HKSAR v. CHAN KONG YIU AND OTHERS

DCCC500/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.500 OF 2010

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Reasons for Sentence

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1. There are 4 defendants and 5 charges in this case. D1 pleaded guilty to charges 1 and 2. D2 pleaded not guilty to charge 5. D3 pleaded guilty to charge 1, not guilty to charge 3. D4 pleaded guilty to charge 1, not guilty to charge 4.

2. D1, D3 and D4 admitted to the summary of facts relevant to charge 1 and were duly convicted of the charge. D1 further admitted to the facts relevant to charge 2 and was duly convicted of the charge.

3.  The prosecution offered no further evidence against D2 on charge 5, D3 on charge 3 and D4 on charge 4 and they are each found not guilty of those 3 charges. Charge 5 in relation to D2, charge 3 in relation to D3 and charge 4 in relation to D4 to be kept on file and not to be proceeded with without the leave of the court.

Charge 1: against D1, D3 and D4

4.  This is a charge of Conspiracy to steal, contrary to s.9 of the Theft Ordinance, Cap.210 and ss.159A and 159C of the Crimes Ordinance, Cap.200. Particulars of the charge are that the 3 defendants on an unknown day between December 2009 and 7^th January 2010, both dates inclusive, in Hong Kong conspired together to steal 163 watches, property belonging to Tenshodo.

5.  D1, D3 and D4 pleaded guilty to the charge.

Charge 2: against D1

6.  This is a charge of Handling stolen goods, contrary to s.24(1) and (2) of the Theft Ordinance, Cap.210. Particulars of the charge are that the defendant between 27^th October 2009 and 7th January 2010 both dates inclusive, in Hong Kong, dishonestly undertook or assisted in the retention, removal, disposal or realization of certain stolen goods, namely 4 watches, the property belonging to Ikkodo Watch, Jewellery and Glasses, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

7.  D1 pleaded guilty to charge 2.

Charge 3: against D3

8.  Charge 3 is a charge of handling stolen goods. It is alleged that D3 between 27^th October 2009 and 7^th January 2010 both dates inclusive, in Hong Kong, dishonestly undertook or assisted in the retention, removal, disposal or realization of certain stolen goods, namely 1 watch, the property belonging to Ikkodo Watch, Jewellery and Glasses, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

9.  D3 pleaded not guilty to charge 3.

Charge 4: against D4

10.  Charge 4 is a charge of handling stolen goods. It is alleged that D4 between 27^th October 2009 and 8^th January 2010 both dates inclusive, in Hong Kong, dishonestly undertook or assisted in the retention, removal, disposal or realization of certain stolen goods, namely 4 watches, the property belonging to Ikkodo Watch, Jewellery and Glasses, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

11.  D4 pleaded not guilty to charge 4.

Charge 5: against D2

12.  Charge 5 is a charge of dealing with property known or believed to represent proceeds of an indictable offence, contrary to 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455. Particulars of the offence are that, D2 on or about 7^th January 2010, in Hong Kong, knowing or having reasonable grounds to believe that property, namely a total sum of HK$346,525 and 104 gemstone rings, in whole or in part, directly or indirectly represented the proceeds of an indictable offence, dealt with the said property.

13.  D2 pleaded not guilty to charge 5.

Brief summary of facts

14.  The 3 defendants conspired in Hong Kong to commit burglary in Japan. They flew to Japan, stayed together and went to scout for target shops to burgle. Once they had a target, they proceeded to buy the needed tools which included metal cutter and drills. The shop they eventually burgled was a jewellery shop. 2 of the defendants entered the shop adjacent to the jewellery shop and then drill a hole in the wall the shops share to gain access. Once inside they stole. The stolen proerties were then sent by way of airmail to Hong Kong. The defendants then left Japan and returned to Hong Kong to wait for the loot to arrive.

Previous convictions

15.  D1 has 6 previous convictions, all for burglary. D3 has 12 convictions, with 7 convictions for burglary, the latest being in 2005 when he was sentenced to 1 year 11 months’ imprisonment. D4 has 10 previous convictions, with one for going equipped for stealing and one for handling stolen goods.

Mitigation

16.  Submissions on mitigation were put forward by counsel for the defendants but there are no special mitigating factors other than the defendants’ guilty pleas.

Enhancement of sentence

17.  The prosecution applied for an enhancement of sentence for both charge 1 and 2 on the ground that they are organized crimes involving substantial planning and organization.

Sentence

In relation to D1

Charge 1:

18.  Although the charge that D1 is facing is one of conspiracy to steal, the underlying offence is one of burglary of a non-domestic premises. D1’s counsel Mr. Poon submits that in considering the sentence for charge 1 the court should use the sentence for the underlying offence as reference. This is also the stance of the prosecution. I find that this is indeed the right approach.

19.  Mr. Chan for the prosecution very helpfully drew to my attention the case of HKSAR v Fan Kit Hung, CACC 62/2009 where the Court of Appeal said this:

“8. So far as sentence is concerned, much will depend on the aggravating circumstances of the individual case. However where the facts reveal the offender to be a professional burglar then that is plainly an aggravating factor and, where several offences are also involved, the totality of sentence would, depending on other factors, often reflect a notional starting point of more than 5 years’ imprisonment.

9. Those other factors were illustrated in Cheng Wai Kai by Yeung JA at paragraph 15 where he said :

“ The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences.”

10. To that we would add that where substantial damage is done to the victimised premises, or to things in it, in the course of the burglary then that also will be an aggravating factor.

20.  Of the 7 aggravating factors referred to by the Court of Appeal in that case (including the one in paragraph 10), 6 are present in the case that we are now dealing with.

21.  The burglary is carefully planned and skillfully executed involving the use of heavy instruments or equipment (hydraulic jerk and drill); the offence is committed by 3 people, the offence targets substantial premises and involves substantial properties (watches worth  a total of HKD17,879,812); the offenders are professional burglars and not just opportunists (flying over from Hong Kong to Japan, staying there, scouting out targets, buying tools, sending loot back by airmail); the offender has previous convictions (D1 has 6 previous for burglary, D3 has 6, with 5 related to burglary, D4 has 7 previous with no burglary conviction but with one conviction for Using a document with intent to deceive, one for going equipped for stealing and one for handling stolen goods), in D1 and D3’s case of similar nature, and that there was substantial damage done to the victimized premises, in the nature of the drilling of a hole big enough for them to enter the jewellery shop in order to commit the burglary.

22.  If I may just add to those factors the factor of an international element in this case. The agreement was to burgle premises in Japan, as the facts had shown, making it more difficult and costly for law enforcement agencies in either Hong Kong or Japan to investigate and to apprehend the perpetrators.

23.  Bearing in mind all the circumstances of this case, in particular the aggravating circumstances, I find that in relation to charge 1, using a base starting point of 30 months’ imprisonment, adding to it another 21 months on the basis of 3 extra months for each of the 7 aggravating factors in relation to the underlying burglary, a proper starting point would be that of 51 months’ imprisonment in relation to charge 1 for D1.

24.  I find that there are no mitigating factors other than D1’s guilty plea and will reduce the sentence to that of 34 months’ imprisonment accordingly.

D3 on charge 1:

25.  Counsel for D3 also agreed that the underlying offence of burglary of a non-domestic premises should be used as a reference when sentencing on the conspiracy charge.

26.  In relation to D3, I find as well that there are no mitigating factors but that of his guilty plea. I find that for the same reasons as given above in relation to the aggravating factors involved in the underlying burglary, I will also adopt a starting point of 51 months’ imprisonment, reducing it by one-third in recognition of D3’s plea of guilty, bringing it down to 34 months’ imprisonment.

D4’s charge 1:

27.  D4’s counsel Mr. Wong submitted that the prosecution cannot ask the court to sentence D4 on the basis of the burglary since the actus reas of charge 1 took place in Hong Kong and that the agreement should be the only ground to take into consideration when sentencing. I beg to differ. I find that even if that is the correct approach, the court would still be entitled to take into account the terms of the agreement to steal, the proposed plan to steal, and the court would still have come to the same conclusion that 51 months’ imprisonment is a proper starting point for the offence.

28.  Therefore, for the same reasons given above in relation to D1 and D3, save for the point that D4 does not have a previous conviction of burglary but he is still a repeated offender and does have previous convictions involving stealing and handling, I will also adopt a starting point of 51 months’ imprisonment in relation to D4. I find that there are no mitigating factors other than his plea of guilty and I reduce his sentence to that of 34 months in recognition of that.

29.  In relation to charge 1, therefore, D1, D3 and D4 are each sentenced to 34 months’ imprisonment.

Charge 2:

Sentencing authorities

30.  In relation to the handling charge, while not setting down any guideline sentences, the case of R v Bernard Webbe & Ors (unreported), provide some assistance as to certain aggravating factors which may affect sentencing in handling cases. These were set out in R v Bernard Webbe & Ors (at paragraph 20) 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. As is statutorily provided by section 151(2) of the Powers of Criminal Courts (Sentencing) Act 2000, the commission of an offence while on bail.”

31.  Bearing in mind those considerations, I find that a starting point of 24 months’ imprisonment is appropriate. There are no mitigating factors other than D1’s guilty plea to charge 2 and I will reduce this sentence to that of 16 months’ imprisonment.

Application for enhancement

Charge 1

32.  Having heard Mr. Lo for D3 on the possibility of “double counting” should I enhance the sentence in relation to charge 1 on the basis of ‘related to activities of 2 or more persons associated together for the purpose of committing 2 or more acts and that they involved substantial planning and organization’, and having heard from Mr. Chan for the prosecution very fairly confirming that the court should avoid such double counting, I find that since I had already taken into consideration those 2 factors when dealing with the charge, to enhance the sentence based on those same 2 factors again would be harsh and unfair to the defendants.

33.  Therefore, although I find that the acts of the defendants in charge 1 would have amounted to an organized crime under s.75(4) of the OSCO, it is my decision not to enhance the sentence for the reason I had given above.

Charge 2

34.  In relation to charge 2, I find that the prosecution had not made out their case that the handling itself involved substantial planning and organization. It was just a matter of receiving the watches in the post. Even if it did, the aggravating factors in relation to the handling have also been taken into consideration when I decided on the sentence. I will therefore refuse to enhance the sentence in charge 2.

Case of DCCC 906/ 2010

35.  In relation to D1’s other count of burglary in 906/2010, I find that it was the burglary of a non-domestic premises and adopted a starting point of 30 months’ imprisonment as the starting point, granting the defendant the full 1/3 discount for his guilty plea and reduce this sentence to that of 20 months’ imprisonment.

Totality in relation to D1:

36.  In relation to D1’s charge 1 and 2 in 500/2010, I will order that 8 months of charge 2 be served consecutively to the sentence in charge 1 the rest of charge 2’s sentence to be served concurrently, taking the total to 42 months’ imprisonment.

37.  Bearing in mind the fact that the burglary in 906/2010 was committed in 2003 and was wholly unconnected to the later case, I have heard no submission from D1’s counsel in relation to any delay in prosecution, I will order that the sentence be served wholly consecutively to that of 500/2010, taking the overall total to 62 months’ imprisonment.