HKSAR v. DONG JIAHAO

DCCC 291/2024

[2025] HKDC 1524

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 291 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.

2.  Briefly, the Summary of Facts shows that PW1, the victim, had lost his Rolex watch (worth HK$117,895)  after attending a gathering with his friends on 3 September 2022.  He was drunk and fell asleep.  He found his watch missing when he woke up in the next morning.  He checked with the friends but in vain, and then he left the venue of the gathering and headed to make a report to the police.

3.  Two months later, on 22 November 2022, the defendant was received by the staff of a pawnshop.  The defendant successfully pawned the watch, the stolen property, at HK$70,000 but the staff was notified by the police that the item was a stolen property two days subsequent to the visit of the defendant.

4.  PW1 was called upon to assist in the investigation and he positively identified the watch to be his lost property.  PW1 confirmed that he did not know the defendant nor the female who accompanied the defendant during his visit.  PW1 eventually redeemed the watch from the pawnshop at HK$45,000.

5.  The defendant was arrested on 4 February 2023.

6.  Based on the above, the defendant admitted that at the material time, he dishonestly received the Rolex watch, a stolen goods, being property belonging to PW1, knowing or believing the same to be stolen goods.  The defendant is convicted accordingly.

7.  In mitigation, Mr Boyton fairly acknowledged that the defendant does not enjoy a full one-third discount.  The late plea of guilty only warrant a 25% reduction of sentence.

8.  Mr Boyton also fairly referred to the previous conviction of his client, which includes 3 cases and 10 offences, most of them were offences of dishonesty.  It is emphasized that the defendant is only 25 years of age.  In other words, he was relatively young when he received a probation order and a term of incarceration in the Rehabilitation Centre in the past, and so when he committed the present offence around 3 years ago.

9.  Further mitigations focused on the proper starting point.  Mr Boyton submitted that:

“1. There is no tariff for the offences of “Handling Stolen Goods”, for each case must depend on its own facts. The offence of handling stolen goods carries a maximum penalty of 14 years’ imprisonment, and “Theft” carries a maximum penalty of 10 years’ imprisonment.

2. Having said that, the oft cited case of R. v. Chan Wing-kwan & Anor, CACC 121/1985 (unreported, 28 August 1985), appears to lay down a reference for that sentence, where Roberts, CJ said:

“An examination of a number of other cases of handling of stolen goods shows that the normal bracket of sentences runs between 2 and 4 years. Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled.”

3. However, in relation to the majority cases of handling stolen goods, that adopt or apply this 2 to 4 year starting point, involve an original offence that was far more serious, than in the instant case, and invariable the ‘stolen goods’ were the proceeds of burglaries.”

10.  There is no evidence to link the defendant to the theft of the watch in this case.  It is fair to say that there is also no evidence as to how the defendant came to be in possession of the watch.

11.  This court however has no hesitation in rejecting the assertion that the defendant bought the watch from a friend.  He claimed to the police that he bought it at HK$70,000.  There is simply no reason for him to pawn it at HK$70,000 shortly afterwards had he bought it at the same price (See para 13 of the Summary of Facts).

12.  In any event, the guilty plea confirms that the defendant committed the offence knowing or believing that the watch was a stolen property.  This vitiates whatever assertion he made to the police earlier on.

13.  That being said, this court is prepared to accept that the instant case is not about “proceeds of burglaries”.  There is no evidence to link the defendant to the underlying theft (in whatever form).  This case remains serious however; the offence does not require the proof of that link either.

14.  Mr Boyton also provided this court with the following cases and a summary:

“(1)  HKSAR v. POON Yu-fai, CACC 36/2011 (unreported 16 August 2011)  which involved a Rolex watch, the proceeds of a burglary, which was pawned 6 days later, together with the individual aggravating features of the appellant, resulted in a starting point of 2 years and 3 months’ imprisonment.

(2)  HKSAR v. XIAO Wei [2003] 3 HKLRD 1063 involved a stolen watch which originated from a domestic burglary, where the Court of Appeal accepted that the appropriate starting point was below the band suggested in Chan Wing-kwan, namely 18 months. At paragraph 9 of the judgment the following was said:

“Mr McGowan also invited our attention to a most helpful schedule which had been prepared to illustrate that, judging from other Court of Appeal decisions, a starting point of three years or above, in handling cases arising from burglary or robbery, seemed to be reserved for more serious offences than the circumstances justified in the instant case.”

(3)  LUNG Wei-cheong v. R., CACC 293/1994 (unreported 8 November 1994)  the handler had handed keys to the burgled premises and took a share in the stolen goods; and was sentenced the same as one of the burglars, namely 3 years’ imprisonment (not included in the defendant’s list of authorities).

(4)  R. v. YAU Yu and others, CACC 243/1992 (unreported 10 February 1993)  where the stolen goods originated from a robbery inside a premises. Of note is at paragraph 12 when the Court of Appeal referred to CHAN Wing-kwan (above), considered “No principle emerges from the judgment”.

(5)  HKSAR v. KWAN Po-keung [2012] 2 HKLRD 12 the applicant was convicted of other offences, including obtaining property by deception and burglary. For the handling offence, the items involved seven stolen credit cards, which infers the possibility of further offences being committed by the applicant, and on par with a sentence for the possession of stolen credit cards per se, sentenced to 2 years’ imprisonment for the handling charge.”

15.  It appears that the victim was not subjected to violence and the theft could be carried out by one single person, seemingly, who was a participant in the gathering, who took advantage of the drunken condition of the victim.  This is to a certain extent akin to a breach  of trust scenario.  Nonetheless, there is not an iota of evidence to place that element on the defendant before this court.

16.  It should be acknowledged that the value of the stolen property is high.  Mr Boyton also made reference to a number of cases that involved the stealing of valuable property, personal smart phone and credit card (See HKSAR v Tong Wai Hung HCMA 418/2002; HKSAR v Tumendelger Byambadelger CACC 247/2015; HKSAR v Atienza Richard Montenegro CACC 38/2016; and HKSAR v Tseveen-Ochir Batjargal CACC 250/2016).  These cases took a much lower starting point of 9 months’ imprisonment.

17.  Mr Boyton suggested that the present case is akin to a theft by finding and requested this court to consider a starting point that is lower than 12 months’ imprisonment.  Having carefully considered, this court is not prepared to accept that submission.  Nor should the court adopt the usual starting point only when the underlying offence is burglary, implying that a higher starting point is not justified in other context.

18.  After all, each case depends on its own facts and features.

19.  In Xiao Wei, the subject stolen goods was a watch and the appellant in that case pawned it shortly after the burglary took place.  The Court of Appeal found that a 3-year starting point was manifestly excessive and replaced it with a 18 months’ starting point.  It is noteworthy that, a number of aggravating factors were deduced from the case of R v Bernard Webbe & Others, cited at 1067G-1068A:

“(1)  The closeness of the handler to the primary offence. (We add that closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal).

(2)  Particular seriousness in the primary offence.

(3)  High value of the goods to the loser, including sentimental value.

(4)  The fact that the goods were the proceeds of a domestic burglary.

(5)  Sophistication in relation to the handling.

(6)  A high level of profit made or expected by the handler.

(7)  The provision by the handler of a regular outlet for stolen goods.

(8)  Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurising addicts to steal in order to pay for their habit.

(9)  As is statutorily provided by s. 151(2)  of the Powers of Criminal Courts (Sentencing)  Act 2000, the commission of an offence while on bail.

The Court went on (in paras. 21-22)  to say:

We also agree with the mitigating factors identified as being among those relevant … namely, low monetary value of the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, and the fact of voluntary restitution to the victim.

We also agree … that other factors to be taken into account include personal mitigation, ready co-operation with the police, previous convictions, especially for offences of dishonestly and … a timely plea of guilty.”

20.  The Court of Appeal added that, “the applicant revealed a considerable lack of sophistication in his method of converting the stolen watch into a sum of money when providing details about himself through which he could be (as indeed he was)  traced (at #11).”  This is what had happened in the present case.

21.  Conversely, the value of the stolen goods is higher in the present case.  It is only fortunate that the victim had already retrieved it.  As a result of the negotiation between the pawnshop and the victim, the loss of the victim is limited to $45,000 whereas, the pawnshop suffers a loss of $25,000 ($70,000 - $45,000 = $25,000).  The defendant offered a restitution of HK$40,000.  The prosecution has expressed that this is accepted and the loss of the victim(s)  (ie PW1 and the pawnshop)  is further reduced.

22.  Another distinguishing feature is that the underlying offence in Xiao Wei was a domestic burglary. 

23.  In all the circumstances, an immediate custodial sentence is necessary to reflect the seriousness of the offence.  This court is of the view that a starting point of 15 months is appropriate.  Whilst the defendant should not be punished for his past offences, a one month addition should be introduced in order to mark the necessity to impose a specific deterrent sentence on this repeated offender in the category of dishonesty.

24.  This 16-month is reduced to 12 months on the late guilty plea.  A further reduction of 2 months is given to reflect the partial restitution.

25.  There is no basis to further reduce the sentence nor is other form of sentence appropriate in the present case.

26.  The defendant is sentenced to 10 months’ imprisonment accordingly.