HKSAR v. GURSEWAK SINGH AND OTHERS

DCCC 595 & 905/2017 (Consolidated)

[2018] HKDC 1170

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 595 & 905 OF 2017

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Reasons for Sentence

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The Charge

1.  D1 is convicted of a charge of handling stolen property after trial.

The Prosecution case proved

2.  PW1 Dholwani was a mobile phone merchant.  He had two suitcases of business money in cash brought to him from India by a female XUAN.  His driver Sunny picked her up together with the two suitcases at the Hong Kong airport.  They met up with PW1 at the ground pavement of PW1’s residence at Man Yue Street, Hung Hom.  PW1 unlocked the silver-coloured suitcase to take a look at the contents.  He did not open the red suitcase although it was not locked.  After unloading the two suitcases on to the ground, he took possession of them.  Sunny drove XUAN away in the car.  PW1 was soon attacked by some hard object held by one male in a group of 5 – 6 Indian/Pakistani males.  He tried to hold on to the silver-coloured suitcase as he lay face-down on the ground as they assaulted him by fists and kicks.  They took hold of both suitcases and boarded a getaway car.   

3.  He got onto his feet and ran up.  At the moment the car stopped for the red traffic light, he used his mobile phone to take a picture of the car and its rear plate “TA 3590” (P312).  He called the police. The police arrived in a police van after about 4 minutes.  He boarded the police van and told the officers on board that there was a GPS app installed in the silver-coloured suitcase connected to his mobile phone and activated for tracking the whereabouts of the silver-coloured suitcase.  He also showed them a photo of the suitcases on his mobile phone.  Following the GPS signal, the police van stopped in Tai Kok Tsui and the police walked him to a red suitcase on the pavement outside a building.  There were already police officers present.  He recognized the red suitcase as his robbed property.  Later in the police station he took a thorough look at the contents, which comprised wads of banknotes belonging to him[1]. 

4.  As regards the silver-coloured suitcase, the police walked him up to the 6^th floor of the same building. Concealed from direct sight by an abandoned bed mattress on the staircase was the silver-coloured suitcase.  He recognized it as his own.  Later, in the police station he had a thorough look into the contents in the police station and found cash which belonged to him. 

5.  PW2 Jacky MAK was the driver of a car.  He stopped under Fat Kwong Street flyover and saw several South East Asian males hitting PW1 on the ground.  One of them had a knife.  They boarded a car “TA 3590” in front of him and left by turning right.  One of them got off the car to run when TA 3590 was blocked by a taxi at a red traffic light.  He took a photo of the car plate and reported the incident to the police.  It was 0758h according to the CCTV on the street.  

6.  PW3 LAM was on the pavement when he saw several South East Asian males hitting PW1 on the ground.  One of them had a knife. They forcefully took 2 suitcases from PW1, 1 of them silver-coloured, held by PW1 on the ground upon being attacked by them.  The attackers took the 2 suitcases and boarded a getaway car “TA 3590”. 

7.  PW4 was the exhibit officer.  He arrived at ground floor of 16 – 18 Larch Street and saw the red suitcase guarded by a police officer.  PW1 recognised it as his own.  At the back staircase between 6/F and 7/F behind a mattress was the silver-coloured suitcase guarded by police officers. 

8.  PW5 WPC 6893 responded to police console instructions to arrive at the scene of PW1’s reported robbery at ground floor of 31 Man Yue Street.  At 0805h she arrived with colleagues in a police van and got off to get instructions from PW1.  About 5 minutes later, she boarded the police van and proceeded towards KCR Station Hung Hom as indicated by PW1’s mobile phone connected to the GPS tracking device installed in the silver-coloured suitcase.  When she got back to the police van with PW1, she looked at the GPS signal and instructed the driver and other EU cars to go to the location to assist her.  Exh. P315 was the sketch of the route from Location 1 to Location 7.  She ended up in the vicinity of 16 – 18 Larch Street where the GPS signal became static.  Some police officers were there already. She took PW1 to identify the red suitcase on the pavement at ground floor of 16 – 18 Larch Street. 

9.  PW6 PC13607 was sitting at the second row on the right side of EU23 police van.  His car arrived at the junction of Larch Street and Fir Street when he saw 3 – 4 Indian/Pakistani males in front of him through the windscreen.  One of them was in a checked shirt and blue jeans, being the last walking in the group (later confirmed as D1).  D1 was towing a red suitcase.  The lighting condition was sufficient, there was no obstacle or obstruction and the traffic was light.  When he alighted, the group was about 20 metres on his right hand side.  He regarded them as a group as they were only 1 to 2 paces apart from one another when pedestrians were sparse at that time.  If they were not acquainted or not in a group, they would not be so close together.  The group looked back at him and made eye contact with him. D1 immediately abandoned the red suitcase there and ran for his life towards Tong Mi Road.  The others in the group ran as well.  He ran after D1 in particular.  Maintaining a distance of 5 – 7 metres in the chase, he had not lost sight of D1 until he stopped D1 at 28 Bute Street near Canton Road.  After subduing D1 with the assistance of other colleagues, he arrested and handcuffed D1.  It was 5 minutes into the chase.  He marks on Exh. P316 EU23’s stopping position, the group’s initial position and the route of his chase after D1. 

10.  PW7 Sgt 54733 was the officer in charge of EU23. He made similar observations of the 3 – 4 males at Larch Street as PW6, who shouted that someone was towing a suitcase.  He was the last one to chase the group as he had to go round the front of his police vehicle when alighting. 

11.  PW8 PC1359 alighted from EU23 at the junction of Larch Street and Fir Street when PW6 shouted that a male was towing a suitcase.  He saw 4 Indian/Pakistani males in a group.  The one walking last was towing a red suitcase.  He alighted from the vehicle to approach the group.  When the group saw him, the group began to run.  That male put down the red suitcase.  He chased after that male and another in the group as these two split themselves from the group soon.  Soon he focused on chasing that male (not another male) into an alley at 66 Tong Mi Road.  As he saw that PW6 was also chasing that male (ie D1) much closer, he (PW8) returned to the spot of the red suitcase.  A few minutes later, a police officer in reinforcement came.  PW8 inspected the suitcase and its contents. PW5 arrived in EU36 with PW1.   PW1 inspected the suitcase and its contents.  He (PW8) handed over the suitcase and the scene to another police officer. 

12.  He had looked at each of the 4 men in the group for 2 – 3 seconds at first glance.  There was another look at them respectively for 1 – 2 seconds.  He estimates to have eye contact with D2 for several times, 8 – 9 seconds in total.

13.  CCTV Clips 26 and 27 showed there were 3 – 4 males running together when being chased by PW6, 7 and 8 at Larch Street. 

14.  PW9 PC10618 arrived at 16 – 18 Larch Street and saw the red suitcase on the pavement guarded by some police officers.  There was no elevator in the building.  He walked up the building to try to find the silver-coloured suitcase.  Half way between the 6^th floor and the 7^th floor, he saw the silver-coloured suitcase behind a mattress. 

The Verdict

15.  The prosecution has proved the case against D1 beyond reasonable doubt in respect of the red suitcase.

Mitigation

16.  D1 is now 27 years old.  He had 2 drug possession records, nothing similar to the present offence.  His peasant family, comprising his parents and a younger brother are in Punjab, India.  At all material times, he is and was a non-refoulement claimant in Hong Kong financially aided by International Social Services. 

17.  Mr. Sherry submits that D1’s role was minor in the offence and had no knowledge of the precise nature of the contents of the red suitcase.  A sentence on the low side, say 2 years, is warranted.   

Sentencing considerations

18.  Mr. Sherry refers to 5 cases.  The first one is The Queen v Chan Wing-kwan CACC 121/1985.  The defendant kept a large part of the stolen property, high-end fashion furs, in her residence a few days after the predicate burglary of a garment factory.  The factory suffered a loss to the value of over $1,000,000.   Five months after the burglary, she also let a potential view part of the stolen property carried in her car.  The Court of Appeal reviews a number of cases of handling stolen goods and observes that the range of sentence is between 2 and 4 years and the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the predicate burglary.  The sentence of 4 ½ years after trial was reduced to 2 years.   

19.  The second one is HKSAR v Xiao Wei CACC 225/2003.  The defendant was instructed to, and did, pawn a Rolex watch valued at $11,200 less than 6 hours after it was lost from a burglary.  He was given $1,000 as reward.  He had previous similar records.  A starting point of 4 years after trial was reduced on appeal to 27 months, comprising 18 months as the initial starting point aggravated by his similar records to the extent of 9 months.    The Hong Kong Court of Appeal adopted the observation of the English Court of Appeal in R v Bernard Webbe [2001] 1 Cr App R (S) 22 on the factors relevant to the sentencing of handler of stolen property as follows:

1. The closeness of the handler to the primary offence. (We add that 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 pressurizing addicts to steal in order to pay for their habit.

9. The commission of an offence while on bail.

The English Court of Appeal also identified factors that might mitigate the offence: (1) the offence was a one-off offence committed by an otherwise honest defendant; (2) little or no benefit to the defendant; and (3) voluntary restitution to the victim. Personal mitigating factors such as (1) ready co-operation with the police, and (2) timely plea should also be considered.

20.  The third one is HKSAR v Poon Yiu Fai CACC 36/2011.  The defendant pawned a Rolex watch for $14,000 only 6 days after it was lost in a burglary of an apartment.  The Court of Appeal agreed with the trial judge that the property value had to be taken into account in the sentence.  The sentence of 2 years and 3 months after trial was affirmed on appeal. 

21.  The fourth one is HKSAR v Sandagdorj Altankhuyag and Another CACC 45/2013. The Court of Appeal considers that it would be an aggravating factor in the sentence of a non-refoulement claimant who on the one hand enjoyed the hospitality of Hong Kong but on the other hand committed a crime, such as theft in this case, that affected the community at large or had a significant impact on Hong Kong’s reputation. 

22.  The fifth one is HKSAR v NAYAB Amin and 3 Others HCCC 115/2017.  D1 – D3 faced a robbery charge where D4 faced a handling stolen property charge.  A head-bashing robbery on the street by D1 – D3 in a group of seven, using a hard object from behind the victim, resulted in the victim being injured and robbed of a quantity of diamonds worth over US$200,000.  After 8 weeks, a meeting was set up by the robbers in a hotel room for a potential buyer, who was actually an undercover police officer.  D4 handed over a rucksack which contained half of the lost diamonds to D1 when D1 went out of the room to get the diamonds for the potential buyer’s viewing.  The defendants were arrested by the police in the hotel.  After increasing the sentence of the robbers by 1 year and the handler by 6 months due to their non-refoulement claimant status, the sentence became 11 years for the robbers and 3 years 6 months for the handler. 

Sentencing D1

23.  The head-bashing robbery involved several males who attacked an unarmed victim with a hard object and fists and kicks after he had fallen.  There was a getaway car getting ready.    The red suitcase contained very substantial amount of cash (USD 104,700 and EURO 50,000 altogether, or, say, over HK$1,300,000). Liquidity of cash was supreme, compared to the furs or the diamonds stolen in the cases cited by Mr. Sherry.   The handling was most efficient as the red suitcase had already been moved to Tai Kok Tsui and handled by D1 so speedily within half an hour after the robbery in Hung Hom.  If not stopped in time, the offence would have caused the victim very substantial loss.  These factual circumstances point to a high sentence.  

24.  D1’s personal circumstance as a non-refoulement claimant committing an offence which affects the security of the community at large is another feature to call for a higher sentence. 

25.  I take a basic starting point of 3 years 6 months due to the factual circumstances and add 6 months due to his personal circumstance.  From the actual starting point of 4 years, I reduce it by 6 months due to the recovery of the red suitcase.   

26.  D1’s sentence is 3 years 6 months.