HKSAR v. YU WAI-KI

DCCC 581/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 581 OF 2009

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REASONS FOR SENTENCE

1.  The defendants plead guilty to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Chapter 210 (charge 1); one charge of burglary, contrary to section 11 of the Theft Ordinance (charge 2) and one charge of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Chapter 200 (charge 3). 

Charge 2 - Burglary

2.  Full particulars of the offences are set out in the admitted facts.  Briefly around 11.30 a.m. on the 20th April this year the defendant in possession of a crowbar was seen entering Flat 7, 10th Floor, Caroline Hill Mansions.  20 minutes later the police intercepted the defendant when he came out of the flat in possession of the property he had stolen.

3.  The lock of the wooden door to Flat 7 had been broken and the flat ransacked.  The defendant stole one necklace, eight rings, four bracelets, five brooches, six bank books, two Hong Kong driving licences, a mobile phone and cash in the sum of HK$1,428.70 and a small amount of Renminbi, all of which has been recovered. 

Charge 3 – Possession of a false instrument

4.  The defendant was also found in possession of a forged police warrant card in the name of CHAN Chi-hung.  In a video interview the defendant admitted he bought the card in Shenzen with the intention of using the card to facilitate his access to buildings so as to commit crime. 

Charge 1 – Handling stolen goods

5.  The defendant was the registered owner of private car MX 7119, which was parked outside Caroline Hill Mansions prior to the burglary.  Upon search of the car the police found a portable game machine with holder and four sets of games, a cable earphone, and HK$795 worth of coins contained in a metal box, all of which had been stolen in a burglary of domestic premises on the 11th Floor, No. 25 Haven Street in Happy Valley two weeks earlier.    

Burglary

6.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is three years imprisonment. Where the defendant has committed more than one offence of a similar nature at different times a higher sentence than if there had been only one offence is appropriate (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 20).

7.  The defendant is properly to be regarded as a persistent offender having twenty-three convictions, eleven relating to dishonesty, five of which are for burglary (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).  I am satisfied the proper starting point after trial for the burglary is 3 years imprisonment which starting point is increased by 6 months imprisonment to 3 years and 6 months imprisonment by reason of the defendant being a persistent offender

Handling Stolen Goods

8.  There are no guidelines for sentence in cases of handling stolen goods.  Assistance can however be obtained as to the factors to take into account from the case of R v Webbe [2002] 1 Cr App R (S) 82 as applied in HKSAR v XIAO Wei [2004] 1 HKC 520 and HKSAR v YAU Pak-chun CACC 211/2006 (English digest in the Criminal Appeals Bulletin, January 2006).   Taking into account the nature and value of the goods I am satisfied the proper starting point after trial is 1 year and 3 months imprisonment.

Possessing a false instrument

9.  There are no guidelines or sentence authorities relating to possession of forged police warrant cards.  This is a serious offence for the use of the card would mean a false representation the holder was a police officer therefore making it more likely the holder would be able to gain access to buildings in order to steal.  I am satisfied this is akin to going equipped to steal and that the proper starting point after trial is 12 months imprisonment.

10. In passing sentence I have carefully considered everything said by Mr Chu together with the letters submitted on behalf of the defendant, in particular that the defendant committed the offences as he was in need of money because his wife was pregnant. 

11. The burglary and handling charges are separate and distinct offences for which consecutive sentences are appropriate.  The possession of the forged police warrant card, whilst in the defendant’s possession at the time of the burglary was possessed for use in committing crime.  Again subject to totality a consecutive sentence is appropriate. 

12. In considering totality of sentence to be served I take into account that the starting point of the burglary has already been increased by reason of the defendant being a persistent offender; the burglary was clearly planned as shown by the defendant taking with him crowbars and the flat was ransacked.  I am satisfied an overall starting point of 4 years imprisonment is appropriate for the three charges. 

13. Giving the defendant full credit for his pleas of guilty he is sentenced as follows:

Charge 2 – burglary - 2 years and 4 months imprisonment;

Charge 1 – handling stolen goods - 10 months imprisonment

2 months consecutive and 8 months concurrent to charge 2; and

Charge 3 – possessing a false instrument - 8months imprisonment

2 months consecutive and 6 months concurrent to charges 1 & 2.

This makes a total sentence of 2 years and 8 months imprisonment, which I am satisfied properly reflects the defendant’s criminality on the three charges.