HKSAR v. CHAN YEE LAP

DCCC 443/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 443 OF 2012

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

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

Reasons for Sentence

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

1.  Defendant, you were charged with four offences on the indictment. The first and second charges were charges of burglary, the third charge was that of possession of Part I poison, and the fourth charge was a charge of aiding, abetting, counselling or procuring a person to handle stolen goods, but that was the fifth charge on the charge sheet.

2.  You pleaded guilty to burglary in the first charge and the possession of Part I poison in the third charge. 

3.  You pleaded not guilty to the burglary charged in the second charge and the aiding and abetting a person to handle stolen goods in the fifth charge.  I convicted you after trial of both charges.

4.  I shall therefore now deal with the sentence on those four offences.

5.  The facts of the charges are as follows.

6.  During the Chinese New Year holidays between 22 and 27 January 2012 you burgled a restaurant and a recycle shop which were at that time closed for business as a result of the holidays.  The two premises were located near to one another in the Cheung Sha Wan district.  The restaurant was the subject premises of Charge 1 and the recycle shop was the subject premises for Charge 2. 

7.  When the proprietors of those premises returned to their respective shops after the holidays they found that their premises were burgled and items were stolen.  At the restaurant cash of about $113,000, a handbag, three rings, a wristwatch, three bangles and a necklace were stolen.  The value of the jewellery was about $23,000, so the total value of the first charge amounts to approximately $136,000.

8.  In respect of the second charge of burglary, what was stolen were bags of copper from a recycle shop.  That copper was valued at about $170,000.  Also stolen from there were coins of about $3,000.

9.  On 29 January, when the proprietress of the recycle shop returned to her premises and noticed the burglary and the stolen properties missing, she reported the matter to the police.  On that same day the police had intercepted you along with an unknown male moving her stolen property from a shop into a light goods vehicle.  The proprietress went to that very location where you were moving the scrap metal and identified the properties as belonging to her.

10.  The following day you were taken back to your house under a search warrant and in your house, coins contained in transparent plastic bags with the logo of the burgled restaurant was found.  Also found were the stolen properties from the restaurant, which were the rings, bangles and wristwatch.  The police also found the subject matter of Charge 3, which was the Part I poisons.  Immediately thereafter you were arrested and remanded in the Lai Chi Kok Reception Centre.

11.  About six days after your arrest, on 6 February, the co-accused (D2) in this case and your wife visited you at Lai Chi Kok.  The CCTV video-recording of the interview room at Lai Chi Kok captured you in conversation with your co-accused, (who I eventually acquitted after the trial) on the phone.  You were showing D2 a map and pointed out a location to him. 

12.  Later that afternoon at about 2.45 pm D2 was seen by police officers to be removing bags of copper tubes and wires from a rear lane in Cheung Sha Wan onto a light goods vehicle (LGV). 

13.  The proprietress of the recycle shop was called to the scene immediately and identified some of the bags of copper wire both on the LGV and at the rear lane as the stolen property from her premises.

14.  I had found that you had aided and abetted D2 to handle to remove or dispose of those stolen goods.

15.  Defendant, you are 42 years of age.  You have 13 previous convictions involving 24 charges.  Twelve of those charges relate to dishonesty, three of those relate to handling stolen goods, seven of those relate to dangerous drugs.

16.  Mr Paul Kwong, your solicitor, has made full and thorough mitigation on your behalf before me today.  He quite rightly points out that the only applicable sentence here given the offences to which you have committed is one of an immediate sentence of imprisonment. He also submits that it would be correct for the court to enhance the sentence on the burglary charges in view of your previous criminal record.  He asked me, however, to take into account the principle of totality and to sentence you to as short a term as the court considers correct.

17.  You are married.  Mr Kwong has submitted that because of your low education and earning capacity and your previous criminal record you have not been able to secure meaningful jobs.

18.  Defendant, in respect of Charges 1 and 2, the burglary charges, these were well-planned and premeditated.  It was a quiet period of time in which the shops were closed and you knew there would be no one manning those shops.  You had targeted these particular premises over the Chinese New Year holidays.

19.  As regards whether you were committing the offences solely or with others, I do not know.  What I am clear about, however, is that the CCTV shows that from the burglary of the recycle shop a person had used a trolley to steal these goods from the shop.  The property was found at nearby premises.  You were eventually found there moving the stolen property into a van.  You were caught red-handed with the stolen property.  Your intense challenge at trial that this was your own property and not the proprietress’ property shows me that you have no remorse whatsoever in respect of Charge 2.

20.  It was obvious from the facts of charge 5 that you had hidden some of the stolen property down a rear alley.  As you were incarcerated you could do nothing about it and that is why you looked to D2 to assist you to dispose of or remove this stolen property. 

21.  It was quite fortunate that the police were there at the material time and managed to recover the property. 

22.  The CCTV video taken of you at Lai Chi Kok shows that you were very animated in your conversation with D2 and appears to show your eagerness to show D2 where this stolen property was located.

23.  Mr Kwong has asked me to treat the aiding and abetting handing of stolen goods charge and the burglary in charge 2 as facts that arise out of the same facts, that is, there is no further episode of criminal activity. 

24.  I cannot agree with him.  The stolen goods arise out of the same offence.  However, this is a further episode of criminal activity of which you were committing whilst you were incarcerated.  This involved criminal conduct separate from the burglary charge.  I, however, am well-aware of my task of sentencing and taking into account the principle of totality when considering the appropriate sentence to be passed for these four offences.

25.  The offences are all separate and distinct offences.  However, I do consider the principle of totality, and I consider that partly concurrent and partly consecutive sentences are appropriate for these offences.

26.  I am also of the view that in view of your past criminal record an enhancement to the starting point is justified.

27.  For these four offences, defendant, I consider a total period of imprisonment of 4 years’ imprisonment to be appropriate.

28.  For Charges 1 and 2, you burgled what is commonly referred to as commercial premises.  The usual starting point for those offences is one of 30 months’ imprisonment. However, in view of your past criminal record, I consider an enhancement of 6 months’ imprisonment to that of 30 months to be appropriate, making the starting point that of 36 months.

29.  On Charge 1, I would have taken a starting point of 36 months’ imprisonment.  Giving you credit for your plea of guilty, that term would be reduced to 24 months’ imprisonment.

30.  On Charge 2, you are sentenced to 36 months’ imprisonment.

31.  On Charge 3, you are sentenced to 14 days’ imprisonment.

32.  On Charge 5, you are sentenced to 24 months’ imprisonment.

33.  In respect of the sentences that are to run consecutive, 15 months of Charge 2 and 9 months of Charge 5 are to run consecutive to Charge 1, making a total term of 4 years’ imprisonment.

34.  Charge 3 is to run concurrent, and the remainder of the sentences for each of those will run concurrent to the other terms.