HKSAR v. CHAN WAI LEUNG AND OTHERS

DCCC923/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 923 OF 2011

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Reasons for Sentence

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1. All defendants have pleaded guilty today. The 1st defendant has pleaded guilty to one charge of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210. The 2nd and 3rd defendant have pleaded guilty to one charge, a joint charge of handling stolen goods, contrary to section 24(1) and (2) of the same ordinance.

2. I accept in this case that the 1st defendant did not know the 2nd and 3rd defendant, and vice versa.  There are three wanted persons involved in the theft that have not been arrested yet. 

3. In the facts it can be seen that the 1st defendant has committed  a breach of trust where items are worth over $8 million.  He explains that he participated in the theft at the request of a Mr Wong Kam-kuen - I will call WP1 - and participated reluctantly.  The 1st defendant explained that when he was reluctant to participate he was threatened by this person with physical violence.  I will say from the outset that I cannot place much weight on this as a factor in mitigation because there is no evidence it was a serious threat, or that he felt he could not go through with it. 

4. What happened was that this defendant, the 1st defendant, was released from his last sentence in March this year, and not long after, in April, managed to secure a driving job, and was obviously trusted to transport and deliver valuable items.  In this case it was Sony Ericsson mobile telephones and accessories.  One month after he started this job WP1 suggested or proposed to him that they steal some valuable electronic items. 

5. The facts are that the 1st defendant agreed, and on the night before this offence, 20 June, he told WP1 and WP2 that he would be, on the next day, delivering mobile telephones.  So clearly there was forward planning in this theft.

6. The 1st defendant says that the next morning, the morning of the offence, WP1 contacted him, and he got cold feet and tried to persuade WP1 to not go through with this plan.  The 1st defendant told the police that WP1 spoke in a threatening manner and at the same time offered him $50,000 reward for going through with the plan.

7. On that morning after the 1st defendant made his first delivery he contacted WP1 and picked him up along with WP3.  He drove the vehicle to a village house in Ta Kwu Ling to the 2nd defendant’s home that was rented from the 3rd defendant.  The 1st defendant stayed in the vehicle whilst WP1, 3 and others unloaded the mobile phones from his truck.  The 2nd defendant assisted these wanted persons to move the boxes or the mobile phones into his home.  The 1st defendant was then tied up and driven to a car park and assaulted to make it look like a robbery.  It is clear that not long after the police arrived and were involved they cottoned on to the 1st defendant’s offence and he confessed that it was in reality a theft.  Later that day he took the police back to that village house where almost all the items were recovered. 

8. The 2nd defendant was arrested the next day, on 22 June, and the 3rd defendant was arrested on the same day, also on 22 June, but some time later.  The stolen items that were recovered have been valued at $8,246,000-odd. Of all the items that were stolen, two mobile phones remain missing, valued at $6,000-odd. 

9. I have been told that the 1st defendant is not a man of clear record.  He has five previous convictions, one for theft that he was convicted for in 2008.  His last conviction was a trafficking in dangerous drugs conviction in 2009.  And, as I have said earlier, he was released from prison in March this year. 

10. The 2nd defendant is a man of clear record.  The 3rd defendant has one previous, but it was for common assault, completely different nature, and some five years ago. 

11. I have heard full mitigation on behalf of all defendants.  The 1st and 2nd defendant are single, whereas the 3rd defendant is older and a family man.  I have received from each defendant letters of mitigation.  And for the 2nd and 3rd defendant there are letters of support, and from family, friends, employer, and even so far as previous teachers, for the 2nd defendant.  In this case each defendant’s best mitigation is their plea of guilty today.  They have shown remorse.

12. As I have said, the 1st defendant has committed a breach of trust.  He was employed as a driver and entrusted with valuable items.  Where theft offences involve a breach of trust I will look at the authority of Cheung Mee Kiu [2008] 1 HKC 113.  A Court of Appeal case sets out a tariff for breach of trust cases.  I would accept the 1st defendant was not the mastermind, but his role was vital, and without him this crime would not have occurred.  The 1st defendant must have been very aware of the seriousness of the offence and the value of the goods that he was entrusted with.  I am sure he was re-motivated by a reward of $50,000, which is a substantial amount of money.  I accept that ultimately he did not receive it.

13. I also take into account he did cooperate with the police, making a full admission not long after he was discovered in his vehicle, and ultimately led the police back to all the items.  As all the items were recovered there is very little loss to the victim. 

14. In that authority Cheung Mee Kiu, where the theft involves between HK$3 million and HK$15 million, courts should consider a 5 to 9 year term of imprisonment appropriate.  Where the case are valued over $8 million, the court ought to be considering a 6½ year starting point appropriate. 

15. I turn to 2nd and 3rd defendant, Charge 2.  I have heard the facts of the handling and listened to full mitigation.  Both clearly have acted out of character and out of stupidity, and I am sure an element of greed because there would have been, certainly in the 2nd defendant’s case, a reward for storing the goods. 

16. And, as I have said, I have heard letters of mitigation from family, friends and employers, churchgoers, that all put forward the mitigation that they have acted out of character, collectively have said the defendants have acted out of character.  As a result of that and the facts, I accept that they did not, the 2nd and 3rd defendant did not know the nature of the goods until they were delivered to this village house.  It seems from the summary of facts that both gave the same version of events, and it is this consistent version that gives their version credibility. 

17. As I accepted that they did not know the nature of the goods until they were delivered I will accept that they were not part of the scheme or conspiracy, or had knowledge of the theft.  I also accept that they did not know the origin of the goods or that it was a breach of trust scenario that led to the commission of the theft offence.  There is no evidence to suggest otherwise.

18. Where a handling stolen goods offence is concerned there is no tariff.  However, it has been said that a handler’s role should be no different to that of the thief’s and sentence should not be any less.  The rationale behind that is that handlers have facilitated the crime and provided assistance to a thief.  However, that is not a straightjacket approach.  There will be scenarios where this approach may not be necessary or even fair to strictly apply.  Each case must be considered on or for its own facts. 

19. I have considered the authority of HKSAR v Xiao Wei [2004] 1 HKC 520 at page 524, which discusses and lists out what can be relevant factors to sentencing, mainly what can be aggravating factors.  I do not intend to repeat them, but in this case none apply here except the particular seriousness in the primary offence of theft.  But as I have said, I accept the 2nd and 3rd defendant were not aware of that seriousness until the goods arrived and were being unloaded or were unloaded. 

20. It is at this point that they make their mistake.  They condoned the primary offence.  They turned a blind eye.  The 2nd defendant even took a reward.  They should have turned away WP1 to 3 and others, as well as the goods.  From what I see in the facts and as put forward in mitigation, they discussed the stolen goods there and then between them.  They made the decision to take no positive action, and hence committed this offence.  I accept that they may have said to the wanted persons that they had to take the items away within a few days so as to avoid any trouble. 

21. For this handling charge I will treat the facts as not the most serious case for a charge of this nature despite the value of the goods.  I also take into account the 2nd defendant gave the police telephone details of wanted persons, leading the police to have knowledge of the full names of at least two wanted persons. 

22. I intend to accept mitigation of the 2nd and 3rd defendant, and I will depart from the general principle that thieves and handlers of these goods stolen should be treated similarly where sentence is concerned.  In this case the 1st defendant’s role is much more serious, in my view, than the 2nd and 3rd defendant’s role. 

23. Defendants, please stand up. 

24. 1st defendant, I will accordingly take into account facts of the case, your role, the value of the items, the fact that it is a clear breach of trust.  I will also take into account your plea, you cooperation with the police and mitigation put forward.  I intend to take a 5 year 6 months starting point, and I will give you a discount of one-third for your plea of guilty today.  For this offence, Charge 1, you are sentenced to 3 years and 8 months.  Do you understand?

25. 2nd and 3rd defendant, I will take into account mitigation, which I have said I accept almost in its entirety, your pleas, previous good character, and although the 3rd defendant has one conviction it’s completely different.  I will also take into account how you came to condone and agree to store these stolen items in that village house.  It is relevant that I accept you had no participation or knowledge of the origins of the goods or the theft.  More importantly, I accept you did not know you had agreed to store or handle stolen goods until they arrived at the village house.  One can say this is an unusual case where your participation is concerned.

26. For both the 2nd and the 3rd defendant I will treat similarly, and I will take a 21-month starting point.  You will have a discount of 7 months, that is one-third, for your pleas of guilty.  For Charge 2, both the 2nd and the 3rd defendant are sentenced ultimately to 14 months’ imprisonment.