HKSAR v. SIAW RIRI

DCCC 79/2018

[2018] HKDC 1067

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 79 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “handling stolen goods”, contrary to section 24 of the Theft Ordinance, Cap. 210 (charge 2).

Facts

2.  At around 1:14 a.m. on 8 November 2017, Mr Ng Man Wah was walking in Yuen Long area as particularized in charge 2.  He heard someone running towards him from behind.  He turned around and saw Leung Ho Hin ("Leung") and Wong Chun Hin Ronald ("Wong"). Leung was holding a 1.5 feet long silver object.  Mr Ng thought that it was a knife. He was scared and tumbled onto the ground.  Leung demanded Mr Ng to pass him his watch (“the Watch”). Mr Ng did so.  Leung then pointed to Mr Ng’s waist. Mr Ng took out cash of about HK$5,000 and passed it to Leung.  Leung and Wong fled thereafter.  The case was reported.  The value of the Watch was HK$163,000.

3.  At around 4:00 p.m. on 8 November 2017, at a pawnshop in Kwai Fong, the defendant pawned the Watch for HK$133,000.  Upon search of the defendant's residence, the pawnshop tickets of the Watch were found.  Mr Ng identified the Watch as his.

4.  The defendant was arrested. Under caution, she admitted that Leung, her son, had asked her to pawn the Watch for HK$60,000.  The defendant pawned the Watch for HK$133,000.  She gave HK$47,000 to Leung and Leung's friend.  She deposited the remaining amount into her bank account.

5.  In subsequent video-recorded interview, the defendant admitted that:

(a) Leung told the defendant that Leung lent HK$20,000 to a friend who then gave him the Watch to settle the debt. If the pawnshop offered HK$60,000, the defendant should pawn the Watch. The defendant suspected how Leung could have HK$20,000 to lend to a friend.

(b) At around 4:00 p.m. on 8 November 2017, she met Leung outside the pawnshop and received the Watch from Leung.

(c) She pawned the Watch for HK$133,000. She suspected why the pawnshop offered so much, considering that Leung told her that the Watch was to settle a debt of HK$20,000.

(d) She gave a total of HK$47,000 to Leung. She deposited the remaining amount into her bank account. The pawnshop tickets seized were in relation to the Watch.

(e) She knew that Leung was unemployed and had been released from Hei Ling Chau Addiction Treatment Centre on 16 October 2017.

6.  The contents of the defendant’s mobile phone were examined.  In the WhatsApp conversation, Leung told the defendant to pawn the Watch if they offered HK$60,000. In a WhatsApp audio message, the defendant told Leung that she was scared as she had used her name and details.

Mitigation

7.  The defendant is aged 45, married with two sons aged 18 and 15 respectively.  She was educated up to Form 5 and has been a housewife since giving birth of the elder son.  She has a clear record.  Her husband is a driver earning HK$22,000 per month and is the sole breadwinner of the family.  Apart from taking care of her own family, the defendant also needs to take care of her 73-year-old father who suffers from several illnesses.

8.  In mitigation, it was revealed that the defendant’s two sons are suffering from ADHD with regular follow up treatment.  Her elder son was also diagnosed to suffer from ODD.  Coupled with the defendant’s lack of parenting skills, the elder son became rebellious and began to mingle with bad peers in 2012.  Hoping to help the elder son in getting to the right track, the defendant sent the son to Christian Zheng Sheng College.  Unfortunately, an incident happened to the elder son while he was in the college.  As a result, the elder son became more and more rebellious.  And finally, he ended up taking drugs and was sentenced to Hei Ling Chau Addiction Treatment Centre.  The defendant felt very sorry for her son.  On the offence date, when the son approached the defendant and requested her to pawn a watch for him, she agreed to help him due to her love for him.  It was submitted that the defendant only had suspicion about the watch when she learnt the watch could be pawned for HK$133,000 at the pawnshop.  And it was at that point of time that she made the wrong judgment and decided to help the son in any event.  After she had pawned the watch, she met the elder son and his friend.  She had no option but to pass HK$30,000 to the friend and managed to bargain with the elder son so that she could keep the money for him.  The defendant did not know the watch was the stolen property in a robbery committed by the elder son.     

9.  It was further submitted that the defendant indicated her intention to plead guilty before the first day of trial and the court was urged to grant her a discount of up to 25%.  The defendant had been remanded for 111 days and she needs to take care of her younger son. Defence counsel referred to 香港特別行政區訴張志強, HCMA 382/2013 and urged the court to adopt a low starting point in this case. 

Sentence

10.  There is no sentencing tariff for the offence of handling stolen goods.  The reason is that the circumstances under which a ‘handling’ offence is committed can vary so much that it is inappropriate to set down any sentencing guidelines (see HKSAR v Yau Pak Chun, CACC 211/ 2006). 

11.  In HKSAR v Xiao Wei [2003] 3 HKLRD 1063 which involved a case of handling of stolen goods, the aggravating factors suggested by the English authority Bernard Webbe were discussed.  Without going into details of the aggravating factors, I note that aggravating factors 2 (i.e. particular seriousness in the primary offence, namely the robbery offence committed by the defendant’s elder son and another person) and 3 (i.e. high value of the goods stolen) are applicable to the present case.  Defence counsel agreed with my observation but submitted that those aggravating factors were set off by the mitigating factors in this case.  I accept the defendant had no knowledge of the circumstances where the watch was stolen.

12.  Taking into consideration the circumstances of the present case and the mitigation, I consider the appropriate starting point to be 12 months’ imprisonment.

13.  According to the case of HKSAR v Ngo Van Nam & Anor [2016] 5 HKLRD 1, a defendant who indicated his guilty plea to the prosecution after the fixing of trial dates and before the first day of trial will be granted a discount in the region of 20% to 25%.  In the circumstances of this case, I am prepared to grant the defendant a 25% discount which is the most generous discount possible in the circumstances of this case.  As said, I adopt a starting point of 12 months and reduce it by 25% to 9 months for the defendant’s guilty plea.

14.  Regarding the restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249).  As the defendant has already paid the amount of HK$103,000 to court as compensation, she is entitled to a discount of 3 months from her sentence.  The defendant is therefore sentenced to 6 months’ imprisonment. 

15.  Upon the prosecution’s application, the compensation of HK$103,000 is to be paid out to the owner of the pawnshop Mr Ng Chung Man.