HKSAR v. ZUNIGA ELVIN RAMON L

DCCC 20 & 640/2023 (Consolidated)

[2023] HKDC 1308

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 20 AND 640 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

A. Charge and facts

1.  The 1^st defendant (D1)  pleaded guilty to 1 charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  The particulars of offence are that D1, on 21 March 2022 in Hong Kong, dishonestly undertook or assisted in the removal, disposal or realization of certain stolen goods, namely one diamond ring, property belonging to Chan Tsz Ting (PW1), by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

2.  D1 admitted the following facts.  On 21 March 2022, PW1 put up a diamond ring (“the Ring”)  for sale on Carousell for HK$37,500 and was soon contacted by a purported buyer.  It was agreed that they would exchange the Ring on the same day at 1300 hours in To Kwa Wan, and the buyer would make a bank transfer to PW1’s sister, Chan Wan Yuen, Miu (PW2).

3.  At the appointed time and place, PW1 met a woman who claimed to be the buyer and handed the Ring to her after confirming with PW2 the receipt of HK$37,500 through bank transfer.

4.  On the same day at around 1450 hours, PW2 was informed by the bank that a HK$37,500 cheque deposited into her account was dishonoured.  Meanwhile PW1 lost contact with the buyer.

5.  On the same day at around 1502 hours, D1 sold the Ring to a dealership called “Top Lucky Gold” for HK$16,000 and was captured by the CCTV thereat.

6.  On 21 July 2022 at around 1859 hours, DPC10877 arrested D1 for conspiracy to defraud.

7.  On 22 July 2022 in a video-recorded interview, D1 stated the followings under caution:-

(a)  He identified himself from the screenshots of the CCTV footages taken on 21 March 2022, and said he was selling a diamond ring at the time.

(b)  He was given items like watches or jewelleries by unknown persons at game centres who asked him to sell them at pawnshops or jewellery shops. D1 would receive HK$1,000 cash for each sale. He did not know or ask about the owners of the items sold.

8.  On 21 March 2022 in Hong Kong, D1 dishonestly undertook or assisted in the removal, disposal or realization of certain stolen goods, namely the Ring, which was property belonging to PW1, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

B. Criminal record

9.  D1 committed 10 cases before this case, one of which was theft in 2009 and he was sentenced to 120 hours’ community service order.

10.  He committed the present case whilst on police bail for 2 cases.  One concerns obtaining property by deception and he was suspected of selling stolen property.  The other concerns conspiracy to defraud and he was suspected of holding a bank account that involved suspicious transactions.  However, the police have only questioned him and have not charged or made any allegation against him.

C. Mitigation

11.  D1 is now aged 59, was educated to Form 3, and he lived with his parents aged 83 and 79 and his son aged 29.  From 2008 to 2016, D1 was a restaurant manager with a monthly salary of HK$33,000.  The Defence submitted mitigating letters of D1 and his sister, and medical documents of his parents.

12.  The Defence referred to R v Chan Wing Kwan and Another CACC121/1985, HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360, HKSAR v Fan Chi Wai CACC 343/2015 and HKSAR v Raman Kumar [2018] HKCA 122.  The Defence submitted that the normal starting point for cases of this kind is 2 odd years’ imprisonment.

13.  The Defence argued that D1’s sentence should not be enhanced by reason of his committing this case whilst on police bail for 2 other cases because no charge has been laid on and no allegation has been made against him in those cases.  They further submitted that there is no aggravating factor in the instant case.

D. Prosecution’s reply

14.  The Prosecution (P)  agreed that the court may consider the cases cited by the Defence.

15.  But they argued that D1’s sentence should be enhanced on the basis that he committed this case whilst on police bail for other cases and they relied on HKSAR v Wong Yun Fat [2017] 4 HKLRD 59 which held:- [1]

“It is clear from the authorities that even if the bail is only police bail the fact that the bailed person committed an offence whilst on bail is still to be regarded as an aggravating factor. The issue is not whether the sentence should be enhanced but, rather, by how much it should be enhanced.”

E. Sentence

16.  For the starting point, I have considered the above authorities, including Fan Chi Wai in which the defendant was sentenced to 30 months’ imprisonment after trial for handling a stolen motorcycle worth HK$40,000.

17.  Given the circumstances of this case, a starting point of 27 months’ imprisonment is appropriate.

18.  In respect of D1’s commission of the offence whilst on police bail for 2 other cases, having carefully considered parties’ submission, I rule that it is an aggravating factor in view of the above principle in Wong Yun Fat. Thus, the starting point is enhanced by 3 months to 30 months.

19.  There is no other aggravating factor in this case.

20.  The only mitigating factor is D1’s guilty plea.  Thus, after deducting 1/3, I sentence him to 20 months’ imprisonment.