HKSAR v. HUSSAIN RIZWAN

DCCC 889/2019

[2020] HKDC 457

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 889 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant, Hussain Rizwan, a Form 8 holder, pleaded guilty before me to a charge of theft, which concerned 100 tonnes of H-iron and four metal poles, property belonging to Hero Step Engineering Limited.

2.  The defendant admitted the following facts.

3.  Mr Lee Ming Kau (PW1) was the owner of Hero Step Engineering Limited and he rented a warehouse at Lot 545, DD 106, 30 Tung Wui Road, Pat Heung, Yuen Long, New Territories, which was an open-air space surrounded by metal sheets with entrance secured by a metal chain and a padlock.

4.  Mr Lam Chow Mau (PW2) was the owner of Shun Lee (International) Trading Company Limited, which operated a metal recycling business.  On 27 August 2019, the defendant arrived at PW1’s warehouse alone and showed PW2 some photos of H-iron and indicated that he had three to four trucks of metal to sell.  On 31 August 2019 at around 3 pm, PW2 received some WhatsApp messages from the defendant, including the photos of H-iron and a message “tomorrow afternoon”. PW2 and the defendant then discussed payment arrangement on the phone.

5.  Mr Yung Chi Wing (PW3) was the owner of Yat Chun Transportation Limited.  On 31 August 2019 at around 1 pm, PW3 received a phone call from a person who said that he was helping a friend to rent three crane trucks and two flatbed trucks with driver service at 1 pm on 1 September 2019.  PW3 called his friend Mr Lee Man Wai (PW4) to help arrange for the trucks.

6.  On 31 August 2019 at around 3.30 pm, PW1 left his warehouse upon confirming that the 100 tonnes of H-iron and four metal poles (in total valued at $680,000, the “stolen properties”) were stored properly thereat.

7.  On 1 September 2019 at around 1 pm, PW3, PW4 and three other drivers arrived outside Kam Sheung Road.  The defendant got on one of the trucks and instructed all drivers to enter PW1’s warehouse to pick up the stolen properties and transport the same to PW2’s premises.  CCTV installed at PW2’s premises clearly captured the defendant directing the trucks to a designated area for the weighing of the stolen properties.  Upon delivery, PW2 paid, in total, cash of $95,300 and four cheques amounting to $131,500 to the defendant for the stolen properties.

8.  On 2 September 2019, the defendant talked to PW2 on the phone and asked whether he could return the cheques and get cash instead.  They agreed to meet at PW2’s premises later that day.

9.  PW1 reported to the police on 2 September 2019 upon discovering that the stolen properties went missing and he later found the stolen properties at PW2’s premises.

10.  At around 12.45 pm on the same day, PW1 and a police officer went to PW2’s premises to investigate the matter.  At that juncture, the defendant attended the scene to return the cheques and get cash from PW2.  The defendant was then arrested for theft.

11.  PW3, PW4 and PW5 were able to identify the defendant in identification parades as the person who directed them to PW1’s warehouse to remove the stolen properties and drove them to PW2’s premises.

12.  The criminal record summary shows that the defendant was once convicted for failing to surrender to custody without reasonable cause as appointed and was sentenced to 2 months’ imprisonment.  Mr Leung and Mr Pannu informed me that it is not really clear whether the defendant had been so convicted.

13.  The antecedent statement of the defendant shows that he was born in Pakistan in 1982 and he is a Form 8 holder in Hong Kong.  He received education up to primary school level in Pakistan.  As a Form 8 holder, naturally the defendant was unemployed in Hong Kong.  The defendant before his remand lived alone in Pat Heung, New Territories.

14.  I am grateful to Mr Pannu for his detailed written mitigation.  He told me in mitigation that the stolen properties in question - that is, the 100 tonnes of H-iron and four metal poles, valued at $680,000 - was the sale values of the stolen property.  Mr Pannu submitted that the stolen properties were placed in an open-air space warehouse.  When unsecured, this open-air space warehouse appeared like a dump yard.  He submitted that PW1 had suffered no loss in this case and I am told there was an agreement made between PW1, the owner of the stolen properties, and PW2, who had paid some money for the stolen properties.  PW2 was allowed to keep $95,300 worth of scrap metal and the loss of PW1 was limited thus to $95,300.

15.  Mr Pannu drew my attention to the cases of HKSAR v Wat Wai Leung, CACC 276/2000; HKSAR v Cheung Mee Kiu, CAAC(CACC?) 999/2006(99/2006?); and HKSAR v Wong Yin Chun, DCCC 690/2015.

16.  Mr Pannu submitted that the present case is certainly not a breach of trust case but was rather an opportunistic theft by the defendant who saw the opportunity.

17.  Mr Pannu submitted that a starting point in the region of 1½ years to 2 years should be adopted.  He asked me to take into account the actual loss suffered by PW1 was limited to $95,300 and he urged me not to enhance the sentence because of the defendant’s Form 8 status.

18.  In sentencing the defendant, I have taken into consideration the facts of the case, the value of the stolen properties, the background of the defendant, and all the matters urged on the defendant’s behalf by Mr Pannu.

19.  I do not agree with Mr Pannu that the present case should be classified as an opportunistic theft.  It was clearly some planning by the defendant. 

20.  The offence took place on 1 September but before the defendant committed the offence he had already approached PW2 for the sale of the stolen properties.  The defendant also approached PW3 for the hiring of three crane trucks and two flatbed trucks with driver services.

21.  On the day in question, the defendant also led PW3, PW4 and three drivers to the open-air warehouse of PW1 for the purpose of removing the stolen properties from the open-air warehouse and drove them to PW2’s premises.

22.  For the submissions that the loss of PW1 was limited to $95,300, in my judgment, it was all due to the prompt investigation work and the reaction of PW1 and had nothing to do with the defendant.

23.  In my judgment, an initial starting point of 2 years’ imprisonment is appropriate. 

24.  The initial starting point should be enhanced for 3 months because of the Form 8 status of the defendant.

25.  For the reasons given, I adopt a starting point of 27 months. 

26.  The defendant is entitled to one-third reduction for his early guilty plea.  That would bring the starting point down to 18 months’ imprisonment.

27.  Apart from the guilty plea of the defendant, there is no other mitigating factor which can further reduce the sentence that I am going to impose.

28.  For the reasons given, I sentence the defendant to 18 months’ imprisonment.