HKSAR v. HO WING YIN

DCCC 1120/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1120 OF 2008

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Reasons for Sentence

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The charges

1. The Defendant pleads guilty to the following 9 charges of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap. 210:

The facts

2. On each occasion, he towed the trailer and/or the container(s), as the case may be, with his own tractor to Mainland China through Lok Mau Chau Check Point.  On 20 September 2008, he was arrested whilst committing the 9th offence.  Under caution he admitted that:

(1)  A person “Ah Chong” had instructed him to do so.

(2)  Each time he got RMB￥6,000.  

(3)  He first picked up the trailer somewhere in the New Territories.  

(4)  He then towed the trailer to Shenzhen with his own tractor via the Lok Ma Chau Check Point.  

(5)  After the first 2 occasions of towing, he came to know that they were stolen goods.  

(6)  He made false declarations in the cargo manifests with false serial numbers of the trailer and/or containers to the Customs and Excise. 

3. The police seized the cargo manifests completed and submitted by the Defendant.  Their falsity was confirmed.   

4. The total value of the handled trailers and containers, which were all empty, was $600,000.

The Defendant’s circumstances

5.   He is 50 years of age.  He receives up to F. 5 education.  His parents are living by themselves.  He contributes $3,000 to $4,000 per month to them.  He lives with his wife, children, and grandchildren.  The family relationship is not quite harmonious.  He has to repay $9,000 per month for the re-mortgage of the flat because a customer has disappeared without repayment of a business debt of $1 m.  Since 1977, he became a professional driver of lorry.  In 1999, he bought a tractor and ran his own transportation company. In 2002 he owned 5 tractors and employed 4 drivers.  Since 2007 his business has declined.  At present he owns 3 tractors and a private car.  He has to repay $21,500 per month for the hire purchase of the vehicles.  All in all, he needs $5,000 per day to make both ends meet.     

6. He claims that he committed the present offences because he had to repay for his re-mortgage of the flat and keep his business.  A Mainlander whom he newly came to know talked him into a scheme whereby he would be paid RMB￥2,000 to RMB￥3,000 for each journey towing a trailer to Shenzhen.  That led to be the present offences.     

The principles of sentencing

Handling stolen goods

7. There are no tariff sentences.  Although the Court of Appeal in HKSAR v Yau Pak-chun Cr App 211/2006 regarded sentencing guidelines as not appropriate because the circumstances of offence differed enormously, it shall be highly constructive to refer back to Rose LJ’s speech in the English case of R v Bernard Webbe and Others [2002] 1 Cr App R (S) 82 where he outlined a spectrum of relevant considerations as follows:

[M]onetary value should not in itself be regarded as the determining factor and other factors significantly affecting the seriousness of a case included: the level of sophistication; the origin and ultimate destination of the goods; the impact on the victim; the level of profit; and the precise role of the handler.

Aggravating factors included: closeness to the original offence; a high level of seriousness of the original offence; high value to the loser, including sentimental value; the fact that the goods derived from a domestic burglary; a high degree of sophistication; a high level of profit made, or expected to be made; the provision of a regular outlet for stolen goods; threats of violence or abuse of power; and commission of the offence while on bail.

Mitigating factors included: low monetary value; the fact of a 'one-off' offence by an otherwise honest defendant; little or no benefit or financial gain; and voluntary restitution. 

8. I think these considerations encompass most cases that fall for sentencing.  

Totality principle

9. In R v McKechan [2004] EWCA Crim 212, it was said that totality was a “principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending”. 

10. In HKSAR v Zhen Futing Cr App 509/2003, it was said that the court should fix appropriate sentences for each offence, then consider the application of the totality principle, and, in particular, whether any adjustment needs to be made to any of the sentences to achieve the total effective sentence which is consistent with the application of the principle.    

The sentence I pass

11. It was not the kind of opportunistic handling where a person was tempted to commit at the spur of the moment.  The Defendant had to tow the stolen trailer and/or container through the Lok Ma Chau Check Point all the way to a destination in the Mainland.  He had to complete the cargo manifests with a false trailer serial number and a false container serial number respectively and submit them to the Customs and Excise.  In effect, he was both a handler and a deceiver.  I take a starting point of 18 months’ imprisonment for each offence.  I give a one-third discount for the plea of guilty.  There are no other mitigating factors.  I sentence him to 12 months’ imprisonment on each charge. 

12. As the offences cannot be said to form one single transaction, the terms should be consecutive.  However, on totality, I make the following adjustment:

Charge (1) – 12 months;

Charge (2) – 12 months, 6 of which consecutive to (1), whereas 6 of which concurrent with (1);

Charge (3) – 12 months, 6 of which consecutive to (1) – (2), whereas 6 of which concurrent with (1) – (2);

Charge (4) – 12 months, 6 of which consecutive to (1) – (3), whereas 6 of which concurrent with (1) – (3);

Charge (5) – 12 months, 6 of which consecutive to  (1) – (4), whereas 6 of which concurrent with (1) – (4);

Charge (6) – 12 months, 6 of which consecutive to  (1) – (5), whereas 6 of which concurrent with (1) – (5),;

Charge (7) – 12 months, 6 of which consecutive to  (1) – (6), whereas 6 of which concurrent with (1) – (6),;

Charge (8) – 12 months, 6 of which consecutive to (1) – (7), whereas 6 of which concurrent with (1) – (7);

Charge (9) – 12 months, 6 of which consecutive to  (1) – (8), whereas 6 of which concurrent with (1) – (8).

13. The overall sentence is 60 months’ (or 5 years’) imprisonment.