HKSAR v. NG KONG FAI AND OTHERS

DCCC 743/2023

[2024] HKDC 1195

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 743 OF 2023

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REASONS FOR SENTENCE

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1.  D1 to D4 face a Charge Sheet containing 8 charges as follows.

2.  Charge 1 against D1 & D2 only is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D2, on 15 December 2022, in Hong Kong, together with other persons known as “Sai Lo” and “Tai Tung”, stole a chose in action, namely a debt in the sum of $20,000 Hong Kong currency owed by The Hongkong and Shanghai Banking Corporation Limited in account numbered 004-484-228812-001 to Kam Lung Seafood Restaurant Limited (“Kam Lung”), property belonging to Kam Lung.

3.  Charge 2 against D1 & D2 only is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D2, on the same day, in Hong Kong, together with a person known as “Sai Lo”, dishonestly received certain stolen goods, namely one cheque, property belonging to Kam Lung, knowing or believing the same to be stolen goods.

4.  Charge 3 against D1 & D3 only is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D3, on the same day, in Hong Kong, together with other persons known as “Sai Lo” and “Tai Tung”, stole a chose in action, namely a debt in the sum of $50,000 Hong Kong currency owed by The Hong Kong and Shanghai Banking Corporation Limited in the same account to Kam Lung, property belonging to Kam Lung.

5.  Charge 4 against D1 & D3 only is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D3, on the same day, in Hong Kong, together with a person known as “Sai Lo”, dishonestly received certain stolen goods, namely one cheque, property belonging to Kam Lung, knowing or believing the same to be stolen goods.

6.  Charge 5 against D1 & D4 only is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D4, on the same day, in Hong Kong, together with other persons known as “Sai Lo” and “Tai Tung”, stole a chose in action, namely a debt in the sum of $50,000 Hong Kong currency owed by The Hong Kong and Shanghai Banking Corporation Limited in the same account to Kam Lung, property belonging to Kam Lung.

7.  Charge 6 against D1 & D4 only is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D4, on the same day, in Hong Kong, together with a person known as “Sai Lo”, dishonestly received certain stolen goods, namely one cheque, property belonging to Kam Lung, knowing or believing the same to be stolen goods.

8.  Charge 7 against D1 & D5[1] only is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D5, on the same day, in Hong Kong, together with a person known as “Tai Tung”, stole a chose in action, namely a debt in the sum of $20,000 Hong Kong currency owed by The Hong Kong and Shanghai Banking Corporation Limited in the same account to Kam Lung, property belonging to Kam Lung.

9.  Charge 8 against D1 & D5 only is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D5, on the same day, in Hong Kong, dishonestly received certain stolen goods, namely one cheque, property belonging to Kam Lung, knowing or believing the same to be stolen goods.

10.  D1 has been absent from court twice on medical grounds.  So only D2 to D4 have appeared before me for the purpose of plea.

11.  D2 pleaded not guilty to Charge 1 but guilty to Charge 2.  I ordered that Charge 1 insofar as D2 is concerned be left on court file not to be proceeded with without leave of the court or the Court of Appeal pursuant to prosecution’s application.

12.  D3 pleaded not guilty to Charge 3 but guilty to Charge 4.  I ordered that Charge 3 insofar as D3 is concerned be left on court file not to be proceeded with without leave of the court or the Court of Appeal pursuant to prosecution’s application.

13.  D4 pleaded not guilty to Charge 5 but guilty to Charge 6.  I ordered that Charge 5 insofar as D4 is concerned be left on court file not to be proceeded with without leave of the court or the Court of Appeal pursuant to prosecution’s application.

Facts admitted by D2 to D4

14.  On 15 December 2022 at about 3:30 pm, it was discovered that there were signs of ransacking in Kam Lung Seafood Restaurant; that cash of HK$25,000 was missing from the safe and several bottles of wine were missing from the cabinet.  Four pre-signed blank cheques numbered 051224 (“Cheque 1”), 051225 (“Cheque 2”), 051226 (“Cheque 3”)  and 051227 (“Cheque 4”)  were stolen from the cheque book of Kam Lung Seafood Restaurant Limited issued by HSBC for the account numbered 004-484-228812-001 (the “HSBC Account”)  placed inside a drawer.

15.  Cheques 1-4 were all cashed on 15 December 2022:

(a)  At 9:01 am, D2 cashed Cheque 3 in the sum of HK$20,000 in the HSBC branch at no 378 of Nathan Road (Charge 2);

(b)  At 9:02 am, D5 cashed Cheque 4 in the sum of HK$20,000 in the HSBC branch at no 378 of Nathan Road (Charges 7 & 8);

(c)  At 9:33 am, D3 cashed Cheque 1 in the sum of HK$50,000 in the HSBC branch at no 673 of Nathan Road (Charge 4); and

(d)  At 9:51 am, D4 cashed Cheque 2 in the sum of HK$50,000 in the HSBC branch at no 71 of Waterloo Road (Charge 6).

16.  CCTV of Eaton Hotel at no 380 of Nathan Road captured that on 15 December 2022:

(a)  At around 5:35 am, D1 and D5 appeared at Eaton hotel together;

(b)  At around 8:35 am, D1-2 and D5 entered a hotel room on 11/F;

(c)  At around 8:46 am, a person known as “Sai Lo” entered the same hotel room on 11/F;

(d)  At around 8:53 am, D1-2, D5 and “Sai Lo” left the hotel room; and

(e)  At around 8:55 am, D1-2, D5 and “Sai Lo” left Eaton Hotel.

17.  CCTV of the HSBC branch at no 378 of Nathan Road captured that on 15 December 2022:

(a)  At around 9:01 am, D2 cashed a cheque (ie Cheque 3)  at a bank counter (Charge 2); and

(b)  At around 9:02 am, D5 cashed a cheque (ie Cheque 4)  at another bank counter (Charges 7 & 8).

18.  CCTV of Eaton Hotel captured that at around 9:06 am, D1-2 and D5 walked past the hotel together (Charges 2 & 8).

19.  CCTV of the HSBC branch at no 673 of Nathan Road captured that on 15 December 2022:

(a)  At around 9:15 am, D3 and “Sai Lo” appeared at the bank;

(b)  At around 9:30 am, D1 showed up at the bank;

(c)  At around 9:33 am, D3 cashed a cheque (ie Cheque 1)  at the bank counter (Charge 4); and

(d)  At around 9:35 am, D1, D3 and “Sai Lo” left the bank (Charge 3).

20.  CCTV of the HSBC branch at no 71 of Waterloo Road captured that on 15 December 2022, at around 9:51 am, D4 cashed a cheque (ie Cheque 2)  at the bank counter and “Sai Lo” waited for him inside the bank (Charge 6).

Arrest and caution of D2

21.  D2 was arrested on 30 December 2022.  A VRI was conducted with D2 on 30 December 2022.  Under caution, he stated that:

(a)  On 15 December 2022, he and the others gathered at Eaton Hotel to eat. He also intended to find “Fei Fai” to borrow some money;

(b)  A while later, an unknown male (ie Sai Lo)  met up with them at the hotel. The unknown male (Sai Lo)  claimed that someone repaid him with cheques, but he did not have a HKID card to cash the cheques;

(c)  As the unknown male (Sai Lo)  promised to reward him, he agreed to help the male to cash a cheque. He gave his HKID card to the male and the male wrote his name on the cheque (ie Cheque 3);

(d)  After cashing the cheque (ie Cheque 3)  at the bank (ie HSBC at no 378 of Nathan Road), he gave HK$20,000 to the unknown male on a taxi. In return, the male gave him HK$2,000; (Charge 2)

(e)  He spent the HK$2,000 and did not repay the unknown male (Sai Lo);

(f)  He met the unknown male (Sai Lo)  one or two times in the past;

(g)  Although he did not really know the unknown male (Sai Lo), he agreed to help the male (Sai Lo)  as he needed money; and

(h)  He did not ask the unknown male (Sai Lo)  about the origin of the cheque (Cheque 3)  and he did not find it necessary to do so.

22.  When shown the relevant CCTV screen captures during the VRI, D2 confirmed that the person known as “Sai Lo” was the unknown male he was referring to.

Arrest and caution of D3

23.  D3 was arrested on 31 December 2022.  A VRI was conducted with D3 on 31 December 2022.  Under caution, he stated that:

(a)  On 15 December 2022 at around 9 am, he received a phone call from “Sai Lo”. “Sai Lo” asked him to help cash a cheque at a HSBC branch in Mong Kok (ie no 673 of Nathan Road);

(b)  After meeting up with “Sai Lo” outside the HSBC branch, “Sai Lo” gave him a cheque of HK$50,000 (ie Cheque 1). He filled in his English name on the cheque (Cheque 1)  and cashed it; (Charge 4)

(c)  Afterwards, he handed over cash of HK$50,000 to “Sai Lo”. In return, “Sai Lo” gave him HK$10,000. He did not know why “Sai Lo” gave him the money and “Sai Lo” did not explain what the money was for;

(d)  He spent all the money on gambling; and

(e)  He did not know the origin of the cheque (Cheque 1)  and he did not ask “Sai Lo” about it.

Arrest and caution of D4

24.  D4 was arrested on 5 January 2023.  A total of two VRIs were conducted with D4.  In the first VRI conducted with D4 on 5 January 2023, D4 stated that:

(a)  He saw a job advertisement on a Facebook page named “quick money group”. He then reached out to a “Go Lo” and sent “Go Lo” a copy of his HKID card;

(b)  “Go Lo” asked to meet him on 15 December 2022 at 9:00 am at Waterloo Road, Mong Kok. “Go Lo” did not explain the job nature to him. He only learned of it when he met “Go Lo” face to face;

(c)  Upon meeting “Go Lo”, “Go Lo” gave him a cheque of HK$50,000 (ie Cheque 2). The cheque was already completely filled in. He cashed the cheque (Cheque 2)  in the HSBC branch (ie the branch at no 71 of Waterloo Road)  and handed over cash of HK$50,000 to “Go Lo”. In return, “Go Lo” gave him HK$3,000; (Charge 6)

(d)  He spent the HK$3,000 on his daily expenses;

(e)  He suspected why “Go Lo” did not cash the cheque himself, but since the reward for the job was substantial, he did not think much about it; and

(f)  He had no knowledge of the origin of the cheque (Cheque 2).

25.  In the second VRI conducted on 6 January 2023, when asked about his WhatsApp conversation with a “Sai Lo 2”, D4 explained that “Sai Lo 2” was a male whom he referred to as “Sai Lo”.  D4 clarified that it was actually “Sai Lo” who instructed him to cash the cheque in Mong Kok.  He knew “Sai Lo” for some time and they would chat about random stuff on WhatsApp.  On 15 December 2022, “Sai Lo” informed him of a job opportunity via WhatsApp.  He did not know that the job was about cashing a cheque until he met “Sai Lo” face to face.

WhatsApp between D4 and “Sai Lo”

26.  According to the WhatsApp conversation between D4 and “Sai Lo” on 15 December 2022,

(a)  At 9:25 am, “Sai Lo” said to D4, “how come you are late for work … others have completed two [tasks]”;

(b)  At 9:28 am, “Sai Lo” said to D4, “I will give you a cheque later. You should go to the counter, present the cheque and your ID card to the staff to make withdrawal”;

(c)  At 9:29 am, “Sai Lo” said to D4, “if [the staff] ask you about the purpose of making the withdrawal, you should say that you are getting your salary. If [the staff] ask you about the company name, say Kam Lung Seafood Restaurant”; and

(d)  At 9:30 am, D4 replied “good”.

Criminal records

27.  D2 has 11 previous convictions 7 of which were related to offences of dishonesty (last one recorded in 2020).

28.  D3 has 14 previous convictions 3 of which were related to offences of dishonesty (last one recorded in 2019).

29.  D4 has 5 previous convictions one of which (recorded in 2002)  was related to an offence of dishonesty.

Antecedents

30.  D2 is aged 35 (34 at the time of the offence), educated to higher secondary school level.  He worked as a bell boy.  He lived at a hotel.

31.  D3 is aged 42 (41 at the time of the offence), educated to lower secondary level, unemployed.  He lived in Kwong Yuen Estate.

32.  D4 is aged 37 (35 at the time of the offence), educated to lower secondary school level.  He was a warehouse keeper.  He lived in Sheung Tak Estate.

Mitigation

D2

33.  Ms Lorinda Lau of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

34.  D2 pleaded guilty to Charge 2 of Handling.

35.  D2 was born in Hong Kong and is now 35 years old, single and completed secondary education in Hong Kong.  He worked as a bell boy shortly before being arrested making about HK$18,000 per month.

36.  D2 did have various criminal records and a few of them involves dishonesty, albeit that this is the first time he was being convicted of handling stolen property.

37.  He begged this court not to enhance his sentence.

38.  D2 committed the said offence because it was close to year end, that he was fired and was short of money.

39.  The amount of the cheque he cashed was HK$20,000 and he was rewarded by HK$2,000, that he used that to pay for part of his rental.

40.  Although D2 somehow believed that the cheque might have been stolen, he did not know for sure, nor did he try to find out.  He certainly did not know how the unknown person obtain the cheque.

41.  He was arrested on 30 December 2022.  Despite he was given bail, he was not able to come up with sufficient bail money.  Hence, despite given bail, D2 has been detained since 30 December 2022.

42.  Ms Lau referred to HKSAR v Xiao Wei [2003] 3 HKLRD 1063 in which the Court of Appeal took into account the 9 aggravating factors considered in R v Webbe [2].

43.  In the present case, D2 frankly admitted to the police when under arrest.

44.  Due to financial difficulty, he committed these offences in order to resolve his immediate financial problem.

45.  He is extremely remorseful for what he did.

46.  The commission of the offence does not involve a sophisticated scheme.

47.  Due to the early plea, this court is urged to grant D2 the full 1/3 discount.

48.  Taking into consideration of his early plea, the value involved, the amount of rewards he earned, the way the offence was committed, D2 begged this court to temper justice with mercy and sentenced him leniently so that he can rejoin the society as soon as possible.  With the facts very similar to that of HKSAR v Xiao Wei, a starting of about 18 months may sufficiently reflect his culpability so that he may be allowed to be released as soon as possible.

49.  Finally, Ms Lau echoed what Ms Ling for D4 submitted and urged the court to consider a sentence that will mitigate the harsh effect of Fu Man Kit and Superintendent of Tai Lam Correctional Institution, FAMV 33/2022 and CACV 459/2019, relating to the interpretation of Rule 69(1)  of the Prison Rules, Cap 234A.

D3

50.  Mr Stanley Lau of counsel assigned by the Director of Legal Aid mitigated on behalf of D3.  The following is a summary of the mitigation submissions.

51.  During hearing on 28 November 2023, the court granted bail to D3 with some conditions (including the condition of payment of cash in the sum of HK$10,000)  imposed.

52.  However, D3 was unable to comply with the condition of payment of cash bail.  Therefore, D3 was still remanded in jail custody.

53.  D3 is 42 years old.  He is divorced person.  He received education up to F1 level.  He has 2 daughters, who are not under his custody, are 8 and 15 years old respectively.

54.  At the time of offence, D3 was unemployed, and was receiving financial support via Comprehensive Social Security Assistance.  He is basically healthy, and does not require any regular medical follow up.

55.  D3 has 13 items (sic)  of criminal records, which involved a total of 16 counts (sic)  of offences.  Out of those 16 counts (sic)  of offences, there is no similar record with the present offence.  Having said that, offences related to dishonesty (theft (on 13 April 2015 and 1 March 2019)  and burglary (15 September 2015))  were noted in his criminal record.

56.  D3 is very remorseful for his wrongful conduct.  He promises that he will strictly comply with the law and will not commit any further offence in the future.  He will also contribute himself more to the society and to assist those in need.

57.  The maximum penalty for Handling offence is 14 years’ imprisonment.

58.  There is no sentencing tariff for offence of handling stolen goods because of the wide variety of the circumstances in each individual case: HKSAR v Yau Pak Chun (transliteration), CACC 211/2006.  There, the Court of Appeal again referred to R v Webbe and the 9 aggravating factors identified therein.

59.  It is submitted that in the present case, there is no aggravating factor applicable to D3.

60.  Mr Lau also referred to two District Court cases namely HKSAR v Wong Pui Hung (transliteration), DCCC 214/2023, and HKSAR v Ho Wai Mun (transliteration), DCCC 21 & 497/2023 (Consolidated).

61.  Mr Lau invites the court, in view of the overall circumstances of the present case, to adopt a starting point of imprisonment of less than 24 months for D3.

62.  Mr Lau applied on behalf of D3 for a change of the bail terms so D3 could meet them and be released pending sentence [granted].

D4

63.  Ms Vickie Ling of counsel assigned by the Director of Legal Aid mitigated on behalf of D4.  The following is a summary of the mitigation submissions.

64.  D4 pleaded guilty to Charge 6 of Handling.

65.  D4 was born in April 1987 and is now aged 37.  He is divorced and has no contact with his ex-wife.  He lives with his housewife mother in public housing in Tseung Kwan O, while his two other elder siblings live apart.  He received education in Hong Kong up to lower Secondary level.

66.  Before the offence, D4 worked as a casual worker in a mahjong palour in Yau Ma Tei.  When he was employed, he earned about $15,000 per month.

67.  Since around 2020, the mahjong palour was forced to suspend business due to the pandemic, thereby badly affected the livelihood of D4.

68.  Prior to the current offence, the previous similar conviction (Robbery)  of D4 was recorded in 2002, ie, more than 20 years ago.  His last conviction before this case related to a non-similar offence in 2018.  He was released from incarceration in 2019.  Before the current offence, he had kept himself out of criminal activities for more than 3 years.

69.  D4 had recently found a new job as transportation worker, earning daily wages of $1,200.

70.  There is no sentencing tariff for the offence of Handling Stolen Goods.

71.  In R v Chan Wing Kwan & Anor (CACC 121/1985), the Court of Appeal set out in the last paragraph on page 8 that:

“An examination of a number of other cases of handling of stolen goods shows that the normal bracket of sentences runs between 2 and 4 years. Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled.”

72.  As the common law developed, in fact the Hong Kong higher courts had in various cases indicated that a starting point below 2 years for the handling offence is appropriate.

73.  Ms Ling again referred to the English case of R v Webbe and the 9 aggravating factors identified therein.

74.  There is no evidence to show D4 was in any way related with any of the other defendants in this case.  There is also no evidence that D4 knew what happened in Kam Lung Seafood Restaurant the night before.

75.  At the material time, the mahjong palour where D4 worked was forced to suspend business since the pandemic.  D4’s livelihood was badly affected.

76.  With a hope of earning some quick money, D4 answered recruitment on internet and came to know “Sai Lo”.  “Sai Lo” used WhatsApp to communicate with D4.

77.  On the offence date, D4 only followed the instructions of “Sai Lo” to cash in the cheque.

78.  After cashing in the cheque, D4 gave the money to “Sai Lo”, who in return gave D4 $3,000 as remuneration which D4 spent on the same day.

79.  D4 only played a relatively minor role in the offence.

80.  It is respectfully submitted that none of the aggravating factors stipulated in R v Webbe existed for D4.

81.  His previous similar (dishonesty)  conviction was in 2002.  D4 respectfully invites the Court not to regard D4 as a repeated offender for the current offence.

82.  He has been working with gainful employment and hopes to be able to lead a law-abiding and productive life.

83.  The Defence respectfully invite and urge the court to adopt not more than 18 months as the starting point for D4.  D4 pleaded guilty at an early stage.  The law allows him to have 1/3 sentencing discount.

84.  D4 was arrested on 5 January 2023 and was remanded for about 9.5 months until some time in October 2023 before he was released on bail.

85.  D4 begs for mercy and leniency from the court as far as possible.

86.  Finally, Ms Ling referred to Fu Man Kit and Superintendent of Tai Lam Correctional Institution, FAMV 33/2022 and CACV 459/2019, relating to the interpretation of Rule 69(1)  of the Prison Rules, Cap 234A, and urged the court to consider passing a sentence that will mitigate the harsh effects of the case decided at the two levels of court.

Sentence

87.  I have had regard to all the sentencing cases referred to by counsel.

88.  All of the offences subject of the charges were perpetrated by more than one person.  The aggravating factor of joint enterprise applies to all defendants.

89.  There is no evidence that D2 to D4 were the masterminds of their respective Handling offences.

90.  For the Handling charges against D2 to D4, I adopt a starting point of 18 months’ imprisonment bearing in mind the amount on the cheques and the rewards these defendants took for their roles in the respective offences.

91.  Because of the aggravating factor of joint enterprise, all the starting points are increased by 3 months to ones of 21 months.

92.  D2 has a particularly bad record of dishonesty-related convictions.  I will have to treat him as a repeated offender.  His starting point for Charge 2 is further increased by 3 months to 24 months.  Before doing so, I have considered the principle of totality as applied to D2.

93.  All the defendants pleaded guilty in good time.  They shall all be entitled to the customary 1/3 discount in sentence.  For each of the defendants, I can see no other mitigating factors of weight to justify another sentence reduction.

94.  Regarding the effect of Rule 69(1)  of the Prison Rules, Cap 234A, I can do no better than recite para 33 (part)  of the Court of Appeal’s Reasons for Judgment (delivered by Barma JA)  in Fu Man Kit (supra)  by which this court is bound:

“To my mind, it is clear that the effect of rule 69(1)  and its proviso is to provide for prisoners who have an actual term to serve to serve their actual term if it is less than one month, and at least 31 days (one month)  if it is longer than that.”

95.  Upon an application for leave to appeal the above judgment, the Appeal Committee of the Court of Final Appeal (Ribeiro PJ delivering the Reasons for Determination)  examined the Court of Appeal judgment and determined that Barma JA was correct in ruling that Rule 69(1)  “shall not permit the reduction of the actual term to less than 31 days”.

96.  It is clear from the above judgment/determination that the legislative intent is such that the mechanism of remission under the Prison Rules will not and should not be allowed to reduce an actual term (ie sentence pronounced by court minus period in remand and law enforcement custody)  to less than 31 days.

97.  So clear is the legislative intent that this court must defer to it.  I therefore will not accede to the invitation of D2’s and D4’s counsel to impose an out-of-the-ordinary sentence that will circumvent that legislative intent.

98.  If the Executive sees a need to change the relevant rule in the future, they can always take steps towards that end.

(D2 to D4, please stand)

99.  On Charge 2, the sentence for D2 is 16 months’ imprisonment.

100.  On Charge 4, the sentence for D3 is 14 months’ imprisonment.

101.  On Charge 6, the sentence for D4 is 14 months’ imprisonment.