HKSAR v. LAM WAN HO

DCCC368/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 368 OF 2009

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

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

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

Reasons for Sentence

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

1.  The defendant, Mr Lam Wan-ho, appears before me and pleads guilty to two charges of handling stolen goods, the 1st and the 2nd charge. 

2.  Both offences took place on the 10th day of September 2008.   The 1st charge concerns one light goods vehicle bearing registration mark JF 9712.  The 2nd charge concerns a light goods vehicle bearing registration mark LK 7868.  In both cases the defendant dishonestly undertook or assisted in the retention, removal, disposal or realization of the light goods vehicles in question by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods. 

3.  The facts are set out in details in the Summary of Facts prepared by the prosecution and I shall adopt the facts in full.

4.  The theft of the light goods vehicle JF 9712, hereinafter referred to as the first van, took place between 8.15 pm on 9 September 2008 and 7.15 am on 10 September 2008.  The theft  of the light goods vehicle LK 7868, hereinafter referred to as the second van, took place between 8.25 pm on 9 September 2008 and 6 am on 10 September 2008.  The theft of both vehicles took place at Wang Lok Street, Yuen Long.  It is relevant to note that both the first and the second van were of the Toyota brand and of the Hiace series.

5.  On 10 September 2008 at about 1.33 pm the defendant and two unknown males were seen to have boarded a private car.  The defendant drove the car along Castle Peak Road and stopped outside a shop in Yuen Long which offered tailor-made service for licence plates.  One of the unknown males alighted from the car and entered the said shop and returned with a licence plate showing the registration mark MH 2348, hereinafter referred to as the licence plate.  The car was then driven off in the direction of Ma Tin Road.

6.  At about 3.05 pm the defendant was seen driving another private car into a garage.  The garage was owned by a Leung Ting-kai.  No one other than the defendant was present at that time.  At about 6.26 pm on the same day the defendant was seen standing outside the garage.  He opened the gate of the garage and drove a light goods vehicle attached with the licence plate towards Fuk Hi Street.  This light goods vehicle was later confirmed to be the first van. 

7.  At about 6.40 pm the police took arrest action.  The first van was intercepted by the police at Fuk Hi Street.  The defendant attempted to drive away but was finally stopped and arrested.  He was then wearing a pair of labour gloves at that time.  He was cautioned.

8.  The police officers seized a bundle of documents including the vehicle registration document for MH 2348 and a copy of HKID card in the name of Yan Chi-kwan from the defendant.  The said vehicle registration document was later confirmed to be forged. 

9.  The police conducted two video-recorded interviews with the defendant.  Under reminded caution, the defendant admitted the followings:

(a)  a friend called Ah Kin offered $5,000 as reward to the defendant for concealing a vehicle.  Ah Kin had warned the defendant not to tell others about it.  The defendant therefore believed that the first van had been stolen;

(b)  since the defendant owed Ah Kin money he accepted the offer;

(c)  he was wearing gloves at the time of arrest as he wanted to avoid leaving fingerprints on the first van;

(d)  at about 2 am on 10 September 2008 an unknown male drove the first van to his place of work and handed the first van over the defendant;

(e)  the defendant then drove the first van into the garage owned by his friend Leung and left the vehicle there;

(f)  at about 1 pm on the same day Ah Kin instructed the defendant to drive the first van to the roundabout at Kam Tin;

(g)  the defendant was subsequently arrested by the police;

(h)  the copy of the HKID card and the vehicle registration document were placed next to the driver’s seat when the unknown person passed the first van to the defendant;

(i)  the defendant kept those documents on him as he did not want Leung to suspect anything.

10.  Police investigated the garage on 11 September 2008 and found the second van showing registration number EN 8560 concealed inside a partition of the garage.  Another copy of the HKID card of Yan Chi-kwan, two copies of vehicle registration form of MH 2348 and one copy of vehicle registration form of BY 2230 and FF 2903 respectively were found inside a drawer of the garage.  A plastic bag that contained the genuine licence plate of the second van and miscellaneous documents that belonged to Kwok were also found inside the drawer; Kwok was the staff of the company that owned the second van. 

11.  A third video-recorded interview was conducted with the defendant after the search.  Under reminded caution, the defendant further admitted the followings:

(a)  Ah Kin instructed the unknown male to hand two vans to the defendant on the same night;

(b)  the defendant would be receiving another $5,000 for concealing the second van;

(c)  he had not mentioned the second van to the police before because the police had not recovered the second van at the time;

(d)  the defendant later concealed the HKID card copies and vehicle registration documents inside the drawer as he did not want Leung to see those documents too;

(e)  when asked about the licence plate attached on the second van, that is EN 8560, the defendant admitted that he had a car registered with the registration number EN 8560.

12.  Forensic examinations show the followings:

(a)  the chassis number of the first van had been altered and a new chassis number was stamped onto the original position;

(b)  five footwear prints were found on the metal tray inside the first van and they were from the defendant’s slippers;

(c)  the ignition lock assemblies and the lock cylinder of the door lock of both the first and the second van had been dissembled and could be operated freely by any objects that could fit into their keyways.

13.  Yan Chi-kwan confirmed that he did not register MH 2348, FF 2903 and BY 2230 nor did he know the defendant or Leung. 

14.  On 20 March 2008 the defendant appeared before the court and was convicted of one charge of unlawful possession of dutiable goods and one charge of storage of dangerous goods without a licence.  For these offences the defendant was fined by the court. 

15.  The antecedent statement of the defendant reveals that he is now 44 years of age.  He had received Form 5 education in Hong Kong.  At the material time he was a car jockey by occupation. 

16.  The prosecution applies for an enhancement of the sentence because of prevalence.  Notice has been served on the defendant.  In support of the application the prosecution submitted a report in the form of a statement prepared by Mr Lee Kwai-wah, detective senior inspector of police.  The statement was admitted under section 65B of the Criminal Procedure Ordinance. 

17.  In paragraph 7 of the report Inspector Lee provided the figures of overall missing vehicles, missing light goods vehicles, LGVs, and also the Toyota Hiace between 2006 and January 2009 from the Crime Statistics Office.

18.  Paragraph 8 says, “The above figures concerning the missing of vehicles, light goods vehicles and also the Toyota Hiace show that there is an increasing trend of theft of LGVs albeit though for missing of vehicles on monthly average has been on the decrease.  The ratio of missing LGVs to the overall missing vehicles has climbed up to a new high of 33 per cent in year 2008 as compared to only 30 per cent in year 2007 and 17 per cent in 2006.  Among the missing of LGVs, Toyota Hiace is becoming more vulnerable among other missing LGVs.  The percentage of missing Toyota Hiace to the overall missing LGVs has climbed up to a new high of 79 per cent in 2008 as compared to 66 per cent in 2007 and 56 per cent in 2006.”

19.  Paragraph 9, “From the above figures and analysis it shows that the theft of LGVs is a prevalent crime among the crime of theft of vehicles.  The theft of Toyota Hiace is also a prevalent crime in 2008 and this crime is an obvious concern to the society of Hong Kong.”

20.  Mr Pan objects to the application for enhancement of sentence.  Mr Pan points out that the figures for the overall missing vehicles is decreasing which contradicts the suggestion that the number of LGVs stolen is on the increase as suggested by Mr Lee in his report.  Mr Pan suggests if the number for the overall missing vehicles is decreasing, then the number of LGVs stolen should be also decreasing.  Mr Pan also suggests that Toyota Hiace could be used as a private vehicle. 

21.  For the number of light goods vehicles stolen, the figures for year 2007 and 2008 show a modest increase.  The total number for the year 2007 was 422, for year 2008 it was 442; an increase of a little over 4 per cent.  Mr Pan submits the figures show that the number of LGVs stolen was not as prevalent as suggested by the prosecution.  Mr Pan suggests that as the total number of vehicles registered in the last three years is an unknown figure and we do not know how many LGVs were running on the road, it cannot be said theft of LGVs are on the increase.

22.  In mitigation, Mr Pan submits that the defendant pleaded guilty to the charges.  Although the defendant is not a man of clear record, the past convictions were minor in nature and are not relevant to the offence in question.  The defendant is divorced and he had received education up to Form 5.  He has no children of his own.  The defendant was living with his mother at a village in Yuen Long for all his life. 

23.  For the location where the police found the stolen vehicles, Mr Pan submits that the place was not rented by the defendant for the purpose of concealing the vehicles.  It was a genuine garage owned by the defendant’s friend.  Mr Pan submits that the defendant admitted to handling the stolen vehicles in question but the participation of the defendant was quite limited.  The involvement of the defendant did not relate to the arrangements for the licence plates or the registration documents.  In fact the defendant had told the police that he had paid no attention to the licence plates and the copied ID documents. 

24.  Mr Pan submits that the police only found the second van on 11 September.  Further questions were asked of the defendant and the defendant admitted frankly that he had handled the second vehicle in the absence of any observation evidence by the police.  There was no fingerprint evidence as the defendant was wearing gloves and he was not seen driving the second van at all times.   Yet the defendant made very frank admissions to the police and co-operated with the police in relation to the 2nd charge.

25.  The defendant divorced his wife early this year.  The defendant had been married for 14 years.  Shortly before the defendant committed the offences in question, the defendant’s wife was complaining that the defendant was not bringing sufficient money home, and they argued over matters related to money.  In an attempt to earn some quick money the defendant committed the offences in question. 

26.  Mr Pan submits that the defendant committed the present offences out of his usual character.  He had a regular job as a driver.  The defendant promises he will never commit the offence again. 

27.  I have considered the application made by the prosecution and the statement prepared by Detective Senior Inspector Lee in support of the application.  I have also heard Mr Pan’s submission.  I agree with DSIP Lee’s report that there is an increasing trend of theft of LGVs in the past years.  Although the overall missing of vehicles has been on the decrease, one can see from the figures that the ratio of missing LGVs to the overall missing vehicles has climbed up to a new high of 33 per cent in year 2008 as compared to the figures for 2007 and 2006.

28.  It is also obvious from the information before me that Toyota Hiace is becoming more vulnerable among other missing LGVs.  In determining whether theft of LGVs and missing of Toyota Hiace is on the rise, I do not think it is necessary to know the total number of vehicles registered in the past few years, and I do not think it is necessary to know the total number of LGVs running on the road. 

29.  Taking the example of Buddha’s pines, the court in determining whether the theft of Buddha’s pines or the handling of Buddha’s pines is becoming prevalent in Hong Kong, it is not necessary to know the total number of Buddha’s pines planted in Hong Kong.  It is more relevant to know the total number of Buddha’s pines stolen or handled. 

30.  On the information before me, I am satisfied that I should attach full weight to the report prepared by DSIP Lee.  The figures and analysis show that the theft of LGVs is a prevalent crime among the crime of theft of vehicles.  The theft of Toyota Hiace is also prevalent in 2008 and the figure for January 2009 is also worrying. 

31.  In my judgment sentence should be enhanced in the light of the information placed before me. 

32.  On the facts before me, in my judgment, a term of immediate custodial sentence is the only appropriate form of punishment for the crime in question.  The offence was serious in nature.  The facts also reveal a serious case of handling of stolen goods.  From the facts of this case, one can see the defendant was acting with two unknown males and he was not acting alone.

33.  I have considered the role played by the defendant.  He was driving the missing vehicle in question and he was trying to conceal the van at the request of others.  The defendant was careful enough to wear gloves in order to avoid fingerprints being left in the vehicle.  It shows a certain degree of professionalism. 

34.  The facts show that the licence plate MH 2348 used for the first van was forged.  As for the licence plate EN 8560 for the second van, in fact the defendant owned a car with the same registration number.  The only inference I can draw from these facts is that the defendant knew about the use of EN 8560 in relation to the second van.

35.  I also note that forged vehicle registration documents for MH 2348 in relation to the first van were found on the defendant together with the ID card copy of Mr Yan.  The chassis number of the first van had been altered and a new chassis number was stamped onto the original position.  The ignition lock assemblies and lock cylinder of the door lock of the first and the second van were dissembled and could be operated freely by any objects that could fit into the keyways. 

36.  All these features show that the offences were committed with planning and sophistication.  In my view, both Charge 1 and Charge 2 call for a starting point of 3 years’  imprisonment.  In the light of the guilty pleas of the defendant, he is entitled to one-third reduction.  That will bring the sentence down to 2 years for each charge. 

37.  In my judgment in the light of the prevalence of the offence an enhancement of 50 per cent, i.e. 12 months would be appropriate in the present case.  In other words, that would bring the sentence for Charge 1 and 2 up to 3 years. 

38.  For Charge 1, I sentence the defendant to 3 years’ imprisonment for the reasons given. 

39.  For the 2nd charge, for the reasons given, I sentence the defendant to 3 years’ imprisonment.

40.  Two vehicles were involved in this case.  In my judgment, Charge 1 and Charge 2 call for partly consecutive terms bearing in mind the totality of principle.  In my judgment, a total sentence of 4 years’ imprisonment would adequately reflect the overall criminality of the matters.  To achieve this end, I order 12 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 1.  In other words, the defendant has to serve a total term of 4 years’ imprisonment.