HKSAR v. MA HON KWONG

HCCC 328/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 328 OF 1993

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Ma Hon-kwong, by reason of your guilty plea today, you have been found guilty of going equipped for stealing, contrary section 27(1) of the Theft Ordinance, Cap 210.

This matter concerns the part which you played in a conspiracy to rob a commercial premises at Hoi Bun Industrial Building, 6 Wing Yip Street, Kwun Tong, Kowloon on 9 May 1993.

On that date, the police had advance notice of a plan to rob those premises. As a result of that advance notice, the police lay in wait for you and your compatriots to arrive which you did just after 2200 hours that evening. Ten people were arrested in all, and some of them were in possession of offensive weapons including a knife and a loaded pistol.

You say that you knew only of the presence of two more people who were to take part and not the other seven. The prosecution have indicated that they have to accept that version of events.

You were all originally charged with robbery, conspiracy to rob, and attempted robbery of various premises over a period covering 17 March to 9 May 1993, and you were due to stand trial in the High Court on 2 May 1994. However, D1, D4 to D7, and D9 failed to attend. You were D6.

On the 3 May 1994, D8 pleaded guilty to Count 5 of that indictment, and D10 pleaded guilty to Counts 3, 4, 5, and 6 with Counts 1, 2 and 7 left on the file.

D2 and D3 pleaded not guilty to a fresh indictment including Count 5 alone, which was the attempted robbery of the Hoi Bun Industrial Building on 9 May 1993. They were convicted by a jury on that sole count on 25 May 1994, and on 26 May 1994, D2, D3, D8 and D10 were sentenced for Count 5, the attempted robbery of the Hoi Bun Building. They received between 5 and 7 years’ imprisonment.

By your plea, you are to be sentenced for the part you played in that event on the basis that your culpability is limited to the extent that you were going equipped to steal in that you were found to be in possession of items which could be used to start up and then steal a vehicle.

That is the basis upon which I am to sentence you, although it is not the basis of the admissions you made when first arrested and cautioned, which you now say were not made voluntarily. The prosecution have indicated that they cannot gainsay that compliant.

Going equipped for stealing has a maximum sentence of 3 years’ imprisonment after trial. You were found in possession of a hammer, screwdrivers and a communications device to listen to the police radio frequency. For the avoidance of doubt, I do not attach any significance to the fact you were in a possession of gloves. I find no particular weight to be attached to that fact, and I am sure that no charge would be brought against you on the basis that you were in possession of a pair of workmen’s gloves alone.

You said on arrest that you were present to steal a lorry and you had come to that agreement late in the day. There is no evidence to suggest you knew about the offensive weapons carried by any of the others, and you were not found near to the subdued guards. You were found on your way to a lorry in order to start it up and presumably to use it to carry away the goods your colleagues hoped to steal.

On 7 June 2015, some 21 years after you should have been the subject of trial, you attended at Kwun Tong Police Station and voluntarily gave yourself up to the warrant of arrest that had been issued on 2 May 1994 by Deputy High Court Judge Wilson. This was not your first attempt to do so, and I accept that you had previously been turned away by another officer in a different police station.

The court has been told and accepts that you did this because you were remorseful for the part you played and because your elderly mother wishes you to live an honest life as a full member of the community and not as a fugitive. It is to your credit that even though you remained in Hong Kong in hiding in the New Territories and worked as a garage mechanic, you have not been in any trouble in the intervening years and you come before the court even today as a man of good character.

Nevertheless, you appear before the court to be sentenced for a matter which occurred 21 years ago, and for a role which is far less significant than the one you were originally charged with. To some extent, your absconding has done you a favour in this regard, as the prosecution feel that they are in considerable difficulty proceeding on the original charge after so many years. That is not to your credit. The greatest credit goes to those who face the allegations made against them and plead guilty at the first opportunity. You did not do that.

I have been provided with a number of authorities in respect of going equipped to steal and, as was stated in HKSAR v Lee Ho Yin [2013] 1 HKLRD 2; CACC 240/2012, there are no guideline cases.

I have considered all of the cases cited therein, which provide a bracket of between 12 months and 2½ years imprisonment but upon bases which are dissimilar to the facts before me. I take into account the fact that you were in possession of items which you openly admitted were for the purpose of finding a lorry in order to hotwire it. I also take into account, you were not on your own but a part of group of people intent on stealing from a commercial building. According to you, the group consisted of three people.

There is no evidence that you knew about the weapons or indeed what happened to the security guards, although it must have occurred to you that they would need to be dealt with in some fashion. Because you played a part in an organised albeit smaller scheme than originally suggested, I take a view that I should adopt a starting point of 18 months.

You are entitled to some discount for your guilty plea but that has to be significantly reduced by the fact that it took 21 years to enter it.

I have been provided with some very limited guidance on how to approach that discount: in Secretary of Justice v Choi Wing Wah [1998] 4 HKC 373; and an English case Regina v Afsar [2004] EWCA Crim 3010. As with many sentencing options, the way to approach this issue turns upon the particular facts of the case before the court.

I have not been provided with the ultimate discount for plea given to any of the others who had absconded before the same trial or indeed whether they were apprehended or turned themselves in to be dealt with.

I take the view that whilst it is always to an abscondee’s credit that he chooses to face justice finally, the length of time he takes to come to that decision and the reason he chooses to do so are factors to be taken into consideration.

It must also weigh significantly in the balance the fact that substantial delay also circumvents true justice as it does here. The prosecution to take the view that they can no longer proceed on the same charges as they would have done in 1994 when no doubt you would have either pleaded guilty or been found guilty of the charges against you as happened to your co-defendants who faced trial. But you are not before me upon a charge of attempted robbery which carries a far greater penalty. You are here to be dealt with for going equipped for stealing upon a guilty plea.

I have dealt with the starting point for the going equipped but in respect of the guilty plea, I am going to halve the discount normally given, and you will get a one-sixth discount for the plea you have entered. You will therefore go to prison for 1 year and 3 months.

In respect of Count 1, I am going to rule that that matter lie on the file not to be proceeded with without leave of this court or the Court of Appeal.