HKSAR v. TAM CHUN LEUNG

DCCC 99/2025

[2026] HKDC 210

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 99 OF 2025

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REASONS FOR SENTENCE

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1.  There are two defendants (D1-D2)  in this case. D2’s sentence had been dealt with. This is the sentence of D1.

2.  D1 pleaded guilty to an amended charge of handling stolen goods[1]. The particulars of the charge stated that between on or about 16 August 2024 and 8 September 2024, both dates inclusive, in Hong Kong, D1 dishonestly assisted in the retention, removal, disposal, or realization of certain stolen goods, namely 40 bottles of liquor, 150 discs, legal tender coins in the sum of about $4,000 Hong Kong currency, one set of commemorative stamps and one vinyl record player, by or for the benefit of another, or dishonestly arranged so to do, knowing or believing the same to be stolen goods.

SUMMARY OF FACTS

3.  Mr Leung (‘PW1’)  has been in possession of Room B, 1^st Floor, Yan Fat Building, Nos 39-41 Shek Kip Mei Street, Sham Shui Po, Kowloon, Hong Kong (‘the Flat’)  since the passing of his mother, the original owner, in June 2022.  The Flat was used mainly to store the belongings of PW1’s mother and was otherwise vacant since then.

4.  In mid-August 2024, PW1 went into the Flat for an inspection and found that things there were in order.  PW1 then made sure that all windows and the wooden front door were locked before leaving.  The metal gate outside the wooden front door to the Flat was never locked as the lock was faulty.

5.  On 6 September 2024 at around 2:45 pm, PW1 returned to the Flat for an inspection and found that the wooden front door could not be pushed open.  Neither the metal gate nor the wooden front door had any signs of tampering.  PW1 then arranged for a locksmith to open the wooden front door.  Upon entering the Flat, PW1 found that the Flat had been ransacked, each of the windows had been opened, and one of the windows had fallen off its frame and landed on an air conditioner compressor outside the Flat.  PW1 reported the case to police on the same day.

6.  PW1 then tallied up the properties in the Flat and found that items worth a total of HK$53,500 were missing (‘Missing Properties’):

(i)  40 bottles of liquor worth HK40,000;

(ii)  150 disc worth HK$7,500;

(iii)  legal tender coins in the sum of around HK$4,000;

(iv)  A set of commemorative stamps worth HK$2,000; and

(v)  A vinyl record player.

D1

7.  On 8 September 2024, police attended the Flat for an investigation and found a locked room in a nearby stairwell at 1-3 Un Chau Street (‘Storeroom 1’).  That same day, police went back to 1-3 Un Chau Street for an anti-burglary patrol and saw the wooden door to Storeroom 1 half-closed.  D1 was sitting on a sofa outside Storeroom 1 and opening a box of liquor.

8.  Upon search of Storeroom 1, police found 17 bottles of Henri De Malrome XO spirits and 13 bottles of Marquis de Vernuiset dessert wine (‘Storeroom 1 Items’).  With the consent of D1, PW2 inspected D1’s smartphone and found photos of Henri De Malrome XO spirits and Marquis de Vernuiset dessert wine taken on 17 and 26 August 2024. D1 was arrested and cautioned.

9.  PW1 later identified the Storeroom 1 Items as part of the Missing Properties.  The rest of the Missing Properties could not be recovered.

10.  At all material times, D1 was in possession of Storeroom 1.  He assisted in or arranged for the retention, removal, disposal, or realization of the Missing Properties, knowing the same to be stolen goods.

CRIMINAL RECORD AND BACKGROUND OF THE DEFENDANT

11.  D1 has 13 previous convictions involving 17 charges, 9 of them are related to dishonesty. The offences include: possession of an identity card relating to another person, possession of dangerous drug, theft, attempt theft, resisting a police officer in execution of duty, common assault, possession of offensive weapon in a public place and burglary.

MITIGATION

12.  D1 is 49 years old. D1 was born in the mainland China.  He arrived in Hong Kong in the 2000s and worked as a free lance home renovation worker since then.  D1 is a registered electronic worker.  He earned around HK$10,000 per month.  D1 divorced in 2017 and has 2 daughters aged 14 and 18.  The 2 daughters had an uneventful and healthy upbringing under the care of D1’s ex-wife.  D1 supported them financially. Mitigation letter of D1 and officer from the Hong Kong Christian Kun Sun Association were submitted.

13.  In mitigation, Ms Tse submitted that D1 committed the present offence purely out of greed.  He intended to sell the Missing Properties in return for money to pay for living expenses.  D1 is very remorseful during this time in prison and is very ashamed to face his daughters.

14.  Ms Tse further submitted that D1 understood that custodial sentence would be inevitable.  D1 invited the court to adopt a starting point of 12 months in relation to the charge, as the most valuable items in the Missing Properties were the spirits therein with an estimated value of HK$40,000, and 30 out of 40 were recovered.  (HKSAR v Raman Kumar CACC 324/ 2017 para 8).  Although it cannot be denied that D1 does not have an unblemished criminal record, D1 asked the court to exercise leniency without enhancing the sentence.

SENTENCE

15.  The maximum penalty for handling stolen goods is 14 years’ imprisonment. There is no sentencing tariff for this offence.  The usual sentence is between 2 and 4 years. (See HKSAR v Poon Yiu Fai (潘耀輝)  CACC 36/2011 para 18)[2].

16.  In R v Bernard Webbe & Others [2002] 1 Cr App R (S)  22 the Court of Appeal identified factors that would be regarded as aggravating.  The nine aggravating factors identified in Webbe are intended to provide assistance to the court in gauging the level of seriousness of the handler’s activities:

(1)  The closeness of the handler to the primary offence (closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal).

(2)  Particular seriousness in the primary offence.

(3)  High value of the goods to the loser, including sentimental value.

(4)  The fact that the goods were the proceeds of a domestic burglary.

(5)  Sophistication in relation to the handling.

(6)  A high level of profit made or expected by the handler.

(7)  The provision by the handler of a regular outlet for stolen goods.

(8)  Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurising addicts to steal in order to pay for their habit.

(9)  As is statutorily provided by s.151(2)  of the Powers of Criminal Courts (Sentencing)  Act 2000, the commissions of an offence while on bail.

17.  Webbe also identified factors that might mitigate the offence: namely, low monetary value of the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, and the fact of voluntary restitution to the victim.  Other factors to be taken into account include personal mitigation, ready cooperation with the police, previous convictions, especially for offences of dishonesty and, as statutorily provided by s 152 of the Powers of Criminal Courts (Sentencing)  Act 2000, a timely plea of guilty.

18.  In HKSAR v Xiao Wei [2003] 3 HKLRD 1063, a 21-year-old male from Mainland China, handled stolen goods by pawning a stolen watch in Mongkok for $3,500, only six hours after the domestic burglary during which the watch was stolen.  The Court of Appeal held a starting point of 18 months imprisonment (before enhancement)  was more appropriate.

19.  In HKSAR v Raman Kumar, the authority which was cited by the defence, the concerned stolen property was a mobile telephone valued at $5,500. The Court of Appeal confirmed that it was appropriate to adopt a starting point of 12 months imprisonment.  In this case, however, the total sum of the value of goods was $53,500.

20.  In the present case of D1, the concerned stolen goods were 40 bottles of liquor worth HK40,000; 150 disc worth HK$7,500; legal tender coins in the sum of around HK$4,000; a set of commemorative stamps worth HK$2,000; and 1 vinyl record player.  Though 30 out of 40 bottles of liquor were recovered, the remainder of the Missing Items could not be found.  It also has to be noted that the Flat was used mainly to store the belongings of PW1’s late mother.  The consideration of the value of the goods may also include its sentimental value to the owner.  Nevertheless, I bear in mind that the value of the property assessed is only one of the factors that go towards a determination of the seriousness of the handling (See HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360 para 65).

21.  As put forward by the defence in mitigation, D1 intended to sell the Missing Properties in return for money.  Though it was his intention that the money used was for living expenses, I have to consider the level of profit made or expected by the handler (see the 6^th factor of Webbe). Also, according to the facts of the case, the location of Storeroom 1 was in the proximity of the Flat geographically.

22.  Taking into account of the nature of the offence that D1 was facing, the facts of the case admitted, the background of D1, the mitigation submitted by the defence, relevant authorities and that he is a man with previous convictions for dishonesty, I adopt a starting point of 15 months imprisonment, after one-third discount upon D1’s guilty plea, the sentence is 10 months’ imprisonment.

23.  There is no other mitigating factor which justifies a further reduction of sentence.

CONCLUSION

24.  The sentence of D1 is 10 months’ imprisonment.