HKSAR v. YU CHI KIT

DCCC 122/2022

[2024] HKDC 676

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 122 OF 2022

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REASONS FOR SENTENCE

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D3 faces a charge of "Handling stolen goods" (Charge 12)  and a charge of "Dealing with property known or believed to represent proceeds of an indictable offence" (Charge 18; alternative to Charge 12). After trial, he was found not guilty of Charge 12 but guilty of Charge 18.

2.  There are 2 more defendants in this case (D1 and D2).  They have been dealt with by different judges.  This trial concerns D3 only.

3.  I have summarized the evidence in my Reasons for Verdict.

4.  In gist, a BMW brand private car VW7200 ("the Car")  was advertised for rental on e-platforms by a company.  On 12 May 2021, a purported customer deposited a cheque, which was later dishonoured, into the designated bank account and took delivery of the Car.  The Police was alerted.  The Car hence became stolen property.  Its value was $45,000.

5.  About 9:55 a.m. on 29 July 2021, whilst on patrol, PC 13450 saw the Car parked at Wang Mau Street in Kowloon Bay.  PC 13450 was informed by Console that it was a wanted vehicle.  He guarded the Car together with PC 21589.  About noon on the same day, D3 was seen walking towards the Car.  He took a key fob out of his right trouser pocket and was about to unlock the doors of the Car.  PC 21589 intercepted D3 and asked him to hand over the key fob.  He cautioned D3 for "Fraud".  D3 said "Ah Fai lent the car to me.  I don't know what happened."

6.  The prosecution sought to rely on the contents of D3's video recorded interview (VRI)  contained in Exhibit P9.  Mr. McGuinniety objected to its admissibility on the basis of involuntariness.  This special issue was dealt with by way of the alternative procedure.  I ruled Exhibit P9 admissible.

7.  D3 elected not to give evidence or call any defence witness for the general issue.

8.  In his VRI, D3 stated that a friend named "Ah Fai" lent him the Car to drive.  D3 knew that the Car was a little "unclean".  D3 did not need to pay to borrow the Car; he therefore drove it temporarily[1].  D3 claimed that he did not know Ah Fai's full name and did not have his contact details[2].  D3 bumped into Ah Fai about a week ago in Mongkok.  He chatted with Ah Fai and asked Ah Fai to lend him the Car[3]. Ah Fai did not say for how long D3 could borrow the Car; he would call D3 when he wants the Car back[4]. D3 borrowed the Car because his own car had broken down[5].  At the end of the VRI, D3 was asked to clarify what he meant by the Car was "unclean".  He said he thought the Car could have been obtained by illegal means[6].

9.  I considered that apart from being too good to be true, the highlight of D3's story was he thought the Car was "unclean", meaning it could have been obtained by illegal means.  He nonetheless decided to borrow the Car because he was tempted by the convenience[7] [of driving to work].  I was sure that D3 knew or had reasonable grounds for believing that the Car was "tainted".  On this basis, I found him guilty of Charge 18.

Mitigation & Sentence

10. D3 is 31 and has 1 conviction record, which involved 5 driving-related offences[8]. Defence counsel Mr. McGuinniety informed me that D3 is single and resides with his parents. He works as an insurance agent earning $20,000 per month. In mitigation, Mr. McGuinniety submitted that D3 is not a real criminal; his previous convictions were all traffic-related. Mr. McGuinniety further submitted that the Charge 18 is not one of those typical "money laundering" offences. D3 simply made a bad decision to borrow the Car.

11. I agree with Mr. McGuinniety that the circumstances related to Charge 18 were unusual and were atypical of "money laundering". There is no evidence showing that D3 was involved in or had any knowledge of obtaining the Car by deception. Based on the evidence revealed in the trial, I accept that D3 borrowed the Car (out of greed or otherwise)  and drove it for about a week (for convenience or otherwise). He made no attempt to conceal its identity (such as displaying false registration plates and/or false vehicle licence). He even parked it on the street, a location as conspicuous as it could get for a stolen car. There is also no evidence showing that apart from driving the Car, D3 had any intention to sell it, use it for illegal activities or deal with it in any illegitimate ways.

12. I adjourned the sentence to obtain a Community Service Order Report. The comments in the report are positive. The Probation Officer wrote "…the accused acknowledged that the present offence was [sic] committed due to his carelessness and recklessness in borrowing a vehicle from a friend whom he was not really familiar with. He had no knowledge of D1 or [sic] D2 involved in this case… He borrowed the vehicle casually for his own enjoyment without considering the appropriateness of his actions or the potential legal consequences of not checking the vehicle's ownership… He deeply regretted his actions and showed no inclination to re-offend [9]."

13. I find that D3 most probably committed the present offence without giving much thought to the illegality of his acts and their consequences. I would also treat him as having a clear record. He deserves a chance and can be spared from an immediate custodial sentence.

14. Based on the reasons stated above, I consider a Community Service Order to be an appropriate and just punishment for D3.

[Requirements of Community Service Order explained. D3 understood and is willing to comply.]

I sentence D3 to 180 hours of Community Service.