HKSAR v. KU MAN SHING AND ANOTHER

 DCCC77/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 77 OF 2010

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Reasons for Sentence

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1.  The 1st defendant pleaded guilty on the first day of trial to Charges 1 and 2.

2.  The 2nd defendant was convicted after trial of Charges 1 and 3.

3.  I do not intend to repeat the facts of this case. I have set them out in detail in my verdict. I will, however, summarise the facts.

4.  The 1st and 2nd defendant handled two stolen light goods vehicles in an open air car park on 10 November 2009. I am sure they were waiting for a purchaser to arrive to hand them over. They were caught red-handed by the police watching the car park.

5.  The police moved in when the 1st and 2nd defendant drove these two stolen light goods vehicles within the car park vicinity, Charge 1.

6.  The 2nd defendant tried to run away and resisted arrest when chased by police. This is Charge 3.

7.  The 1st defendant was searched and the police found two photocopies of two forged vehicle registration documents relating to the two stolen vehicles of Charge 1. This is Charge 2. I am sure these documents were to be handed over to the purchaser.

8.  There is no evidence the 1st and 2nd defendants were involved in the theft of these vehicles.

9.  The prosecution has applied for the sentence in respect of Charge 1 to be enhanced on the basis of prevalence under the Organised and Serious Crimes Ordinance.

10.  The statement of Mr Tsue Chun-tung, Jackey, was read into open court and not challenged. It is Exhibit P14.

11.  He sets out the statistics for stolen vehicles between the years of 2005 and October 2009. He has broken down the statistics for this period into several categories. He has set out how many vehicles were stolen in a given year, and within that number how many were light goods vehicles as well as how many were Toyota Hiace within that figure.

12.  The two vehicles of Charge 1 are Toyota Hiace vehicles.

13.  It is worthy of note that the offence date is November 2009. The statistics are provided up until October 2009 and the sentence is today some 9 months later.

14.  Between 2006 and 2007, the overall missing vehicles reduced from 1,774 to 1,398, a decrease of 376 vehicles.

15.  Between 2007 and 2008, the overall missing vehicles reduced slightly by 38 vehicles.

16.  Between 2008 and October 2009, the overall missing vehicles reduced from 1,360 to 932.

17.  I broke that figure down into a monthly average. For light goods vehicles, the monthly average in 2008 was 36.8 vehicles compared to 23.1 light goods vehicles stolen per month in 2009.

18.  More specifically where missing Toyota Hiace models are concerned, 278 were stolen in 2007. This jumped to 348 stolen in 2008. That is a monthly average of 29 vehicles.

19.  In 2009, the first 10 months, there were 211 stolen. That would be a monthly average of 17.5 vehicles. This would still be more than one Toyota Hiace every two days.

20.  If sentencing was in or around the end of 2009, I would say an increased enhanced sentence would be justified.

21.  Statistics need not numerically increase upwards to be defined as prevalence and justify enhancement.

22.  In HKSAR v Xu Mai Qing, CACC464/2005, the Court of Appeal said the prosecution has to prove an offence is prevalent not that the numbers of offences increase steadily over time.

23.  I would say one Toyota Hiace stolen at least every 2 days is prevalent.

24.  The defence argue that prevalence of an offence must be considered at the time of sentence not at the time of the commission of the offence.

25.  I considered the authority of HKSAR v Chung Chi King, CACC504/2001, and I quote from paragraphs 23 and 24 of that appeal:

“23. Ultimately in this case it is a question of  interpreting the statistics to see whether a crime of this nature was prevalent at the time of the sentence.

24.  “Furthermore, as a matter of statutory construction, the prevalence of the offence must be considered at the time of the sentence since the purpose of an enhanced sentence is to impose a deterrence on potential wrongdoers.  Hence the time of the commission of the crime is irrelevant.”

26.  I read this authority to be in agreement with both defence counsels’ submissions.

27.  The statistics before me stop as of October 2009. I have no idea what the statistics are from then to now.

28.  Enhancement of a sentence under this ordinance should be used sparingly and carefully.

29.  I am not satisfied I have been convinced the offence on statistics before me is prevalent now. There is no clear and cogent evidence of this being a fact, and I am reluctant to enhance the sentences on Charge 1. The application of the prosecution is refused.

30.  I have heard mitigation in full from both defendants. The 1st defendant’s counsel has provided me with a full and written mitigation.

31.  The 1st defendant committed these offences whilst on bail for very similar offences and the facts of that case were of a similar nature.

32.  He was arrested for that offence on 20 September 2009, less than 2 months before he was arrested for this offence. He explains why he did it again, but to commit an offence let alone a similar offence whilst on bail is an aggravating factor I will take into consideration.

33.  The defendant, prior to these two cases, had a clear record. The defendant is now serving a 4 year and 9 month sentence imposed in DCCC1440/2009 where he was convicted after trial.

34.  The 2nd defendant is not a man of a clear record. He has six previous convictions. However, none are similar and most were committed when he was still a teenager. His last conviction was in 2002.

35.  I have considered the 2nd defendant’s role in this case and he is not a mastermind. He is clearly a cog in the wheel to ensure a successful transaction.

36.  The 1st defendant is, I am sure, not the mastermind either, but he committed this offence with his eyes wide open knowing he was on police bail for committing the same offence.

37.  Handling stolen goods, depending on what the facts are and the items stolen, is a serious offence.

38.  In R v Hui Kam Ming, CACC471/1993, the Court of Appeal there thought that at that time the sentences in Hong Kong for handling stolen goods were too lenient and the time had come to revise the level of sentencing upwards.

39.  For cases where the defendant handled goods that had been taken in a major theft or robbery, or were of a high value, there they said a starting point for sentence between 5 and 7 years would not be inappropriate for such cases in the future.

40.  I have considered authorities where vehicles have been stolen and the sentences imposed, such as Attorney General v Chan Sik Ming [1996] 2 HKCLR 156. There, a defendant drove a stolen vehicle across the border for a reward of $30,000 and the Court of Appeal considered it appropriate to adopt a starting point of at least 5 years.

41.  This case was relied on in another authority, HKSAR v So Kong Shun, CACC306/1997, where that court concluded a 5 year starting point for handling a stolen medium goods vehicle was not excessive.

42.  I do not have before me the value of these two vehicles, but I will accept that the value of them would not be particularly high. They are not new vehicles.

43.  In this case, there is no direct evidence of a syndicate or smuggling vehicles to China.

44.  I will also take into account the roles played by these two defendants.

45.  Having considered all the mitigation put before me and all the facts of the case, this is how I intend to deal with disposal of the matter.

46.  Defendants, please stand up. The 1st defendant, Charge 1, I will take a starting point of 4 years and 6 months. This is a higher starting point than what I will impose on the 2nd defendant because I believe that the 1st defendant involved the 2nd defendant. He was in possession of the copies of the forged vehicle registration documents. In addition, the fact he committed this offence whilst on police bail, I have already said, is an aggravating factor.

47.  For Charge 2, I will take a starting point of 21 months. This defendant, having pleaded guilty, is entitled to a discount of one-third.

48.  This will result in the 1st charge being a sentence of 3 years; and the 2nd charge being a sentence of 1 year and 2 months.

49.  The 2nd defendant, I will impose a starting point for Charge 1 of 3 years and 9 months; for Charge 3, I will take a starting point of 4 months. I see no reason for any discount to these starting points.

50.  Ultimately, the 1st defendant, Charge 1 will be a 3 year sentence; Charge 2, a sentence of 1 year and 2 months, of which 4 months will be consecutive to Charge 1 and the balance concurrent. That would mean a total sentence of 3 years and 4 months.

51.  You have less than one month ago been sentenced, as I have said, to you 4 years and 9 months in DCCC1440/2009.

52.  I have taken into account the totality principle as well as the similarities of the offences and the close proximity of the commissions of the offences and I will order that 1 year of the 3 year 4 month sentence imposed today will be served consecutively to DCCC1440/2009 and the balance concurrently. That would mean a total sentence of 5 years and 9 months. Have a seat please.

53.  2nd defendant, you are sentenced to, for Charge 1, 3 years and 9 months; for Charge 3, 4 months. One month of the 4 month sentence will be served consecutively to Charge 1 and the balance, 3 months, concurrently. Your sentence will be in total 3 years and 10 months.