DCCC500/2011 HKSAR v. YUNG WAI CHUNG AND ANOTHER - LawHero
DCCC500/2011
區域法院（刑事）H H Judge Anthea Pang28/6/2011
DCCC500/2011
A A
B DCCC500/2011 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 500 OF 2011 D
E ------------------------------------------ E
F HKSAR F
G v. G
H Yung Wai-chung (D1) H
Yip Kwan-wah (D2)
I I
-----------------------------------------
J J
Before: H H Judge Anthea Pang
K Date: 29 June 2011 at 4.14 pm K
Present: Mr Winston Chan, SPP of the Department of Justice, for HKSAR
L
Mr Lai Kwok Kwong, of Messrs Terry Yeung & Lai, assigned by L
the Director of Legal Aid, for the 1st and 2nd Defendants
Offence: (1), (2), (4) & (6) Theft (盜竊罪)
M M
(3) & (5) Falsely pretending to be a public officer (假冒公職人員)
N
(7) Claiming to be a member of a triad society (聲稱是三合會社團 N
的成員)
O O
P ------------------------------- P
Q Reasons for Sentence Q
R ------------------------------- R
S S
T T
U U
V 1 DCCC500/2011/Sentence V
A A
The Charges
B B
1. Both Defendants pleaded guilty to two charges of “theft”, contrary to
C C
section 9 of the Theft Ordinance, Cap. 210, laid against them jointly (1 st
D and 6th charges). D
E E
2. The 2nd Defendant also pleaded guilty to 2 other charges of “theft” laid
F F
against him alone (2nd and 4th charges). In addition, the 2nd Defendant
G pleaded guilty to two charges of “falsely pretending to be a public G
officer”, contrary to section 22(1) of the Summary Offences Ordinance,
H H
Cap. 228 (3rd and 5th charges), and one charge of “claiming to be a
I I
member of a triad society”, contrary to section 20(2) of the Societies
J Ordinance, Cap. 151 (7th charge). J
K K
The Facts Admitted
L L
3. The facts admitted by the Defendants were these : in each of the theft
M M
cases, either the two Defendants together, or the 2nd Defendant with
N another male, approached students who were teenagers. Under the N
pretext that they were conducting some sort of investigation, the
O O
Defendants would tell the students to surrender their mobile phones.
P P
Q 4. On some of those occasions, the 2nd Defendant would claim himself to be Q
a police officer or a triad member. These formed the basis of the other
R R
charges.
S S
T T
U U
V 2 DCCC500/2011/Sentence V
A A
5. Firstly, in the afternoon of 19 January 2011, the two Defendants
B B
approached 5 students in Wong Tai Sin and told them that they were
C looking for those who had assaulted their followers. One of the students C
was then asked to collect the mobile phones from the others for call
D D
record checks. Out of fear, the student complied and, while carrying the
E E
mobile phones of his fellow schoolmates, he boarded a taxi with the
F Defendants. On arrival at Tung Tau Estate, the student was asked to F
surrender all the 5 mobile phones, valued at HK$9,079. The Defendants
G G
then left. This is the subject matter of the 1st charge.
H H
I 6. In the evening of 9 February 2011, the 2nd Defendant, together with I
another male, employed the same modus operandi and approached a
J J
group of 3 students outside a park in Tseung Kwan O. This time, the 2nd
K Defendant claimed to them that he and the other male were police K
L
officers. After the mobile phones had been collected, one of the students L
was asked to travel to Po Lam Road North with them by taxi. Upon
M M
arrival, the student was asked to surrender the mobile phones, including
N his own, which were valued at HK$6,700. The 2nd Defendant and the N
male then left. These are the subject matters of the 2nd and 3rd charges.
O O
P P
7. On 14 February 2011, the 2nd Defendant and another male approached
Q two students in a park in Wong Tai Sin. A similar modus operandi was Q
used and the students were asked to surrender their mobile phones with
R R
a total value of HK$2,000. Before he left, the 2nd Defendant claimed that
S S
he was a police officer attached to Wong Tai Sin District. These are the
T subject matters of the 4th and 5th charges. T
U U
V 3 DCCC500/2011/Sentence V
A A
8. On 19 February 2011, the two Defendants approached two students in
B B
Kwun Tong. The same modus operandi was used. The 2nd Defendant
C further claimed that he was a member of “Tsim Sha Tsui Lo Sun” and C
alleged that someone had stolen the mobile phone of his follower. He
D D
then asked for the students’ mobile phones for checking. This time, one
E E
mobile phone which was valued at HK$4,700 was taken away. These are
F the subject matters of the 6th and 7th charges. F
G G
Mitigation – the 1st Defendant
H H
9. The 1st Defendant is aged 24 and is single. He was born in the Mainland
I I
and came to settle in Hong Kong in 1988. His parents have divorced and
J he lived with his mother. The 1st Defendant was educated up to Form 2 J
level. Prior to his arrest, he had worked as a casual worker in a mahjong
K K
school, earning about HK$10,000 per month.
L L
M 10. In mitigation, it was said that the 1st Defendant was a gambler and had M
owed a heavy debt. Being hard pressed for the repayment of the debt, he
N N
then committed the present offences. The 1st Defendant was said to be
O O
remorseful now.
P P
11. Despite his relatively young age, the 1st Defendant has been before the
Q Q
court on 5 previous occasions with 23 convictions. 21 of those were theft
R or robbery related offences. R
S S
T T
U U
V 4 DCCC500/2011/Sentence V
A A
Mitigation – the 2nd Defendant
B B
12. The 2nd Defendant is now aged 24 and is single. He lived with his
C C
mother and younger brother. His mother was said to have been suffering
D from cervical cancer and therefore required money for the operation. In D
E order to assist his mother, the 2nd Defendant had two jobs during the E
day and night but he eventually lost both. It was said that, as a result, he
F F
then committed the present offences in order to earn some quick money.
G G
13. Again, despite the 2nd Defendant’s relatively young age, he has been
H H
before the court on 5 previous occasions with 33 convictions. 23 of those
I I
were theft or robbery related offences.
J J
Sentencing Considerations
K K
L 14. There are no tariffs laid down for any of the offences committed by the L
Defendants in the present case.
M M
N 15. Having considered the facts, I regard the following as aggravating factors N
for the theft charges :
O O
P (1) The offences were acts of joint enterprise and were clearly P
premeditated;
Q Q
R (2) The offences were committed by two adult males preying on young R
students who were generally less suspicious and less mature;
S S
T T
U U
V 5 DCCC500/2011/Sentence V
A A
(3) On each of the occasions, the Defendants made utterances to the
B B
students so as to make them follow their instructions. As a result,
C the students surrendered their mobile phones either out of fear or C
because they were misled;
D D
E (4) On each of the occasions, one of the students was taken away from E
his group and was asked to follow the Defendants. No doubt, that
F F
student must have had a lot of stress and fear when travelling with
G G
such strangers during the journey; and
H H
(5) The Defendants repeatedly committed the offences over a short
I I
period of time.
J J
16. Further, it is clear from their criminal records that these two Defendants
K K
were co-accused in the earlier case DCCC 212/2007 in respect of which
L they were sentenced for various “theft”, “robbery”, “attempted theft” L
and “claiming to be a member of a triad society” charges. The
M M
prosecution has provided the court with the brief facts in relation to that
N N
case and it was revealed that a modus operandi similar to the one
O employed here was used in those cases. O
P P
17. No doubt, a defendant would not and should not be punished for his
Q Q
previous convictions. However, it is clear that the previous sentences
R imposed did not have sufficient deterrent effect to stop these two R
Defendants from committing the offences in the present case and this is a
S S
matter which I should take into account when considering the
T appropriate sentence in this case. T
U U
V 6 DCCC500/2011/Sentence V
A A
18. Concerning the “falsely pretending to be a public officer” and “claiming
B B
to be a member of a triad society” charges, the 2nd Defendant committed
C these offences in order to get the students’ mobile phones. Considering C
the circumstances, I have no doubt that when these claims were made,
D D
the students were put under pressure and would more easily succumb to
E E
the 2nd Defendant’s demands.
F F
G
The Starting Points Adopted G
H 19. In view of the facts of this case, the aggravating factors identified above, H
and that the Defendants have not been deterred by the sentences
I I
previously imposed, I consider a starting point of 18 months to be
J appropriate for each of the theft charges. J
K K
20. As regards the charges of “falsely pretending to be a public officer”, the
L L
statutory maximum is a term of 6 months’ imprisonment. On the facts of
M this case, I consider a starting point of 3 months to be appropriate. M
N N
21. Insofar as the charge relating to the triad member claim is concerned, I
O O
would adopt a starting point of 9 months. The claim was made to the
P students under broad daylight in an open area by the 2nd Defendant who P
was a complete stranger to them. As I have mentioned above, it was clear
Q Q
that the claim was made in order to threaten the students to yield to the
R 2nd Defendant’s demand so that the students would part with their R
S properties. I regard these as aggravating factors. S
T T
U U
V 7 DCCC500/2011/Sentence V
A A
The Sentence Imposed
B B
22. Having considered all that was said on behalf of both Defendants, I do
C C
not see any strong mitigating factors other than their pleas. For that, each
D of them will be given a 1/3 reduction. D
E E
23. In other words, the 1st and the 2nd Defendants will be sentenced to a
F F
term of 12 months each for charges (1) and (6). In addition, the 2nd
G Defendant will be sentenced to a term of 12 months each for charges (2) G
and (4); 2 months each for charges (3) and (5); and 6 months for charge (7).
H H
I I
The Totality Principle
J J
24. Having considered the totality principle, I make the following orders :
K K
L The 1st Defendant L
M (1) 7 months of the 12-month term for charge (6) are to run M
N
consecutively to the sentence imposed for charge (1), making a total N
of 19 months’ imprisonment.
O O
P The 2nd Defendant P
Q Q
(1) 6 months of the 12-month term for charge (2) are to run
R consecutively to the sentence imposed for charge (1); R
S S
(2) 1 month of the 2-month term for charge (3) is to run consecutively
T to the sentences imposed for charges (1) and (2); T
U U
V 8 DCCC500/2011/Sentence V
A A
(3) 6 months of the 12-month term for charge (4) are to run
B B
consecutively to the sentences imposed for charges (1) – (3);
C C
(4) 1 month of the 2-month term for charge (5) is to run consecutively
D D
to the sentences imposed for charges (1) – (4);
E E
(5) 6 months of the 12-month term for charge (6) are to run
F F
consecutively to the sentences imposed for charges (1) – (5);
G G
(6) 3 months of the 6-month term for charge (7) are to run
H H
consecutively to the sentences imposed for charges (1) – (6), making
I a total of 35 months for all 7 charges. I
J J
K K
L L
M (Anthea Pang) M
District Judge
N N
O O
P P
Q Q
R R
S S
T T
U U
V 9 DCCC500/2011/Sentence V
A A
B DCCC500/2011 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 500 OF 2011 D
E ------------------------------------------ E
F HKSAR F
G v. G
H Yung Wai-chung (D1) H
Yip Kwan-wah (D2)
I I
-----------------------------------------
J J
Before: H H Judge Anthea Pang
K Date: 29 June 2011 at 4.14 pm K
Present: Mr Winston Chan, SPP of the Department of Justice, for HKSAR
L
Mr Lai Kwok Kwong, of Messrs Terry Yeung & Lai, assigned by L
the Director of Legal Aid, for the 1st and 2nd Defendants
Offence: (1), (2), (4) & (6) Theft (盜竊罪)
M M
(3) & (5) Falsely pretending to be a public officer (假冒公職人員)
N
(7) Claiming to be a member of a triad society (聲稱是三合會社團 N
的成員)
O O
P ------------------------------- P
Q Reasons for Sentence Q
R ------------------------------- R
S S
T T
U U
V 1 DCCC500/2011/Sentence V
A A
The Charges
B B
1. Both Defendants pleaded guilty to two charges of “theft”, contrary to
C C
section 9 of the Theft Ordinance, Cap. 210, laid against them jointly (1 st
D and 6th charges). D
E E
2. The 2nd Defendant also pleaded guilty to 2 other charges of “theft” laid
F F
against him alone (2nd and 4th charges). In addition, the 2nd Defendant
G pleaded guilty to two charges of “falsely pretending to be a public G
officer”, contrary to section 22(1) of the Summary Offences Ordinance,
H H
Cap. 228 (3rd and 5th charges), and one charge of “claiming to be a
I I
member of a triad society”, contrary to section 20(2) of the Societies
J Ordinance, Cap. 151 (7th charge). J
K K
The Facts Admitted
L L
3. The facts admitted by the Defendants were these : in each of the theft
M M
cases, either the two Defendants together, or the 2nd Defendant with
N another male, approached students who were teenagers. Under the N
pretext that they were conducting some sort of investigation, the
O O
Defendants would tell the students to surrender their mobile phones.
P P
Q 4. On some of those occasions, the 2nd Defendant would claim himself to be Q
a police officer or a triad member. These formed the basis of the other
R R
charges.
S S
T T
U U
V 2 DCCC500/2011/Sentence V
A A
5. Firstly, in the afternoon of 19 January 2011, the two Defendants
B B
approached 5 students in Wong Tai Sin and told them that they were
C looking for those who had assaulted their followers. One of the students C
was then asked to collect the mobile phones from the others for call
D D
record checks. Out of fear, the student complied and, while carrying the
E E
mobile phones of his fellow schoolmates, he boarded a taxi with the
F Defendants. On arrival at Tung Tau Estate, the student was asked to F
surrender all the 5 mobile phones, valued at HK$9,079. The Defendants
G G
then left. This is the subject matter of the 1st charge.
H H
I 6. In the evening of 9 February 2011, the 2nd Defendant, together with I
another male, employed the same modus operandi and approached a
J J
group of 3 students outside a park in Tseung Kwan O. This time, the 2nd
K Defendant claimed to them that he and the other male were police K
L
officers. After the mobile phones had been collected, one of the students L
was asked to travel to Po Lam Road North with them by taxi. Upon
M M
arrival, the student was asked to surrender the mobile phones, including
N his own, which were valued at HK$6,700. The 2nd Defendant and the N
male then left. These are the subject matters of the 2nd and 3rd charges.
O O
P P
7. On 14 February 2011, the 2nd Defendant and another male approached
Q two students in a park in Wong Tai Sin. A similar modus operandi was Q
used and the students were asked to surrender their mobile phones with
R R
a total value of HK$2,000. Before he left, the 2nd Defendant claimed that
S S
he was a police officer attached to Wong Tai Sin District. These are the
T subject matters of the 4th and 5th charges. T
U U
V 3 DCCC500/2011/Sentence V
A A
8. On 19 February 2011, the two Defendants approached two students in
B B
Kwun Tong. The same modus operandi was used. The 2nd Defendant
C further claimed that he was a member of “Tsim Sha Tsui Lo Sun” and C
alleged that someone had stolen the mobile phone of his follower. He
D D
then asked for the students’ mobile phones for checking. This time, one
E E
mobile phone which was valued at HK$4,700 was taken away. These are
F the subject matters of the 6th and 7th charges. F
G G
Mitigation – the 1st Defendant
H H
9. The 1st Defendant is aged 24 and is single. He was born in the Mainland
I I
and came to settle in Hong Kong in 1988. His parents have divorced and
J he lived with his mother. The 1st Defendant was educated up to Form 2 J
level. Prior to his arrest, he had worked as a casual worker in a mahjong
K K
school, earning about HK$10,000 per month.
L L
M 10. In mitigation, it was said that the 1st Defendant was a gambler and had M
owed a heavy debt. Being hard pressed for the repayment of the debt, he
N N
then committed the present offences. The 1st Defendant was said to be
O O
remorseful now.
P P
11. Despite his relatively young age, the 1st Defendant has been before the
Q Q
court on 5 previous occasions with 23 convictions. 21 of those were theft
R or robbery related offences. R
S S
T T
U U
V 4 DCCC500/2011/Sentence V
A A
Mitigation – the 2nd Defendant
B B
12. The 2nd Defendant is now aged 24 and is single. He lived with his
C C
mother and younger brother. His mother was said to have been suffering
D from cervical cancer and therefore required money for the operation. In D
E order to assist his mother, the 2nd Defendant had two jobs during the E
day and night but he eventually lost both. It was said that, as a result, he
F F
then committed the present offences in order to earn some quick money.
G G
13. Again, despite the 2nd Defendant’s relatively young age, he has been
H H
before the court on 5 previous occasions with 33 convictions. 23 of those
I I
were theft or robbery related offences.
J J
Sentencing Considerations
K K
L 14. There are no tariffs laid down for any of the offences committed by the L
Defendants in the present case.
M M
N 15. Having considered the facts, I regard the following as aggravating factors N
for the theft charges :
O O
P (1) The offences were acts of joint enterprise and were clearly P
premeditated;
Q Q
R (2) The offences were committed by two adult males preying on young R
students who were generally less suspicious and less mature;
S S
T T
U U
V 5 DCCC500/2011/Sentence V
A A
(3) On each of the occasions, the Defendants made utterances to the
B B
students so as to make them follow their instructions. As a result,
C the students surrendered their mobile phones either out of fear or C
because they were misled;
D D
E (4) On each of the occasions, one of the students was taken away from E
his group and was asked to follow the Defendants. No doubt, that
F F
student must have had a lot of stress and fear when travelling with
G G
such strangers during the journey; and
H H
(5) The Defendants repeatedly committed the offences over a short
I I
period of time.
J J
16. Further, it is clear from their criminal records that these two Defendants
K K
were co-accused in the earlier case DCCC 212/2007 in respect of which
L they were sentenced for various “theft”, “robbery”, “attempted theft” L
and “claiming to be a member of a triad society” charges. The
M M
prosecution has provided the court with the brief facts in relation to that
N N
case and it was revealed that a modus operandi similar to the one
O employed here was used in those cases. O
P P
17. No doubt, a defendant would not and should not be punished for his
Q Q
previous convictions. However, it is clear that the previous sentences
R imposed did not have sufficient deterrent effect to stop these two R
Defendants from committing the offences in the present case and this is a
S S
matter which I should take into account when considering the
T appropriate sentence in this case. T
U U
V 6 DCCC500/2011/Sentence V
A A
18. Concerning the “falsely pretending to be a public officer” and “claiming
B B
to be a member of a triad society” charges, the 2nd Defendant committed
C these offences in order to get the students’ mobile phones. Considering C
the circumstances, I have no doubt that when these claims were made,
D D
the students were put under pressure and would more easily succumb to
E E
the 2nd Defendant’s demands.
F F
G
The Starting Points Adopted G
H 19. In view of the facts of this case, the aggravating factors identified above, H
and that the Defendants have not been deterred by the sentences
I I
previously imposed, I consider a starting point of 18 months to be
J appropriate for each of the theft charges. J
K K
20. As regards the charges of “falsely pretending to be a public officer”, the
L L
statutory maximum is a term of 6 months’ imprisonment. On the facts of
M this case, I consider a starting point of 3 months to be appropriate. M
N N
21. Insofar as the charge relating to the triad member claim is concerned, I
O O
would adopt a starting point of 9 months. The claim was made to the
P students under broad daylight in an open area by the 2nd Defendant who P
was a complete stranger to them. As I have mentioned above, it was clear
Q Q
that the claim was made in order to threaten the students to yield to the
R 2nd Defendant’s demand so that the students would part with their R
S properties. I regard these as aggravating factors. S
T T
U U
V 7 DCCC500/2011/Sentence V
A A
The Sentence Imposed
B B
22. Having considered all that was said on behalf of both Defendants, I do
C C
not see any strong mitigating factors other than their pleas. For that, each
D of them will be given a 1/3 reduction. D
E E
23. In other words, the 1st and the 2nd Defendants will be sentenced to a
F F
term of 12 months each for charges (1) and (6). In addition, the 2nd
G Defendant will be sentenced to a term of 12 months each for charges (2) G
and (4); 2 months each for charges (3) and (5); and 6 months for charge (7).
H H
I I
The Totality Principle
J J
24. Having considered the totality principle, I make the following orders :
K K
L The 1st Defendant L
M (1) 7 months of the 12-month term for charge (6) are to run M
N
consecutively to the sentence imposed for charge (1), making a total N
of 19 months’ imprisonment.
O O
P The 2nd Defendant P
Q Q
(1) 6 months of the 12-month term for charge (2) are to run
R consecutively to the sentence imposed for charge (1); R
S S
(2) 1 month of the 2-month term for charge (3) is to run consecutively
T to the sentences imposed for charges (1) and (2); T
U U
V 8 DCCC500/2011/Sentence V
A A
(3) 6 months of the 12-month term for charge (4) are to run
B B
consecutively to the sentences imposed for charges (1) – (3);
C C
(4) 1 month of the 2-month term for charge (5) is to run consecutively
D D
to the sentences imposed for charges (1) – (4);
E E
(5) 6 months of the 12-month term for charge (6) are to run
F F
consecutively to the sentences imposed for charges (1) – (5);
G G
(6) 3 months of the 6-month term for charge (7) are to run
H H
consecutively to the sentences imposed for charges (1) – (6), making
I a total of 35 months for all 7 charges. I
J J
K K
L L
M (Anthea Pang) M
District Judge
N N
O O
P P
Q Q
R R
S S
T T
U U
V 9 DCCC500/2011/Sentence V