HKSAR v. CHAN HEI TAK AND OTHERS

DCCC1110/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1110 OF 2010

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Reasons for Sentence

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1.  D1 pleads guilty to Charge 15, conspiracy to handle stolen goods, namely one private car BZ886, on 23 February 2010. D2 pleads guilty to Charge 17, handling stolen goods, namely one private car NF1068, between September 2009 and February 2010. He also pleads guilty to Charge 18, handling stolen goods, that is one private car KZ1368, between October 2009 and February 2010.

2.  D4 pleads guilty to Charge 15, conspiracy to handle stolen goods, namely one private car BZ886, on 23 February 2010.  He also pleads guilty to Charge 16, which is also conspiracy to handle stolen goods.  It is also the private car BZ886, but on 24 February 2010.

3.  D6 pleads guilty to Charge 6, theft of one private car BW396 between 19 and 20 January 2010.  He also pleads to Charge 8, which is theft of one private car JL1006, between 26 and 31 January 2010.  The 3rd charge he pleads guilty to is Charge 12, theft of a private car BZ886 between 17 and 18 February 2010. 

4.  V1 was a 2008 Toyota Estima private car BZ886. It was stolen in Aberdeen, Hong Kong, between 17 and 18 February, 2010.  False number plates NH9487 were put on this stolen car.  In the afternoon of 23 February 2010, D1 drove this vehicle V1 to an unnamed road near Mong Tseng Tsuen, Tin Siu Wai, to meet two other cars.  D4 got off from one of those two cars.  He took the seat of D1 and drove V1 to a farm nearby.  D1 left in another car.

5.  The next day, i.e. 24 February 2010, police raided the farm.  They found V1 there.  The original metal plate on the floor panel of V1 which bore the original chassis number had been removed and replaced by one bearing a new chassis number.  A new engine number was stamped on V1 by some of the metal stamps found near the car.  The vehicle licence of V1 had disappeared.  D4 at that time was standing in front of the car.  He fled but was caught.  A remote control that could start the car was found on him.  In court D4 admitted that he knew or believed V1 was a stolen vehicle. 

6.  D1 was arrested that afternoon in Yuen Long.  In court D1 admits he, D4 and other persons unknown had handled V1, knowing it was a stolen vehicle. 

7.  D2 was arrested at his residence in Yuen Long in that afternoon of 24 February 2010.  Four cars, including V9 and V10 were found parked outside his residence. 

8.  V9 was NF1068, a 2008 Nissan Elgrand station wagon which was reported stolen around 5 September 2009.  When police found it on 24 February 2010,  it carried number plates KX623. 

9.  V10 was KZ1368, a 2004 Toyota Alphard station wagon.  It was stolen in Yau Ma Tei between 6 and 7 October 2009.  When police found it outside D2’s residence, it had no number plates on it.

10.  D2 claimed that he bought both cars for his own use but he could not produce any proof.  In court, D2 admits he knew or believed V9 and V10 were stolen vehicles.

11.  On 24 February 2010, police arrested D6 too. D6 operated Best Achieve International Enterprises Limited.  This company imported four used vehicles from Japan in early February 2010.  One of those four imported vehicles was a 2006 Toyota Estima, whose chassis number was later falsely applied to V1 to make the stolen car appear as a legitimate car. 

12.  In court, D6 admits he and others had stolen V1 between 17 and 18 February 2010 for the purpose of re-stamping it as the imported car mentioned in paragraph 11.     

13.  Police found D6 had also imported, in December 2009, four other used vehicles from Japan, including a 2005 Honda Odyssey and a 2007 Toyota Sienta.

14.  On 24 February 2010, in D6’s warehouse in Yuen Long, there were five vehicles, including V2 and V3. 

15.  V2 was in fact BW396, a 2008 Toyota Sienta station wagon stolen in Sai Kung between 19 and 20 January 2010.  Its chassis number and engine number had been changed by re-stamping.  The false chassis number and engine number were copied from the used Toyota Sienta imported from Japan as mentioned in paragraph 13. 

16.  V3 was actually JR1006.  It was a 2004 Honda Odyssey station wagon stolen between 26 and 31 January 2010.  Its chassis number and engine number had also been re-stamped.  The false numbers were copied from the imported Odyssey from Japan as mentioned in paragraph 13. 

17.  D1 is now aged 33.  He has seven previous convictions, including taking conveyance without authority, going equipped for stealing, tampering with vehicles and handling stolen goods.  He recently pleaded guilty in another District Court case on 25 February 2011, that is DCCC1108/2010.  He pleaded guilty to one count of conspiracy to handle stolen goods and one count of resisting police officer.  He was sentenced to a total of 2 years and 8 months’ imprisonment.  Defence counsel says that conspiracy was also about handling vehicles.  It occurred in July 2010, five months later than the present case. 

18.  Counsel says D1 had financial difficulty and thus came to be involved in the present case.  D1 just drove the stolen vehicle V1 to the unnamed road in Tin Shui Wai on 23 February 2010.  He would get $3,000 as reward.  Counsel says D1 only played a minor role in this conspiracy.  Counsel asked me to consider the totality principle, given the fact that D1 is serving another sentence.

19.  D2 is aged 36.  He has three previous convictions, including going equipped for stealing, taking conveyance without authority.  Defence counsel says he has a young son and he is the sole breadwinner of the family.  His mother is suffering from terminal cancer. 

20.  Counsel says D2 is guilty of handling two vehicles, namely V9 and V10.  There is no evidence he was involved in the theft of these two vehicles.  As the two cars were found outside D2’s residence by police on the same day, counsel says concurrent sentences are appropriate. 

21.  D4 is aged 54.  He has a clear record.  Counsel says he used to be a roast meat master.  He has two children.  D4 became unemployed after this incident.  The family now have to rely on public assistance. 

22.  Counsel says D4 only played a minor role in the conspiracy.  On 24 February 2010 he was asked to repair the battery of V1 in the farm.  Charge 15 and Charge 16 both relate to V1.  Counsel asks me to impose concurrent sentences. 

23.  D6 is aged 34.  He has only one conviction of going equipped for stealing in 1994.  Counsel says D6 got himself involved in the present case due to financial difficulty.  He was not a car dealer but a merchant who used to buy goods from Japan for trading.  He has two children aged 6 and 9. 

24.  Counsel says the values of the three stolen cars relating to Charge 6, Charge 8 and Charge 12 are not known.  Counsel also emphasises the fact that D6 had chosen to plead guilty at a very early stage. Counsel submits that this might induce a domino effect on other defendants who later also plead guilty. 

25.  All counsel agree there is no tariff for the present charges. 

26.  Counsel for D6 nevertheless submits a recent District Court case DCCC574/2010, HKSAR v Yip Tak Wing, Michael, for my reference.  In that case the Honourable Deputy Judge has gone through a number of decided cases on handling stolen cars.  That District Court case involved two stolen vehicles.  The defendant was not a lone offender.  The judge adopted a starting point of 3 years’ imprisonment. 

27.  Counsel for D1 also draws my attention to two appeal cases in CACC498/1991, R v Chiu Ko Wai, the Court of Appeal reduced a 3-year sentence, after trial, to 2½ years for handling one stolen vehicle.  In CACC446/2001, HKSAR v Wong Kam Tat, the Court of Appeal says a 4 year starting point for a car dealer convicted of handling one vehicle was not too high.  The fact that the defendant was a car dealer was a serious aggravating factor. 

28.  Counsel says in the present case no defendant has been proved to be a car dealer.   

29.  I accept the submission that no defendant in this case has been proved to be a car dealer, that is one engaged in selling cars to others.  Nevertheless, stealing or handling a motor vehicle is always considered as a serious crime, so is a related conspiracy.  In CCC294/2006, Chiu Kwok Wai, the Court of Appeal considers that a 4 year term for one convicted of attempting to handle two stolen cars is not too high. 

30.  In the present case D6 imported eight used vehicles from Japan on two different occasions.  Three of these cars have their chassis number and engine number falsely applied to V1, V2 and V3 to make the three stolen cars appear as legitimate cars. 

31.  D6 admits he stole with other persons unknown V1, V2 and V3 at different times.  These three vehicles were only stolen after D6 had arranged for used similar models to be shipped to Hong Kong from Japan.  Clearly there was a high degree of planning.

32.  V1, V2 and V3 were not brand new cars when they were stolen, yet they were not very old cars either.  They were surely of value. 

33.  For Charges 6, 8 and 12, I adopt 3 years’ imprisonment as the starting point for each charge.  I give D6 one-third discount for his plea of guilty.  On each count of Charge 6, Charge 8 and Charge 12, D6 is sentenced to 24 months’ imprisonment.  The total sentence in D6 case involving the theft of three cars on three different occasions should be one of 4½ years' imprisonment after trial. After plea, it would be 3 years.  I thus order 6 months of each of the term imposed for Charge 8 and Charge 12 to run consecutively to each other, and also consecutively to Charge 6.  D6 has to serve a total of 36 months’ imprisonment for Charges 6, 8 and 12.

34.  D1 pleads guilty to Charge 15.  He drove the stolen car V1 to a place to hand it over to D4.  D1’s role, albeit limited, is still crucial in the whole sophisticated conspiracy relating to V1.  It justifies a starting point of 2½ years' imprisonment.  I give him one-third discount for his plea of guilty.  I sentence him to 20 months' imprisonment on Charge 15.  D1 has been serving a sentence of 28 months’ imprisonment for a similar case.  That was a later event than this one.  In theory the sentence I have imposed on D1 should run entirely consecutively to the sentence he is serving. But considering the principle of totality, I would order 14 months of the sentence on Charge 15 to run consecutively to his current 28-month sentence in DCCC1108/2010.

35.  For D4, although he is guilty of two conspiracies, both charges are related to V1 and took place on consecutive days.  Actually D4 could have been charged with one conspiracy covering both dates.  D4 drove V1 away from the unnamed road in Tin Shui Wai to a farm nearby on 23 February 2010.  The next day he was in front of the car trying to mend its flat battery.  His role would not be much different from that of D1 in this sophisticated conspiracy relating to V1.  For Charge 15 and Charge 16, I both adopt 30 months’ imprisonment as the starting point. 

36.  D4 only pleads guilty after the main witnesses against him had testified in the trial.  The evidence revealed clearly points to D4’s guilt.  D4 chooses to plead guilty then.  He is not entitled to the full one-third discount.  I'll give him only one-fifth discount, but I'll also give him a further discount of three months for his clear record  at the age of 54.  I thus sentence D4 to 21 months’ imprisonment on each of Charge 15 and Charge 16.  Both terms are to run concurrently. 

37.  D2 pleads guilty to two counts of handling, i.e. Charge 17 and Charge 18.  Those charges do not allege he handled the two cars V9 and V10 with others.  Nevertheless, handling such stolen cars, which were not very old and were surely of value when they were stolen, is serious enough. 

38.  Although V9 and V10 were found by police on the same day outside D2’s residence, D2 admits to the two charges which allege different periods.  The start days of the two periods are different.  Thus completely concurrent sentences are not appropriate.  If Charge 17 and Charge 18 are lumped together as one charge, the starting point would be one of 3 years' imprisonment.  As the charges stand now, I will adopt 2 years' imprisonment as the starting point for each of Charge 17 and Charge 18.  I give D2 one-third discount for his plea of guilty.  I sentence him to 16 months' imprisonment on each charge and order 8 months from the term for Charge 18 to run consecutively to Charge 17.  D2 thus has to serve a total of 2 years’ imprisonment.