HKSAR v. PHAN BAO

DCCC 216/2022

[2023] HKDC 79

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 216 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Phan pleaded guilty before me to one charge of Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210. Particulars are that he, between a day unknown in early December 2021 and 23 December 2021, in Hong Kong, dishonestly received certain stolen goods, namely one motor cycle bearing registration mark VR4919, property belonging to Gurung Rajen, knowing or believing the same to be stolen goods.

Facts admitted by Mr Phan

2.  On 23 December 2021, whilst patrolling in Hung Shui Kiu, New Territories, PC 11596 found Mr Phan acting furtively.  He thus intercepted Mr Phan.  Upon search, a vehicle key was found on Mr Phan.  Mr Phan said he owned a motorcycle and pointed to it in its parked position about 10 metres away.

3.  Enquiries were made to check the identities of Mr Phan and the motorcycle.  It transpired that the motorcycle was a missing vehicle (valued at $10,000 when purchased).  Mr Phan was asked how he came to be in possession of it but he did not answer and he looked nervous.

4.  Mr Phan was arrested for taking conveyance without authority.  The vehicle key on Mr Phan was tested on the engine of the motorcycle with a positive result.

5.  In a subsequent cautioned interview, Mr Phan stated that:-

(a)  He became acquainted with a male named Ah Kit since May 2021;

(b)  In early December 2021, Ah Kit said he needed to go to the Mainland and gave the key to Mr Phan and asked Mr Phan to look after the motorcycle for him when he was away; and

(c)  On the day of arrest, Mr Phan went to Hung Shui Kiu to have a look at the motorcycle.

6.  When asked, Mr Phan was not able to give the contact details of Ah Kit.

7.  The person believed to be the owner of the motorcycle examined the motorcycle and confirmed that it belonged to him.

8.  Mr Phan now admits that he, knowing or believing the motorcycle to be stolen goods, dishonestly received it.

Criminal record

9.  Mr Phan has 11 previous convictions 10 of which relate to offences which are similar to the present offence in that they were Theft Ordinance offences.

Antecedents

10.  Mr Phan is aged 40 (39 at the time of the offence), born in Vietnam.  He received primary education in Hong Kong.  He was unemployed at the time of arrest.  Mr Phan is separated from his wife and lived in public housing in Tin Shui Wai with his parents.

Mitigation

11.  Mr Terry Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Phan.  The following is a summary of the mitigation submissions.

12.  There are no sentencing guidelines for the offence of handling stolen goods.  The proper sentence for each case depends on its own facts and circumstances, its nature, its background, taking into consideration its aggravating and mitigating factors.  Some of the usual aggravating factors are listed in HKSAR v Yau Pak Chun, CACC 211/2006, at para 15.  Criminal records of the defendant are to be considered as well.

13.  In this case, Mr Phan has indicated his guilty plea at the earliest moment.  He deserves to be given a one third reduction in sentence.  The value of the old motorcycle is $10,000 which is not a very substantial amount of money.  He has quite a lot of criminal records, but almost half of them were committed when he was a juvenile ie under 16 years old.  He has no similar (meaning handling)  conviction record, although most of his criminal records involve an element of dishonesty.

14.  Mr Wong invited the court to adopt a starting point of 18 months before any aggravating circumstance is considered.

Sentence

15.  The maximum sentence for a Handling offence is 14 years’ imprisonment whereas that for a Theft offence is only one of 10 years.

16.  There are indeed no sentencing guidelines for an offence of handling. However, in HKSAR v Cheng Chun Ming, CACC 356/2000, the Court of Appel said that:

“Cases involving the theft or handling of motor cars are very serious and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

17.  I am of the view that this dicta applies equally to theft or handling of motorcycles.

18.  Given this is a relatively simple case of handling involving a motorcycle valued at $10,000, I will adopt an initial starting point of 18 months’ imprisonment.  However, Mr Phan is clearly a recidivist in Theft Ordinance offences.  In order to further deter him from future similar endeavours, I will raise the starting point to 21 months’ imprisonment.

19.  Mr Phan pleaded guilty in good time earning for himself a 1/3 discount. There are no other mitigating factors of weight that will earn him further reduction in sentence.

(Mr Phan, please stand)

20.  The sentence is therefore 14 months’ imprisonment.