HKSAR v. CHENG CHI WAI

DCCC1174/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1174 OF 2009

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Reasons for Sentence

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1.  The defendant, Mr Cheng Chi-wai, faces five counts of handling stolen goods, all involving stolen vehicles. The statements and particulars of the offences are set out in the charge sheet and the court is not going to repeat them now. He pleads not guilty to all the charges but is convicted of all of them after trial.

Facts found

Charge 1

2.  According to the facts found by the court during the trial, a goods vehicle of registration number GT 2575 which was parked at the roadside of Cho Yuen Street, Yau Tong, was found missing on 1 June 2009. The vehicle was equipped with a global positioning system (“GPS”)device and at 1100 hours on 1 June 2009, with the assistance of the service provider of the GPS, the vehicle was traced to the location of the present offences which was a yard at Ha Shan Kai Wat, Ping Che, NT. The yard was surrounded by hoarding of about 6 metres high which could not be seen through.

3.  Police arrived at the yard at about 1240 hours. PC53987 and his colleague climbed on top of a container to look over the hoarding into the yard and saw the defendant standing inside there. When PC53987 shouted, “Police”, the defendant started to run away and the police officers gave chase, keep shouting “Police”. They caught the defendant after a chase of about 200 metres.

4.  The goods vehicle GT 2575 was found inside the yard and its goods compartment had already been removed. Its tailboard and some items which were originally placed on board of the vehicle were also found inside the yard.

Charge 2

5.  The goods vehicle of registration number JF 7804 which was stolen from Reclamation Street, Kowloon, between 2200 hours on 25 April 2005 and 0700 hours on 26 April 2005 was found inside the yard. It bore the registration mark HX 615 when it was found.

Charge 3

6.  The goods vehicle of registration number HX 3639 which was a stolen vehicle was found inside the yard. It bore the registration mark KU 5355 when it was found.

Charge 4

7.  The goods vehicle of registration number JH 1541 was found stolen from Fan Ling on 27 May 2009. The cabin of the vehicle which was split up into three parts was found inside the yard while the rest of the vehicle could not be located.

Charge 5

8.  The goods vehicle of registration number HX 6283 which was stolen from Yau Tong between 1830 hours on 31 May 2009 and 1900 hours on 1 June 2009 and the goods vehicle of registration number LJ 7350 which was stolen between 30 May 2009 and 0600 hours on 1 June 2009 also from Yau Tong were found inside the yard.

9.  A large number of tools including paint spraying guns and electrical grinders were found inside the yard.

10.  It is the finding of the court that the defendant was in control and custody of these five stolen vehicles which were taken to the yard for storage or dismantling knowing that they were stolen vehicles.

Criminal record

11.  The defendant has 6 previous convictions with one involving dishonesty. He was last sentenced to 3 months’ imprisonment on 25 September 1995 for driving while disqualified and in breach of a suspended sentence.

Background report

12.  The court obtains a background report of the defendant with particular emphasis on the welfare of his two children. According to the report, the defendant is aged 38, married with a daughter aged 4 and a son aged 18 months. The wife is a Chinese mainlander.

13.  The defendant was brought up in a fisherman family of fair financial conditions and strict discipline. His academic performance was poor and he received education up to Form 1 only. He had worked as an electrical and plumbing apprentice, garage worker, decoration worker and driver.

14.  In 2000 he began working in waste materials collection business with a partner and set up his own recycling business in 2006 which he ran until June 2009, earning about $20,000 a month. During the bail period of the present case, he worked as a delivery worker and driver, earning about $600 to $700 a day.

15.  The defendant was sentenced to detention centre for an offence of burglary in 1983 when he was 16 years old. He also has conviction record of traffic-related offences and was sentenced to 3 months’ imprisonment when he was convicted for a second time of driving while disqualified in September 1995.

16.  The wife and the two children used to live in China and the mother of the wife helped to look after the children. The defendant visited them occasionally while he was working in Hong Kong. When the daughter was 3 years old, the defendant brought her to Hong Kong to study in a kindergarten. The wife is now staying in Hong Kong temporarily on a two-way permit while the son is being looked after by the defendant’s mother-in-law in China. The wife indicated that she would take the daughter back to China if the defendant was imprisoned for a long period of time.

17.  The defendant revealed that he had received treatment at Yung Fung Shee Clinic and was assessed to have anxiety and depression. He was required to attend follow-up treatment at two months’ intervals.

Mitigation

18.  The counsel for the defendant points out in mitigation that although the defendant has a criminal record of an offence of burglary, it occurred when the defendant was 16 years old and he had served his time in the detention centre. The defendant did not give up himself after discharge from the detention centre and became an apprentice and eventually landed himself in the recycling business and later ran his own business earning about $10,000 to $20,000 a month.

19.  The defendant is a filial son and has been supporting his mother since his father died in 1994. He is also a good father and good husband with a good family. The defendant was the sole breadwinner of the family. The wife is temporarily in Hong Kong on a two-way permit and will have to leave Hong Kong in April this year.

20.  The defence counsel emphasizes that there is no evidence of the defendant being the sole organizer or distributor in the offences which did not involve any international element or cross-border activities. There is also no evidence linking the handling of the stolen vehicles with the theft of them.

21.  The defendant is of low intelligence. He is not a smart person and is suffering from anxiety and depression. The defence counsel asks the court to show mercy to the defendant and not to impose a sentence to crash the defendant’s morale and to allow him to reunite with his wife and children as soon as possible.

Sentence

22.  Handling stolen goods is a serious offence. Its evil lies in its inherent nature of giving assistance to people who steal, thus encouraging them to commit the crime. The offences in the present case were committed in a planned and well-organized manner. The yard was rented in the name of the defendant using the name of his company. High hoarding was erected around the yard so that people from outside could not see the inside of the yard. Tools for spray-painting vehicles, dismantling vehicles and obliterating the chassis and engine numbers of vehicles were found inside the yard. There were actually vehicles inside the yard with their chassis or engine numbers obliterated or partly obliterated.

23.  The goods vehicle GT 2575, according to the GPS record, was stolen at 2159 hours on 30 May 2009 and when it was found in the yard in the morning of 1 June 2009 the goods compartment and the number plate of the vehicle had already been removed. This shows that the operation of the defendant in the handling of stolen vehicles was well-organized and efficient. Judging from such efficiency, it is obvious that it was a syndicated operation of the thefts and the handling of the stolen vehicles and there was a link between the two crimes. Although there is no evidence that the defendant was the sole organizer or distributor in the crime, it is of no doubt that he played an important role in it.

24.  There are no sentencing tariffs in the offence of handling stolen goods and the court has to look at every individual case to arrive at a just and appropriate sentence. Although the defendant has a relatively low intelligence level, it is only to the extent that he is not as smart as other people. He is by no means mentally incapacitated to such an extent that he was exploited to commit the crime.

25.  The court understands that sending the defendant to imprisonment would give rise to difficulties to his wife and two children, but the defendant should be prepared for such consequences when he decided to embark on his illegal deeds.

26.  The court is of the view that the five offences in the present case are best dealt with by way of a global sentence. Having considered the whole circumstances, the court adopts a starting point of 3½ years’ imprisonment for each one of the charges. The court is of the view that there is no ground of mitigation which merits any discount in the sentence. The defendant is accordingly sentenced to 3½ years’ imprisonment for each one of the five offences.

27.  Taking into account the nature of the case and the totality principle, the court orders all the sentences to run concurrently. The defendant is therefore to go to prison for 3½ years.