HKSAR v. LAW PIT TAT

CACC 70/2020

[2021] HKCA 295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 70 OF 2020

(ON APPEAL FROM HCCC NO 389 OF 2019)

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J U D G M E N T

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1.  The applicant and Zhang Yi were variously charged in relation to their respective roles in stealing and handling the goods stolen. They were D1 and D2 respectively in the charges and I will refer to them by these designations. D1 was charged with four offences of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 to 4) and D2 was charged with two offences of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210 (Charges 5 and 6). They both pleaded guilty to the charges that they faced and on 13 May 2020, D’Almada Remedios J (the judge) sentenced D1 to a total term of 7 years’ imprisonment and D2 to a total term of 2 years and 10 months’ imprisonment.

2.  D1 now applies for leave to appeal against his sentence.  He appears in person, having had legal aid refused. 

3.  In the papers he has filed, the applicant complains that the sentence imposed on him by the judge was excessive.  He argues that the judge was wrong to treat him as a recidivist for previous similar offences that took place in 2008, some 12 years ago.  He further complains that the judge failed to take into account he was not the mastermind of these offences, which he committed because of financial hardship due to his wife’s medical expenses as a result of her being involved in a car accident.  The judge therefore erred in considering that his only mitigating factor was his guilty plea. 

4.  He finally complains that he pleaded guilty to the offences because the police officers told him that he would receive at most a sentence of 2 odd years’ imprisonment.  He also claims that he had written to the police wanting to provide them with information about the mastermind of the crimes but they did not respond to him. 

Brief facts

5.  The facts outlined to the judge and admitted on behalf of D1 and D2 reveal that D1 was a major player in a very elaborate scheme to steal goods from logistics companies.  D1 secured employment as a delivery driver in four different logistics companies and as part of his duties he was required to deliver goods using the company’s lorry and container.  In respect of each company, he stole the goods that he was required to deliver. He would then abandon the lorry and container and become uncontactable.  The first theft took place in August 2017 (Charge 1) and the remaining three thefts were in October 2018 (Charges 2, 3 and 4).

6.  Charge 1 took place on 14 August 2017 and involved a total of 10,573 watches, 7,850 pieces of watch components and 1,683,242 pieces of electronic components, with a total value of US$1,553,672.40.  Charge 2 took place on 13 October 2018 and involved a total of 114 laptops and 20,000 mobile telephones with a value of the laptops and mobile telephones being US$55,499 and HK$1,100,000 respectively.  Charges 3 and 4 both took place on 29 October 2018.  In Charge 3, the applicant stole 9,655 liquid-crystal display panels, with a total value of US$31,639.20 and 8 pieces of cowhide leather, with a total value of US$6,745.62.  In Charge 4, he stole 3,840 digital doorbells with a total value of US$182,361.10.

7.  The total value of stolen property in Charges 1 to 4 was HK$15,426,528.98. 

8.  In November 2018, the owner of the stolen mobile telephones in Charge 2 discovered that they were for sale on the open market.  He made inquiries and found out that the telephones were being sold through a warehouse in Yuen Long.  He reported the matter to the police who then carried out an investigation.  On 13 November 2018, they recovered the mobile telephones from the warehouse in Yuen Long.  D2 was arrested and charged for handling the mobile telephones that had been stolen in Charge 2 (Charge 5). They found on D2’s person keys to a warehouse in Kowloon Bay where they recovered 113 of the 114 laptops that had been stolen in Charge 2 (Charge 6). 

9.  On 26 January 2019, the owner of the logistics company that owned the digital doorbells was contacted on the telephone.  The caller demanded that he pay $100,000 if he wanted his goods back.  They caller directed him to attend a particular location where he could inspect the goods. He went there and with the aid of the police recovered all but 16 of the stolen digital doorbells.  

10.  Apart from the mobile telephones, the laptops and digital doorbells, none of the other goods stolen by the applicant were recovered.

11.  The police investigation revealed that D1 had illegally entered the mainland China and a request was made for his return.  In late 2018, he was located and detained in mainland China, and eventually return to Hong Kong on 18 February 2019.

12.  In subsequent video recorded interviews, the applicant admitted that he committed the four theft offences.  He explained how he applied to work as a driver in the relevant company.  He would collect the goods in question but did not deliver them as instructed.  He said that he sold all the goods he had stolen to a person named Nam Gor, who paid him a total of $130,000 for the goods. 

The applicant’s background in mitigation

13.  At the time of the offence the applicant was 52 years of age.  He was married and his wife and two children all lived in mainland China.  He had four previous convictions in relation to one case, which involved him dishonestly possessing and using a forged identity card, for which he was sentenced to a total of 8 months’ imprisonment on 27 February 2008.  It was submitted on the applicant’s behalf that he worked as a cross-border driver and was the sole breadwinner of his family.  It was explained that he committed the present offences because of financial hardship.  His wife was involved in a car accident and the family had incurred substantial debts because of the costs of her medical treatment.

14.  Whilst it was accepted that the present offences involved a breach of trust by the applicant, it was submitted by defence counsel that his culpability was “at the lower end of the spectrum” as he was employed as a mere driver at the material times and only short delivery journeys were involved.  It was also stressed that he was not the mastermind of the offences.

15.  Defence counsel submitted that the applicable starting point for the respective charges should be determined in accordance with the guidelines laid down in HKSAR v Cheung Mee Kiu[1], as revised in HKSAR v Ng Kwok Wing[2]. She also submitted that the applicant had no prior knowledge about the nature or the value of the stolen goods.  Whilst the four offences were distinct and separate, she submitted that they were committed over a relatively short period of time, and nearly all of the stolen items in Charges 2 and 4 had been recovered and returned to their owners.   

16.  The judge was referred to HKSAR v Lee Kwan Yee[3] by defence counsel, who urged the judge to take into account the applicant’s time spent in custody in mainland China between 14 December 2018 and 18 February 2019 (2 months and 4 days), pending his return to Hong Kong. 

17.  Defence counsel further urged the judge to take into account the fact that the applicant had cooperated with the police after his arrest and confessed to all four offences, noting that his remorse was reflected by his early guilty pleas. 

The judge’s reasons for sentence 

18.  The judge refused to give any reduction of the sentence for the time the applicant had spent in mainland China prior to his return to Hong Kong.  She noted that the applicant fled to mainland China with a view to avoid detection, and he was only located by the authorities there  at the request of the Hong Kong Police.  She also noted that the time spent by the applicant in custody in mainland China was not unduly long. 

19.  The judge referred to HKSAR v Guan Li-qing and Others[4] and held that the applicant could not benefit from any discount or mitigation arising from the recovery of the stolen goods, as he did not assist in, or contribute to, the recovery of any of them.  She found that what goods were recovered was a result of the efforts of the owners of the goods and the police. 

20.  Other than his early guilty plea, the judge found that the applicant’s personal circumstances did not warrant any further reduction.  Whilst the judge accepted that the thefts were unsophisticated in character, they were nevertheless premeditated and planned, and committed together with at least one other accomplice.

21.  The judge noted that although the applicant had not been told about the exact nature and the monetary value of the goods involved, she was nevertheless of the view that he must have been aware that the stolen goods were of considerable value because of the substantial rewards he received.

22.  As the thefts involved a breach of trust, the judge applied the guidelines laid down in Cheung Mee Kiu[5], as revised in Ng Kwok Wing[6]. She took into account the total value of the stolen goods and arrived at an overall starting point of 10 years’ imprisonment had he been convicted after trial.  She then enhanced this notional starting point by 6 months to 10 years and 6 months’ imprisonment for the planning and premeditation involved together with another or others.  After a reduction of one third for the applicant’s guilty plea, she arrived at a resultant sentence of 7 years’ imprisonment. 

23.  The judge then determined the individual sentences for each charge as follows:

(i)  For Charge 1, involving theft of goods worth about HK$12,164,121.93, a starting point of 8 years’ imprisonment was adopted which was reduced by one third to 5 years and 4 months’ imprisonment;

(ii)  For Charge 2, involving theft of goods worth about HK$1,534,125.68, a starting point of 3 years and 3 months’ imprisonment was adopted which was reduced by one third to 2 years and 2 months’ imprisonment;

(iii)  For Charge 3, involving theft of goods worth about HK$300,525.46, a starting point of 2 years’ imprisonment was adopted which was reduced by one third to 1 year and 4 months’ imprisonment; and

(iv)   For Charge 4, involving theft of goods worth about HK$1,427,755.91, a starting point 3 years and 3 months’ imprisonment was adopted which was reduced by one third to 2 years and 2 months’ imprisonment.

24.  In order to achieve the total sentence of 7 years’ imprisonment, the judge applied the totality principle and ordered that, 1 year 8 months’ imprisonment of Charge 4 should be served consecutively to the sentence in Charge 1; and the remainder of the terms of other charges should be served concurrently to each other.

The respondent’s submissions

25.  Ms Lilly Wong, for the respondent, opposes the present application.  She submits that the judge had applied the correct sentencing authorities concerning thefts that involved a breach of trust. Given that the total value of the stolen property was around HK$15.4 million, an overall starting point of 10 years was consistent with the applicable guidelines. 

26.  Ms Wong argues that the 6 months enhancement was justified because the circumstances of the case were very serious.  The applicant repeatedly abused his employers’ trust by stealing the goods that he was under a duty to deliver.  A total of four thefts were committed in the offence period, and they were all committed on either the first or second day of his new employment, which clearly showed that the thefts were planned and premediated.  Furthermore, at least another person was involved and the applicant had been offered and/or received substantial reward for his role in this criminal enterprise.  She submits that the enhanced starting point of 10 years and 6 months’ imprisonment was therefore appropriate. 

27.  Ms Wong also submits, that apart from the applicant’s guilty plea, there were no other mitigating factors in his favour. 

28.  As the applicant had been legally represented in the proceedings, and later unequivocally confirmed the guilty pleas before the judge, Ms Wong submits that there was no substance to his complaint that he was induced to plead guilty by the police.  She confirms that, at the request of the applicant’s then counsel, an interview was held by the police in late November 2019 for the purpose of taking a non-prejudicial statement from the applicant.  However, during the interview, the applicant informed the police that he had no information to provide.  In the end, no statement was taken and his then legal representatives were informed of this.  She submits his complaint that he was induced to plead guilty is devoid of merit.  

Discussion

29.  The judge gave very detailed reasons for sentence and addressed each and every matter relevant to the sentence she determined should be imposed on the applicant.  The thefts the applicant committed were carefully planned and elaborate.  They involved the applicant securing employment as a driver in a logistics company with the intention of stealing goods that he was required to deliver.  He engaged in deceptive conduct by pretending that he was a genuine employee, and even on occasion carried out delivery of goods before he stole the goods in question.

30.  There is no question that the applicant’s criminal conduct involved a serious breach of trust in each offence.  The judge followed the relevant authorities and noted that for thefts involving $15 million or more a starting point of 10 years or above was suggested.  She adopted an overall starting point of 10 years imprisonment. 

31.  The judge also considered, correctly in my view, that there was the aggravating factor of a multiplicity of offences that were elaborately planned with another or others.  The judge enhanced the sentence for this factor by 6 months.  There was no enhancement, as claimed by the applicant, for the applicant’s previous offences of dishonesty.

32.  The applicant was detained in mainland China for a period of 2 months and 4 days before he was returned to Hong Kong.  The judge took this factor into account but, in the exercise of her discretion, decided that in the circumstances this period of detention should not be taken into account in respect of the sentence she imposed.  She noted that he had fled Hong Kong and illegally entered mainland China.  It is well established that time spent in custody in a foreign jurisdiction was not generally a matter to be taken into account unless, in the discretion of the judge, it was felt that justice demanded that it should be but it would depend upon the particular facts and circumstances of the case.  See Lee Kwan Yee and Another[7].  The applicant committed the first offence in August 2017 and the last three offences all in October 2018, immediately after which he fled to mainland China.  As noted by the judge, he did this in order to avoid detection and arrest knowing that he had committed serious crimes in Hong Kong.

33.  The judge also refused to give any reduction to the applicant’s sentence for the recovery of some of the stolen goods.  As noted by the judge, the goods that were recovered were due to the efforts of the relevant owners and the police.  Furthermore, a considerable quantity of the goods stolen were not recovered.

34.  The applicant submits that he was not the mastermind and he did not know the value of the goods.  He refers to Ng Kwok Wing and contends because he did not know the value of the goods he should not have been sentenced in accordance with the band involving theft of goods of the value of $15 million or more.  As already noted, the judge considered the total value of the goods and took a global view in order to appropriately assess the overall criminality involved.  The total value of the goods was $15.4 million.  The judge then considered the value of the goods in relation to each charge and adopted a starting point in accordance with the suggested guidelines in Ng Kwok Wing.  She determined the individual sentences of the four charges after she allowed for the one third discount.  The total sentences amounted to 11 years and 2 months’ imprisonment which she reduced to 7 years’ imprisonment after applying the totality principle.  It seems she did not take into account the aggravating factors of the multiplicity of the offences that were committed together with another or others, and the degree of planning and premeditation involved in the perpetration of the crimes, when determining the notional starting point of each charge, but she may have borne this in mind when she applied the totality principle.  It would have been preferable had the judge carried out the exercise by focusing on the individual sentences, making appropriate adjustments for the aggravating and mitigating factors, and any further adjustment for the totality of the sentences.

35.  It is clearly apparent that the judge carefully considered the relevant authorities and appropriately applied them to the facts and circumstances of this case.  The applicant’s criminal conduct involved him in a series of very serious crimes and his personal circumstances provided little if any mitigation.

Conclusion

36.  I am not persuaded that the applicant has cause for complaint of the sentence the judge imposed on him, and accordingly his application for leave to appeal against his sentence is refused.

37.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but if he is minded to do so, he should bear in mind that he may face the consequences of a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1] [2006] 4 HKLRD 776.

[2] [2008] 4 HKLRD 1017.

[3] [2004] 1 HKC 462 at [5] and [6].

[4] [2005] HKCU 1495, at [9].

[5] [2006] 4 HKLRD 776.

[6] [2008] 4 HKLRD 1017.

[7] At [5]-[7].