HKSAR v. WONG Ngai-pan (also known as WONG Ngai-pun)

DCCC 735/2019

[2021] HKDC 86

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 735 OF 2019

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REASONS FOR SENTENCE

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Procedural History

This case has 5 defendants and 14 charges. They pleaded guilty to their respective charges on separate occasions.

2.  D3 first pleaded guilty to Charges 7 and 8 and was sentenced by Deputy Judge Cheang on 4 November 2019.

3.  D4 pleaded guilty to Charge 5 and was sentenced by Judge Lin on 12 December 2019.

4.  On 30 September 2020, D2 pleaded guilty to Charges 1, 7, 8, 11 and 12; whereas D5, Charges 4, 6, 10 and 11.  D1 also pleaded guilty to Charges 1, 2, 3, 7, 8, 13 and 14.  They were sentenced by Judge Dufton on the same day.  D1 pleaded not guilty to Charges 9, 11 and 12.  His trial for those 3 charges was fixed for 18 January 2021 with 4 days reserved.

5.  On 19 January 2021, D1 pleaded guilty to Charges 9 and 12 before me.  The prosecution applied to leave Charge 11 in the court file; not to be proceeded against D1 without leave of court.  I granted the application.  I will sentence him now.

Summary of Facts

6.  Gentle Enterprises Limited ("GEL") engaged in the sale of card printers which could be used for making credit cards and Home Return Permits.  In January 2019, GEL received an order from a purported purchaser ("the Order") through various means of communication.

7.  On 29 January 2019, 2 males went to GEL's office in Sheung Wan.  One of them presented a cheque for the sum of $40,680 ("the Cheque") to its manager Mr. Lee (PW13) as purported payment for the Order.  The 2 males then took away a printer, a roll of colour ribbon, a roll of clear RT file, a card kit, a box of PVC white cards, a PVC card embosser, a hot stamping machine and 2 rolls of stamping foil (collectively "the Goods").

8.  The Cheque could not be cleared for payment.  It appears to have been issued by Kwok Chor-chung.  GEL reported the matter to the Police.   Mr. Kwok confirmed that he did not issue the Cheque.  The Goods thus became stolen properties.

9.  CCTV footage revealed that on 29 January 2019, D1 took over the Goods from a male, and moved them to Room No.27, Flat 2012, Rear Portion, Wah Fat Industrial Building, Nos.10-14 Kung Yip Street, Kwai Chung ("the Room").  Police subsequently found in D2's mobile phone a video clip, which captured D1 sitting in the Room next to a printer.  PW13 confirmed that the printer as seen in the video clip was an item amongst the Goods.  This is Charge 9.

10.  On 19 June 2018, Mr. Yu Chun-kong (PW5) lost his wallet which contained his HKID card, driving licence, Home Return Permit, a Bank of China ATM card and credit cards.  He alerted the Police.

11.  On 2 September 2018, someone logged onto PW5's MPF account ("the MPF Account") with Manulife (International) Limited ("Manulife") and changed the contact email address.  On 10 October 2018, someone logged onto the MPF Account again and changed the correspondence address ("the New Address").  On 23 January 2019, someone sent a set of documents to Manulife by post to make an application, purportedly by PW5, to obtain payment of MPF accrued benefits on the basis of permanent departure from Hong Kong.

12.  Also on 23 January 2019, someone went to a branch of Chong Hing Bank situated at Cheung Fat Plaza, Tsing Yi to open a bank account using PW5's HKID card.  A bank account (No.287-20-608406-7) in PW5's name ("the Bank Account") was opened.

13.  In mid-February 2019, Manulife sent a cheque in the sum of $354,648 to the New Address.  On 18 February 2019, someone deposited the same cheque into the Bank Account.

14.  About 3:47 p.m. on 19 February 2019, D2 used an ATM card issued to PW5 to withdraw $10,000 cash from the Bank Account via an ATM located at a branch of Standard Chartered Bank situated at Ground Floor, Effort Industrial Building, Nos.2-8 Kung Yip Street, Kwai Chung.  CCTV footage captured D1 standing outside the bank entrance together with several unknown males.  This is Charge 12.

15.  D1, D2 and D3 were arrested in the same evening.  The Police recovered PW5's driving licence, Home Return Permit and Bank of China ATM card, but his HKID card was not found.

16.  PW5 confirmed that he did not:  (i) change the contact email of the MPF Account; (ii) change the correspondence address of the MPF Account; (iii) apply to obtain the MPF accrued benefits; and (iv) open an account with Chong Hing Bank.

17.  In his video recorded interview conducted from 2230 to 2310 hours on 20 February 2019, D1 admitted that he and D2 rented the Room.  D1 signed the tenancy agreement.  The landlord gave 2 key cards to D2 and D2 gave one to D1, which was found in D1's wallet. Regarding Charge 9, D1 confirmed the statement he made at the time of arrest "Mr. Fung asked me to move the goods (note: which were stolen goods)."  He also admitted that he received $500 as a reward.  D1 identified himself moving a carton box in the CCTV footage.  Regarding Charge 12, D1 claimed that "Kwong Jai" gave D2 an ATM card and asked her to withdraw $10,000 from the Standard Chartered Bank.  D1 waited outside the entrance.

18.  D1 now admits that he knew or believed that the Goods were stolen properties and dishonestly received them.  He also admits that he and D2 acted in concert in stealing $10,000 cash, property belonging to PW5.

Mitigation & Sentence

19.  D1 is 30 and divorced.  He has 9 conviction records involving a total of 16 offences, 8 of which were theft-related. Defence counsel Mr. Sio informed me that D1 has 2 daughters (aged 6 and 9) with his ex-wife.

20.  In mitigation, Mr. Sio submitted that in Charge 9, D1 merely carried a box within the building at which the Room was located.  In relation to Charge 12, Mr. Sio invited me to adopt the sentence imposed on D2 by Judge Dufton.  He submitted that D1's role in Charge 12 cannot be more serious than D2's.  Mitigation letters were also placed before me; their contents are duly noted.

21.  When determining the starting point for Charge 9, I have borne in mind the sentencing principles laid down by the English Court of Appeal in R v Webbe (Bernard) [2002] 1 Cr App R (S) 22(which were adopted and applied by the Court of Appeal in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360). Mr. Sio submitted that only 1 aggravating factor exists as far as D1 is concerned (namely particular seriousness in the primary offence).

22.  The value of the Goods was about $40,000, which is not an insignificant sum. On the same day when the Goods were obtained in Sheung Wan, D1 was seen moving them later on in Kwai Chung. Based on the Summary of Facts[1], the primary offence, namely "Obtaining property by deception", would attract a starting point of 12 to 15 months' imprisonment.

23.  It appears that D1's role in Charge 9 was moving the Goods within the building at which the Room was located. I adopt a starting point of 10 months' imprisonment. Counsel for both sides agreed that I should treat D1 as having pleaded guilty on the 1^st day of his trial. Hence, I will grant him a 20% discount[2], reducing the sentence to 8 months. I sentence D1 to 8 months' imprisonment for this charge.

24.  Regarding Charge 12, I agree with the sentence imposed on D2 by Judge Dufton. I too adopt a starting point of 6 months' imprisonment. With a 20% discount for the guilty plea, the sentence is reduced to 20 weeks[3]. I sentence D1 to 20 weeks' imprisonment for this charge.

25.  Charges 9 and 12 are separate and distinct. Bearing in mind the totality principle, I order 8 weeks in Charge 12 to run consecutive to Charge 9, arriving at a total prison term of 8 months and 8 weeks.

26.  D1 received a total prison term of 40 months for 7 other charges in this case. I have read the Reasons for Sentence by Judge Dufton. The facts in those 7 charges do not overlap with Charges 9 or 12.

27.  Bearing in mind the nature and criminality of Charges 9 and 12, I consider it just and appropriate to add another 6 months to the current overall sentence serving by D1. Hence, I order 6 months in Charges 9 and 12 to run consecutive to Charges 1, 2, 3, 7, 8, 13 and 14. In other words, D1's total prison term for Charges 1, 2, 3, 7, 8, 9, 12, 13 and 14 is 46 months.