HKSAR v. WONG FUK AND ANOTHER

DCCC 830/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 830 OF 2010

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REASONS FOR SENTENCE

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1.  D1 pleads guilty to one charge of conspiracy to steal light goods vehicles, contrary to section 9 of the Theft Ordinance, Chapter 210 and sections 159A and 159C of the Crimes Ordinance, Chapter 200 (charge 1). D4 pleads guilty to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance (charge 14); one charge of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Chapter 200 (charge 2) and one charge of possession of apparatus fit and intended for the inhalation of ice,contrary to section 36 of the Dangerous Drugs Ordinance, Chapter 134 (charge 11).

Conspiracy to steal (charge 1)

2.  In summary between the 1st and 4th May 2010 D1 conspired with others to steal Toyota Hiace light goods vehicles. Pursuant to that agreement four Toyota Hiace light goods vehicles, as particularised in the charge, were stolen from their parking places in Tai Po and Tsuen Wan. The rear doors of the vehicles had been tampered with and damaged, the locks of which were used to make duplicate keys. Particulars of each theft and what happened to the stolen vehicles is set out in the facts admitted by the defendant.

3.  On the 4th May the police discovered one of the four stolen Toyota Hiace light goods vehicles GZ 3806 was parked at the Chung Shun Car Park in Yuen Long. In the evening at about 20:10 hours D1 alighted from a car and entered the car park where he opened the driver’s door of GZ 3806 and then went to pay the car park fee. The police operation turned overt and D1 was intercepted, at which time he threw the key used to open the door of GZ 3806 on to the ground.

Handling stolen goods & using a copy of a false instrument (charges 2 &14)

4.  One of the four stolen Toyota Hiace light goods vehicles KX 6236 was stolen from Tai Po in the early hours of the 1st May 2010. Later the same day D4 knowing the vehicle had been stolen offered to sell the vehicle to a motor dealer Mr Lai Man-yee (PW5). Mr Lai met D4 at the Chung Shun Car Park in Yuen Long where KX 6236 was parked and agreed a price of $11,000.

5.  D4 then drove Mr Lai to his office where the paper work was completed. To prove ownership D4 knowingly handed over a copy of a false vehicle registration document. After the sale Mr Lai became suspicious whether the vehicle registration document was genuine because the vehicle was said to be manufactured in 1990 yet bore the first registration taxable value, which valuation had not been introduced until 1993. Mr Lai then made a report to the police. The Transport Department confirmed the vehicle registration document was false

Possession of apparatus fit and intended for the inhalation of ice(charge 11)

6.  On the 5th May 2010 during a house search of D4’s residence the police found a glass bottle with two straws and some liquid found to contain traces of ice. Under caution the defendant admitted using the bottle for smoking drugs.

7.  I have carefully considered everything said by Mr Boyton on behalf of D1 together with the letter written by D1. I have carefully considered everything said by Mr Yuen on behalf of D4, including the medical condition of the defendant as set out in the medical report from the Pamela Youde Nethersole Eastern Hospital.

Starting points

Conspiracy to steal/Handling stolen goods/Using a copy of a false instrument

8.  In HKSAR v CHENG Chun-ming CACC 356/2000 the Court of Appeal in upholding a starting point of 3 years imprisonment for handling one stolen vehicle valued at approximately $158,000 said, “Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

9.  Taking into account that four vehicles were stolen as a consequence of the agreement, which vehicles were all Toyota Hiace light goods vehicles, all manufactured in the 1990’s and therefore not new, I am satisfied the proper starting point after trial on charge 1 for conspiracy to steal is 4 years imprisonment.

10.  D1 is currently serving a sentence of 4 years and 9 months imprisonment imposed on the 16th July 2010 in DCCC1440/2009 for a similar offence of conspiracy to steal Toyota Hiace light goods vehicles. The present offence was committed whilst on bail for that offence, which is an aggravating feature of sentence. I am satisfied the starting point is to be increased by 6 months imprisonment to 4 years and 6 months imprisonment.

11.  There are no guidelines for handling stolen goods. In passing sentence I take into account the factors identified in R v Bernard Webbe [2002] 1 Cr. App. R. (S) 82.

12.  The use of a false vehicle registration document to cover up from the purchaser the fact the vehicle had been stolen is in my view an aggravating feature of the handling. Taking into account that KX 6236 was manufactured in 1990 and was said to be worth $12,000; that the defendant used a false vehicle registration document to cover up the fact the vehicle was stolen, and that the defendant is not a motor dealer, I am satisfied the proper starting point after trial is 3 years imprisonment for the handling and 1 year and 6 months imprisonment for using a false document. I am satisfied having taken into account the aggravating feature of using the false document in determining the starting point for handling that concurrent sentences are appropriate.

Possession of apparatus fit and intended for the inhalation of ice

13.  The defendant is clearly a long term drug addict having convictions for possession of drugs in 1991 and 2007. In the antecedents the defendant claimed to the police he was a drug addict.

14.  The usual sentence for possession of apparatus is in the order of 3 months imprisonment on a plea of guilty (see for example HKSAR v LEE Sheung-chuen HCMA 109/2001 as applied in HKSAR v NGAI Sin-fat HCMA 553/2004). I am satisfied in the circumstances of this case the proper starting point after trial is one of 3 months imprisonment.

Sentence

15.  Giving D1 full credit for his plea of guilty reduces the sentence on charge 1 to 3 years imprisonment.

Assisting authorities

16.  D1 testified on behalf of the prosecution at the trial of D2. I found I could not rely on D1’s evidence for the reasons set out in my verdict. I am however told by Mr Tracy that D1’s evidence in court was in accordance with his non-prejudicial statement.

17.  At trial Mr Tracy said that essentially the prosecution relied on the evidence of D1. This is somewhat surprising considering the charge of conspiracy had been laid against D2, transferred to the District Court and a date set down for trial, before D1 decided to assist the prosecution. It would therefore appear the prosecution may not have been able to proceed against D2 without the assistance of D1. To this extent therefore D1 can be said to have assisted the authorities, although ultimately his evidence was not relied on by the court.

18.  Those who assist the prosecution by giving truthful and material evidence can expect a discount of up to 50% (see HKSAR v Z [2007] 1 HKLRD 977). This very much depends on the quality of the assistance and also reflects the risks entailed in giving evidence against a co-accused. In the circumstances, although the court has not relied on the evidence of D1, as D1 came “up to proof” I am prepared to give an additional discount for assisting the prosecution (see HKSAR v CHAN Sau-hing CACC 211/2001). I am satisfied a further discount of 6 months imprisonment is appropriate, which in percentage terms makes a discount of almost 45% resulting in a sentence of 2 years and 6 months imprisonment.

19.  As noted earlier D1 is serving a sentence of 4 years and 9 months imprisonment for a similar offence. I have had the opportunity of reading the reasons for sentence in DCCC 1440/2009. D1 was convicted after trial. The trial judge took a starting point of 4 years imprisonment, which sentence was enhanced by 9 months on the court ruling the offence was both an organized crime and was prevalent. The prosecution in the present case have withdrawn their application that the sentence be enhanced on the ground that the offence is an organized crime.

20.  The two conspiracies being separated in time by over 8 months consecutive sentences are appropriate subject to totality of sentence to be served. Taking into account the similar nature of both offences I am satisfied a total sentence of 6 years and 6 months imprisonment properly reflects the defendant’s criminality, from which I deduct the 6 months for assisting the authorities, making a total sentence of 6 years imprisonment.

21.  On charge 1 D1 is convicted and sentenced to 2 years and 6 months imprisonment with 1 year and 3 months ordered to be served consecutive and 1 year and 3 months concurrent to the sentence the defendant is now serving.

D4

22.  Giving D4 full credit for his pleas of guilty he is convicted and sentenced as follows:

Charge 14 – 2 years imprisonment

Charge 2 – 12 months imprisonment concurrent to charge 14; and;

Charge 11 – 2 months imprisonment;

Charge 11 the drug offence is separate and distinct from charges 2 and 14 for which a consecutive sentence is appropriate. I am satisfied a total sentence of 2 years and 2 months imprisonment properly reflects D4’s criminal culpability on the three charges. Accordingly I order the sentence on charge 11 to be served consecutive to charges 2 and 14.