HKSAR v. CHAN LING KAI (also known as CHAN Hung kai) AND ANOTHER

DCCC 160/2020

[2020] HKDC 730

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 160 OF 2020

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REASONS FOR SENTENCE

D1 and D2 each pleaded guilty to a charge of "Handling stolen goods" (Charges 1 and 2 respectively).

Summary of Facts

The jewellery shop robbery

2.  About 10:15 a.m. on 14 March 2019, a male wearing a cap, a face mask and gloves (WP) entered a jewellery shop situated at Ground Floor, No.125 Kwelin Street, Sham Shui Po ("the Shop").  He took out a pistol-like object and declared robbery.  WP asked a shopkeeper to take out trays of jewellery items from the display cabinet.  He put all the jewellery items in his shoulder bag and left. A total of 112 pieces of jewellery items (valued at $1,336,609) were stolen by WP.

The handling of stolen goods

3.  CCTV footage revealed that about 10:23 a.m. on the same day, WP went to No.286A Yu Chau Street (about 100 metres away from the Shop) and gave the shoulder bag to a male (later identified as D1).  D1 then put it into a black and white checkered pattern bag.  WP removed his jacket, face mask and cap.  D1 and WP entered Sham Shui Po MTR Station.

4.  Immigration records and CCTV footage revealed that WP left Hong Kong for the mainland at 12:29 p.m. on 14 March 2019.

5.  CCTV footage revealed that about 1:16 p.m. on 14 March 2019, D1 went into Sheung Shing House, Upper Ngau Tau Kok Estate with the black and white checkered pattern bag.  D2 (D1's brother) resided at a unit at Sheung Shing House ("the Flat").

6.  Immigration records and CCTV footage revealed that D1 left Hong Kong for the mainland at 3:29 p.m. on 14 March 2019.

7.  D2 was arrested outside the Flat on 26 March 2019 and a house search was conducted.  A total of 64 pieces of jewellery items were found in a bag placed in the living room.  A cap, a toy gun and a shoulder bag were found inside a silver suitcase ("the Silver Suitcase"), which was placed inside a red suitcase ("the Red Suitcase") found in the kitchen.  The 64 pieces of jewellery items were later confirmed to be properties of the Shop; their total value was $756,600.

8.  Under caution, D2 claimed that the bag containing the jewellery items was given to him by "Ah Kai", who promised to take it back.  Ah Kai also took the suitcase to the Flat.

9.  D1 was arrested at 6:45 a.m. on 2 April 2019 when he entered Hong Kong via Lo Wu Control Point.  Under caution, he claimed that WP (known to D1 as "Ah Lung") was the mastermind.  He helped WP take the gold away.

10.  D1's DNA was found on a pair of scissors seized from the Flat.  D2's DNA was found on the gold jewellery items recovered from the Flat.

Video recorded interviews

11.  D1 admitted that D2 is his brother.  In the morning on 14 March 2019, D1 and WP came to Hong Kong from the mainland.  They first went to the Flat for WP to get something from the Silver Suitcase.  They then went to Sham Shui Po to buy medicine.  WP asked D1 to wait at a street corner.  WP came back after 15 to 20 minutes and gave D1 a bag of gold jewellery.  WP asked D1 to store the bag for him.  D1 had no place to store the gold items, so he cut off the tags and asked D2 to store them.  D1 left Hong Kong afterwards.  As instructed by WP, D1 returned to Hong Kong later and took some gold items to the mainland.  D1 identified himself in the CCTV still photos.

12.  D2 admitted that D1 is his elder brother.  The Red Suitcase belonged to D2.  It was D1 who took the Silver Suitcase to the Flat.  About 8:20 a.m. on 14 March 2019, D2 took the Silver Suitcase downstairs as requested by D1.  D1 asked him to take it back after about 5 minutes.  D2 claimed that the Silver Suitcase was locked and he did not know its contents.  D1 came back around 1:15 p.m. the same day and asked D2 to store a bag of gold jewellery.  D2 did not open the bag.  He could feel the weight of the bag and knew that it contained gold.  D2 believed it must have been obtained by unlawful means.  D1 came to the Flat after 14 March 2019 and took out the bag of gold.  D2 found the bag lighter when D1 returned it to him.  D1 asked D2 not to ask anything and said he would take the bag away a few days later.

Mitigation

D1

13.  He is 70 and has 4 conviction records, which included 2 "Handling stolen goods" offences and 1 "Robbery" offence.  I note that his last conviction record is dated 1982 and that he was released from prison in 1989.  Apparently, D1 has stayed trouble free for over 30 years.  D1's counsel Mr. Yuen informed me that D1 currently resides in the mainland.  He no longer works and relies on his own savings.

14.  In mitigation, Mr. Yuen submitted that D1 foolishly agreed to help a friend to keep a bag of gold jewellery for him.  D1 was perhaps greedy thinking that WP would reward him for doing so, though WP made no promise.  Mr. Yuen stressed that D1 had no idea that WP intended to commit robbery on the day when they came to Hong Kong. Everything happened suddenly and unexpectedly on that day.  Since D1 did not have a home in Hong Kong, he decided to keep the gold jewellery at D2's home.

D2

15.  He is 65 and has 3 conviction records, which included 1 "Handling stolen goods" offence and 2 "Robbery" offences.  I note that his last conviction record is dated 1990 and that he was released from prison in 1997.  Apparently, D2 has stayed trouble free for 20 odd years.  D2's counsel Ms. Lai informed me that D2 is single and resides with a female friend in Ngau Tau Kok.  He makes a living by trading grey goods（水貨）.

16.  In mitigation, Ms. Lai submitted that D2 was merely helping his brother, D1.  D2 played no role in and had no idea about the robbery committed by WP, though he knew that D1 did not have the ability to obtian the gold jewellery by lawful means.  D2 received no benefit by helping D1.

Sentence

17. It is of some significance that both D1 and D2 have managed to stay out of trouble for decades. I would disregard their previous convictions for the purpose of sentencing.

18. When determining the starting point for each charge, I have borne in mind the sentencing principles laid down by the English Court of Appeal in R v Webbe (Bernard) [2002] 1 Cr App R (S) 22(which were adopted and applied by the Court of Appeal in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360). Mr. Yuen has fairly acknowledged that 3 aggravating factors exist as far as D1 is concerned (namely closeness of D1 to the robbery offence; particular seriousness in the robbery offence; and high value of the goods to the Shop). Ms. Lai, however, submitted that none of the aggravating factors listed in Webbe exist in D2's case.

19. For D1, I consider 3 years' imprisonment to be the appropriate starting point. I will enhance it by 6 months to reflect the 3 aggravating factors mentioned above. With the timely guilty plea, his sentence is reduced to 28 months. I note the contents of D1's medical report (dated 2 December 2019). As an act of mercy, I will grant him a further discount of 2 months for his age and health conditions. I sentence D1 to 26 months' imprisonment for Charge 1.

20. For D2, it appears that he played a relatively passive and "involuntary" role, especially when D1 just shoved the bag of gold jewellery at him (figuratively speaking). I consider 2.5 years' imprisonment to be the appropriate starting point. With the timely guilty plea, his sentence is reduced to 20 months. I sentence D2 to 20 months' imprisonment for Charge 2.