HKSAR v. LO CHI WAI AND OTHERS

DCCC 1184/2018

[2019] HKDC 1251

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1184 OF 2018

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Reasons for Sentence

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1.  D1, D2 and D3 were jointly charged with the offence of handling stolen goods, and D1 also faced the charge of burglary and theft, while D2 and D3 were also jointly charged with another count of handling stolen goods, contrary to section 24, section 11(1)(b) and (4), and section 9 of the Theft Ordinance, Cap. 210 respectively. They all now plead guilty to all the above offences.

2.  For Charge 1, Eastime Engineering Limited (“Eastime”) was situated in an open area of Shan Ha Tsuen, Yuen Long, with some cranes inside the area.  On about 11 August 2018, the staff found that crane number 5 was not working and they then discovered that some set of five wires originally bound together and connecting crane 5 to an electric box were missing.  Another set of six wires on the ground were also lost.  The wire cost about $50,000 in total.

3.  Then on 13 August 2018, the staff also found that around 60 metres remained of the set of six wires, which cost about $30,000, and also a ladder, were also missing.

4.  For Charges 2 to 4, Kin Lee Civil Engineering Company Limited (“Kin Lee”) utilised some lots at Fung Kat Heung, Pat Heung as a warehouse with an open-air roof structures, where underneath the roof were some containers for storage use.

5.  On 13 August 2018, the staff found that half row of copper plates and some cables and nine solder wires from a container (“Container”) were missing, totally cost about $42,500. However, later on the same day, the staff noticed an iron shed nearby the site had quite some plastic bags and he recognised some missing crane wires were inside.

6.  On 13 August 2018 a Gogovan driver had picked up D1 to D3 at Fung Kat Heung, and D1 to D3 were then loading some bags of goods to the iron shed and they then also unloaded four bags of items from the van to a recycling company and sold them for about $5,200.

7.  Police obtained CCTV from the recycling company, which captured D1 to D3 selling items to the recycling company.  They were then all subsequently arrested, where D1 admitted being called upon to help move the wires and got some money after the sale.  Police also seized some items from the van and also recovered some items from the recycling company.

8.  The staff of Eastime later recognised seven sets of wires and two sets of six wires and one wire connector belonging to the company.  All items found missing totally cost about $80,000, but in the light of the recovery they only lost about $25,000.

9.  And for the staff from Kin Lee they also recognised some solder wires, cables and copper plates already sold to the recycling company also belonging to Kin Lee, and the total loss was about $42,500. 

10.  All defendants now pleaded guilty for dishonestly receiving the stolen items, namely seven sets of five wires, two sets of six wires, and one connector belonging to Eastime (Charge 1).

11.  D1 also pleaded guilty for having entered Kin Lee as trespasser and stole nine solder wires inside (Charge 2). 

12.  He also stole half rows of copper plates, one five-core cables, one four-core cables, and one solder wires (Charge 3).

13.  D2 and D3 also now admitted having assisted in retention, removal, disposal or realisation of the items sold to the recycling company and knowing them to be stolen property (Charge 4).

14.  D2 and D3 are Form 8 holders and D3 had committed above offences while in police and court bail respectively.

15.  D1 aged 42.  He had 12 previous criminal convictions, including two counts of theft in 1996 and 1999 and robbery in 2013, and lastly in 2018 he was sentenced to 3 months’ imprisonment for possession of dangerous drugs.

16.  D2 aged 30.  He had 4 previous criminal convictions, including going equipped for stealing in 2015, where he was sentenced to 9 months’ imprisonment, and lastly in 2016, 4 months’ imprisonment for possession of dangerous drugs.

17.  D3 aged 34.  He had 2 previous criminal convictions and lastly sentenced in August 2018 of 4 months’ imprisonment for possession of dangerous drugs, where he had committed in June 2018, and by committing the present offences he had in breach of the police bail granted.

18.  Mr Yuen for D1 submitted that the offences were committed without any sophisticated planning nor was there any use of equipment and the properties stolen were relatively not very much of value.  Some goods were already damaged when selling to recycling company.  Nonetheless, D1 wished to make compensation to the victim for all he had in cash about $2,000-odd found on him.  Mr Yuen further submitted that D1 was not the ringleader and he was just foolishly engaged to steal and handle all these stolen properties, and he now hoped for a lenient sentence.

19.  Mr Sherry for D2 submitted that D2 had pleaded guilty at the earliest opportunity and, as a Form 8 holder, D2 was unemployed.  Mr Sherry further submitted that the total loss was just about $25,000 and $42,500 respectively, which a lower range of imprisonment should be adopted.  It is further submitted that given the nature and particulars of the offences which may not really blacken the reputation issue in Hong Kong and that therefore no or a lower range of enhancement of imprisonment should be adopted.

20.  Mr Bullett for D3 submitted that D3 is a Nepali and had been in Hong Kong since 2009 and now is a Form 8 holder.  It is submitted that D3’s involvement was unplanned and just helped in loading some undifferentiated wires.  It is further submitted that D3 had already completed 4 months’ imprisonment for possession of dangerous drugs in November 2018 and that now, as no part of it could be made concurrent and had both cases could be dealt with together, so that although D3 committed the present offences while in breach of the police bail, it is hoped that all these matters could be offset.  After consideration, I do agree with this contention.

21.  Handling stolen goods is a serious offence.  The Court of Appeal in HKSAR v Xiao Wei [2003] 3 HKLRD 1063, had adopted an English Court of Appeal case, R v Bernard Webbe [2002] 1 Cr App R (S) 22, which stated some factors to be considered when sentencing, and when applying in the present case, the underlying offence is burglary and theft, which were close to the handler, and these offences were serious.  The value of the property was about $80,000 and $42,500 respectively, which were moderate in value.  The handling was not that sophisticated and the level of profit was low, just about $5,000-odd after sale to the recycling company, and that there was no violence nor abuse of power adopted in this case. 

22.  In Xiao Wei, that case concerned handling a watch, valued about $11,000, stolen in a domestic burglary case.  The court finally adopted a starting point of 18 months’ imprisonment.  And for the present case, for Charges 1 and 4, the respective value of property involved was about $80,000 and $42,500, and after recovery the company loss was about $25,000 and $42,500.  The facts were serious, where all defendants or at least both defendants were acting together, committing the present offences.

23.  However, now that all defendants had pleaded guilty, saving court’s cost and time and they were all more than willing to make compensation, although they had very little money in hand, only $2,000-odd or $1,000-odd respectively for D2 and D3, but in any event, it showed their remorse.

24.  After consideration, for Charges 1 and 4, I would respectively adopt a starting point of 15 months’ imprisonment and 12 months’ imprisonment.  That be respectively reduced to 10 months’ and 8 months’ imprisonment after guilty plea.  And for Charges 2 and 3 of the burglary and theft case, on non-domestic premises, 2½ years be adopted as starting point and 12 months be adopted for the theft charge.  These be reduced to 20 months’ and 8 months’ imprisonment respectively after guilty plea.

25.  Lastly, on totality principle, I consider that all these offences were committed almost at one go or as a series of events, and I consider that most sentence could be ordered concurrently.

26.  For D1:

(1) 1st charge, 10 months’ imprisonment;

(2) 2nd charge, 20 months’ imprisonment;

(3) 3rd charge, 8 months’ imprisonment;

(4) 2nd and 3rd charge be made concurrent;

(5) and for the 1st charge, only 2 months be made consecutive to the 2nd and the 3rd charge.

So all three offences, D1 be sentenced to 22 months’ imprisonment altogether.

27.  And for D2 and D3:

(1) 1st charge, 10 months’ imprisonment;

(2) 4th charge, 8 months’ imprisonment;

(3) These two offences, sentence be made concurrent;

(4) but as both defendants are Form 8 holders, I consider that an enhancement of 1 month be appropriately made.

So altogether, for D2 and D3, both be respectively sentenced to 11 months’ imprisonment respectively.