HKSAR v. CHEN TAI-WEN

 DCCC342/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 342 OF 2010

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant was convicted upon his guilty plea of one charge of handling stolen goods, Charge 2, and one charge of assaulting a police officer, Charge 3. In sentencing, I take into account the whole circumstances of the case, including its nature and facts, background of the defendant and mitigation put forward on his behalf.

2.  The facts are simple. It was midnight; the defendant was driving a motorcycle when he was approaching a police roadblock. Police officers found in the storage box of the motorcycle a wallet. Inside the wallet were an identity card and a driving licence, both not in the name of the defendant. The defendant admitted that he did not have his driving licence with him.

3.  Then, suddenly, the defendant pushed away the enquiring officer and fled. Police officers then pursued him. One of the officers, SPC 4588 was able to hold onto the defendant’s shoulder but fell and sustained abrasion on his right elbow, hand and knees. The defendant was able to make good his escape.

4.  The motorcycle was stolen from its owner a few days before the incident.

5.  The defendant pleaded guilty to the 2nd and 3rd charges. The court was told he had borrowed the motorcycle from a friend knowing that it was a stolen property.

6.  Counsel for the defence also told the court that the defendant had provided information in relation to this friend, but investigation of the police bore no fruit. It was also stressed that the defendant was now remorseful.

7.  The defendant is 31 years of age. He had received Form 3 education. He is married with a daughter now 2½ years old. He had worked as a casual worker and waiter before, earning about $9,000 per month. But now his family has to rely on CSSA.

8.  He is not a first-time offender. On 29 occasions he was convicted and sentenced for 22 offences, including 8 dishonesty offences, 2 offences involving assault of a police officer and some dangerous drugs related offences. He was first convicted in 1993 when he was only 15 years old. On that occasion for an offence of AOABH, he was put on probation. He went on to commit other offences and more serious offences, some resulting in imprisonment sentence.

9.  At present he is serving a total imprisonment term of 3 years imposed on him on 14 September 2009 for the offences of conspiracy to defraud, assaulting a police officer and failing to surrender to custody without reasonable cause. His earliest date of discharge is expected to be on 22 June 2011.

10.  The Court of Appeal has time and again said that the offence of handling stolen goods is of a serious nature. However, no tariff is set for the obvious reason that the facts and degree of seriousness vary between each case. In the present case, the basis of the plea is that the defendant borrowed the motorcycle knowing that it was stolen. The prosecution did not take issue about it. It is obviously a valid basis to plead guilty to the charge.

11.  I bear in mind that the offence of handling stolen goods carries a maximum sentence of 14 years’ imprisonment. The facts of the present case bear some similarities with the offence of taking conveyance without authority which carries a maximum sentence of 7 years. I have considered the case of R v Bernard Webbe [2002] 1 Cr App R(S)82 in which aggravating factors in sentencing were set out and the factors were adopted with approval from local courts. The current offence was committed just 5 days after the motorcycle was stolen. Though there is no evidence on the value of the motorcycle, in normal circumstances the cost would not be insignificant.

12.  Counsel for the defence said the loss to the victim was reduced now that the motorcycle was recovered. In my judgment, it was only a result of coincidence and cannot be regarded as a mitigating factor. It was not the intent of the defendant to return the motorcycle to its owner. He was enjoying the use of a stolen motorcycle with total disregard of the rights of the original owner.

13.  There is no evidence of how the motorcycle was stolen, nor that the defendant was aware how it was stolen. There is no allegation that a sophisticated scheme was involved. In all the circumstances, taking into account the whole circumstances in the present case alone, I am of the view that an immediate custodial sentence is called for and an initial starting point of 18 months is appropriate for Charge 2. However, taking into account the previous bad record of the defendant and the fact that he committed the present offences whilst he was on bail for another case, I adopt an ultimate starting point of 21 months for Charge 2.

14.  In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, the Court of Appeal said that:

“Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he had already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs has in itself increased the gravity of these offences, at least so far as sentence is concerned.  The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.  We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none.  If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.”

15.  In AG v Law Ying Cheung [1981] HKC 161, his Lordship Cons JA said:

“Where a person was caught at his first attempt but while on bail awaiting trial and sentence deliberately went out to commit a more serious offence, this reflected upon the person’s character as one whose heart was already hardened.”

16.  Whilst it may be said that the present case is not more serous than those in the previous case, it was still a serious one. In my judgment, the cumulative effect of these two factors justifies adopting a higher starting point.

17.  As regards Charge 3, the defendant obviously used force on the police officer with a view to make good his escape and which he succeeded and continued to hide away for a considerable period of time. The force he used was minimal. And I accept the assertion that the defendant was very frightened at that time. Luckily, the officer only sustained minor injuries.

18.  The nature of the offence is serious, in particular, bearing in mind the circumstances in which the offence was committed. The defendant had committed twice the same nature of offence before. I am also of the view that an immediate custodial sentence is warranted and a starting point of 3 months is appropriate.

19.  The defendant pleaded guilty, he is entitled to a one-third discount. Having regard to the whole circumstances, including mitigation submission, I am of the view that this is the extent of discount the defendant is entitled to. He has a young daughter now 2½ years old. However, the adverse impact on the family and the young daughter should be what the defendant should consider when he embarked on the offences.

20.  He has provided information to the police. I was told that the investigation bore no fruit. There is no assertion otherwise, I found that the information provided is of limited usefulness.

21.  The defendant was arrested on 22 April 2009. However, he was charged only on 22 March 2010. The reason for the time lapsed is that further police investigation was being carried out in the interim, in particular, as a result of the information provided by the defendant. In a way the defendant may be viewed as being prejudiced by his goodwill of assisting the police. However, the investigation bore no fruit. The delay cannot be said to be substantial. And in any case the defendant had already been sentenced to an imprisonment term on 14 September 2009 for another case DCCC506/2008.

22.  By reason of the matters aforesaid, I sentence the defendant to 14 months’ imprisonment for Charge 2 and 2 months’ imprisonment for Charge 3. Having regard to the whole circumstances in the present case and the principle of the totality, I order one month of the sentence imposed on Charge 3 to run consecutively to that imposed on Charge 2, making a total sentence in the present case of 15 months’ imprisonment.

23.  The defendant is serving an aggregate of 3 years’ imprisonment term imposed on him on 14 September 2009 in DCCC506/2008. In the light of HKSAR v Chan Ho Yin CACC257/2000 and HKSAR v Lo Chung Yin CACC155/2003, I consider the aggregate sentence in the two cases, bearing in mind totality. The two cases I have to consider are of completely different nature though both involve dishonesty as an element. The present case involved using of a stolen motorcycle. The main offence in the previous case, DCCC506/2008, is conspiracy to defraud. It concerned a conspiracy to deceive a credit card issuing company to issue a replacement card on a false representation that the cardholder had lost his card.

24.  In the circumstances, consecutive sentences are, as a matter of principle, appropriate. I also noted the defendant committed the present offences while on bail for DCCC506/2008. Having regard to totality, I order 13 months of the overall sentence in the present case to run consecutively to the overall sentence imposed in DCCC506/2008.