HKSAR v. LUK HAU CHEUNG AND ANOTHER

DCCC 1099/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1099 OF 2015

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to three offences of blackmail, which are Charges 1, 3 and 6 on this indictment.

2.  The 2nd defendant has pleaded guilty to three offences of theft, which are Charges 2, 5 and 8, and one offence in respect of Charge 11 of possession of an identity card relating to another person.

3.  The stealing and blackmail offences arise out of the stealing of what would appear to be medium goods vehicles and then attempts to sell them back, or get money from their owners asking for the return of the vehicle.

4.  All the vehicles have been recovered, and the defendants have admitted, both in records of interview and also before the court, their involvement.

5.  As far as the details of those offences are concerned, on the 1st charge of blackmail, that relates to a medium goods vehicle that was stolen on or around 4 August 2015.  It was recovered on 12 August 2015, and had been bought in 2002 for $480,000.  Whilst the vehicle was missing, on 6 August 2015, a person employed by the operator of the vehicle received a phone call from an unknown male, who was in fact the 1st defendant, who said that if he wanted that vehicle back, he would have to pay $50,000 for it.  In fact, although there were some further calls, no payment was ever made, and, as I have said already, on 12 August the vehicle was recovered.

6.  In relation to the 2nd charge, the first offence of theft of the vehicle which relates to the 2nd defendant, that occurred on 9 September 2015, relating to an Isuzu light goods vehicle which had been purchased in 2014 for $170,000.  On 10 September it was discovered that the vehicle had gone missing, and on the same day the 1st defendant made a call asking for $50,000 to return the vehicle.  No money was ever paid again, and that relates to the blackmail offence of the 3rd charge.

7.  The next theft, which is the 5th charge on the indictment, relates to another vehicle which was parked on 10 September 2015.  On 11 September it was discovered that vehicle was missing, and that was eventually recovered on 16 September.  This vehicle was purchased for $200,000 in 2013.  On 13 September a phone again was received from the 1st defendant demanding $50,000 for the vehicle or it would be sold.  That is the 6th charge.

8.  The final offence occurred on 12 September.  Another Isuzu goods vehicle, this time valued at $500,000 in December 2014, was removed, and this is the vehicle involved in the 8th charge.  That was recovered on 16 September 2015.

9.  The 1st defendant was arrested on 16 September 2015, and made written and verbal admissions, and he admitted he was the person who telephoned the persons in relation to the demands set out in the 1st, 3rd and 6th charges and agreed he had demanded $50,000 from each of the persons to guarantee the return of the vehicles.  If the money had been paid over, he was to receive a reward of $5,000.

10.  The 2nd defendant was also interviewed.  He admitted he had stolen the vehicles set out in the 2nd, 5th and 8th charges.  He would contact a person called “Ah Wah” to receive them. If they were useful and valuable, he would receive a reward from “Ah Wah”.  Otherwise he would just abandon the vehicles.  He also made admissions in respect of the 11th charge.  He said he had picked up an ID card about half a year earlier.  He could not remember when and where he picked it up.

11.  As far as the 2nd defendant is concerned, the three vehicles he admits being involved in the thefts of were valued at $170,000, $200,000 and $500,000.  Those are the values when new, of course.

12.  For the 1st defendant, the values are different.  For the 1st charge, the value of the vehicle was $480,000 in 2002; for the 3rd charge, $170,000 in 2014; and then for the 6th charge, $200,000 in 2013.

13.  The defendants’ antecedents have been admitted as follows.  The 1st defendant is aged 50.  He lives with his cohabitant, a Miss Yu, and they have a daughter aged 2.  He has a number of previous convictions dating back to 1985.  There are a total of 19 recorded occasions when he has been in court for a number of offences involving theft, offences involving dangerous drugs, and driving.  He has been to both drug addiction treatment centre and prison in the past.  The defendant has a relationship with his cohabitant and his daughter, and this defendant’s mother assists him and the cohabitant in bearing the responsibility of the child.  The defendant also has some psychiatric problems.  He has got a longstanding substance abuse problem and suffers from insomnia, and appears to have a dependency on sleeping pills.  He is currently described as stable, and no in-patient treatment is required.

14.  As far as the 2nd defendant is concerned, he is aged 39.  He has a cohabitant and is a divorced man.  He also has a record of previous convictions dating back to 1997 relating to possession and use of dangerous drugs, some offences of violence, and also relating to taking a conveyance and dangerous driving.  The background report describes him as remorseful and wants to live a lawful life with his cohabitant once he is discharged from prison.  He has the support of his family and his cohabitant.

15.  As far as these offences are concerned, I have heard in mitigation from both defendants they both voluntarily admitted the offences.  It is submitted there is no general tariff for either the blackmail or the theft of these vehicles, but certainly an immediate sentence of imprisonment is the normal outcome, and that is what the defendants expect.

16.  The vehicles themselves were not high-value luxury vehicles.  There is no international element.  They were, to put it crudely, ransoming medium goods vehicles.  The values that have been placed on the vehicles in the facts are, of course, agreed as being their purchase values, but they would now have a second‑hand value which would be much less. All the vehicles have been recovered.  No money was in fact paid for their return.  Both defendants have co‑operated in the investigation of the offences.

17.  It can be seen that the offences, aside from the 11th charge, really are part and parcel of the same kind of operation, which involves the stealing of the vehicle and then seeing if any money could be obtained for its return.  It is clearly a planned operation.  There is some sophistication in the way that the vehicles must have been stolen and stored, and the blackmail and the thefts form part of a continuous process of criminality.

18.  I take all these factors into account when determining what the appropriate starting point for sentence in respect of all these charges is.  As I have said, I considered it to be effectively one form of operation, so I consider the sentences for the blackmail and theft should be alike.  As I have said, there is no tariff for these offences, but offences involving the theft of vehicles can range up to a starting point of 3 years’ imprisonment where there is no overseas element or luxury vehicles are not involved.

19.  Having regard to the degree of sophistication and the other elements of the offences, I consider that in respect of both the blackmail offences and the theft offences that the 1st and 2nd defendant have pleaded guilty to, on each of those offences, a starting point of 30 months’ imprisonment should be adopted.

20.  After a reduction for the defendants’ pleas of guilty to those charges, that would lead to a sentence of 20 months’ imprisonment in respect of those charges.

21.  The 2nd defendant also faces one charge in Charge 11 of possession of an identity card relating to another person.  I take a starting point of 6 months’ imprisonment for that, and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

22.  In respect of each of the defendants, the offences are, of course, discrete; they were committed separately and independently, and so can be served consecutively.

23.  I have to consider that the offences themselves were not committed over a lengthy period of time, and also I must consider the effect of what the appropriate overall totality sentence should be for these offences.

24.  What I shall achieve in respect of each defendant is an overall sentence of 26 months’ imprisonment.  I will achieve that as follows:

the 1st defendant, on the 1st charge, is sentenced to 20 months’ imprisonment;

on the 3rd charge, to 20 months’ imprisonment; and

on the 6th charge, to 20 months’ imprisonment.

I will order that the 1st and 3rd charges be served concurrently, and 6 months of the 6th charge be served consecutively to Charges 1 and 3 and the balance concurrently.

25.  As far as the 2nd defendant is concerned, he is sentenced as follows:

on Charge 2, 20 months’ imprisonment;

Charge 5, 20 months’ imprisonment;

Charge 8, 20 months’ imprisonment; and

Charge 11, 4 months’ imprisonment.

I am going to order that Charges 2 and 5 be served concurrently to each other; Charges 8 and 11 be served concurrently to each other; but 6 months of those charges be served consecutively to Charges 2 and 5, again giving an overall sentence of 26 months’ imprisonment for those series of offences.