the case and the value of the vehicle. 

17.  The prosecution have submitted an authority HKSAR v Yu Shui Kin & Ors CACC 222/2009, where a starting point of 3 years for theft of a vehicle was upheld. 

18.  In this case, the defendant is a repeat offender and a recidivist.  This is the fifth time, as I have said, he has been involved with stolen vehicles and in this case, two vehicles in one night.  The defendant must have been aware that this aggravating factor was relevant when he decided to steal vehicles again only five months after he had served his previous sentence, and that was the sentence that had been increased for his repeated similar offences.  Clearly, it was no deterrent to the defendant.   

19.  These are serious offences, and deterrent sentences must be considered.  A persistent offender can expect the starting point to be higher than it otherwise would be.  A handling stolen goods offence attracts a higher maximum penalty than a theft offence.  It is certainly not going to be a lesser starting point than a theft of a vehicle charge.

20.  Defendant, please stand up.  After considering the facts of the case, the value of the vehicles, the damage and loss suffered by vehicle owners, I will take a starting point of 3 years and 6 months for both offences.  However, I find an aggravating factor exists for the defendant’s repeat offending, and I will increase that starting point by 6 months.  Therefore the starting point is one of 4 years’ imprisonment.  The defendant is entitled to a discount of one-third for his plead today.  After that discount is applied, the sentence each charged would be 2 years and 8 months.  I have to consider the totality principle here.  There are two vehicles and two victims, but both stolen on the same night.  I would order that 4 months of Charge 2 be served consecutively to Charge 1 and the balance concurrently. 

21.  Therefore the total sentence for Charges 1 and 2 is one of 3 years’ imprisonment.