HKSAR v. GUAN XINGHUA

DCCC 99/2025

[2025] HKDC 2118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 99 OF 2025

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REASONS FOR SENTENCE

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1.  There are two defendants (D1 - D2)  in this case. This sentence only deals with D2. D2 pleaded guilty to the second charge of handling stolen goods[1]. The particulars of the charge stated that on or about the 9^th day of September 2024, in Hong Kong, D2 dishonestly assisted in the retention of certain stolen goods, namely 8 discs and 1 vinyl record player, by or for the benefit of another, or dishonestly arranged so to do, knowing or believing the same to be stolen goods.

Summary of Facts

2.  Mr LEUNG Wai-keung (‘PW1’)  took over Room B, 1^st Floor, Yan Fat Building, Nos. 39-41 Shek Kip Mei Street, Sham Shui Po, Kowloon, Hong Kong (‘the Flat’)  from his late mother in June 2022.  The Flat was used mainly to store the belongings of PW1’s mother and was otherwise vacant since then.

3.  In mid-August 2024, PW1 went into the Flat for an inspection and found that things there were in order.  PW1 then made sure that all windows and the wooden front door were locked before leaving.  The metal gate outside the wooden front door to the Flat was never locked as the lock was faulty.

4.  On 6 September 2024, PW1 returned to the Flat and found that the wooden front door could not be pushed open.  Neither the metal gate nor the wooden front door had any signs of tampering.  PW1 then arranged for a locksmith to open the wooden front door.  Upon entering the Flat, PW1 found that the Flat had been ransacked, each of the windows had been opened, and one of the windows had fallen off its frame and landed on an air conditioner compressor outside the Flat.  PW1 reported the case to police.

5.  PW1 found 8 disc and a vinyl record player were missing.

D2

6.  On 9 September 2024 at 4 pm, D2 was spotted coming out from a metal door to the back alley at No. 56 Fuk Wah Street (‘Storeroom 2’).  Upon seeing the police, D2 immediately went back inside Storeroom 2 behind the said metal door. Upon enquiry, D2 explained that he came to Storeroom 2 to see D1.  Storeroom 2 was searched with D2’s consent.  8 discs with 7 discs covers and 1 vinyl record player were found (‘Storeroom 2 Items’).

7.  Storeroom 2 Items are missing properties of PW1.

8.  D2 was arrested and cautioned, he admitted that he knew the Storeroom 2 Items were taken from a burglary.  In a subsequent video recorded interview, D2 admitted: -

(1)  he would often hangout at Storeroom 2 which is owned by D1;

(2)  Storeroom 2 is not normally locked and he would go in by pushing open the door;

(3)  he knew that the discs and turntable were stolen; and

(4)  a week ago, he was asked to keep watch of the discs and turntable and not let them be taken by anyone.

Criminal Record and Background of the Defendant

9.  D2 had been sentenced by court on 2 occasions.  In 2019, he was sentenced to 2 months’ imprisonment suspended for 18 months for managing a gambling establishment, and in 2021 he was sentenced to a fine of $1,000 for gambling in a gambling establishment.

Mitigation

10.  D2 is now aged 31.  He came to Hong Kong when he was 18 years old.  He was educated up to grade 10 in the Mainland.  He is married with two children, currently age 7 and 8.  D2 earned his living alongside his father in the field of interior renovation, where he earned a daily wage of $1,500.

11.  In mitigation, Mr Young referred the court to the cases of:

(a)  R v Webbe (Bernard) [2002] 1 Cr App R (S)  22 (CA). This case provides guidance on the appropriate approach to sentencing in matters involving the handling of stolen goods and outlines factors that may be considered in assessing the seriousness of the offence and the degree of culpability of the defendant.

(b)  HKSAR v Xiao Wei [2003] 3 HKLRD 1063 (CA). D, a 21-year-old male from Mainland China, handled stolen goods by pawning a stolen watch in Mongkok for $3,500, only six hours after the domestic burglary during which the watch was stolen. D told the police he had asked his friend, Lee, to lend him some money; Lee then asked him to pawn the watch, and, having done so, Lee gave D $1,000 from the proceeds. D had a “formidable criminal record in Hong Kong”. After trial, the District Court judge applied a starting point of 3 years’ imprisonment. The Court of Appeal held this starting point was manifestly excessive and one of 18 months was more appropriate. The Court noted that the burglary was not accompanied by threats of violence or with the assistance of dangerous weapons, and “there was nothing to show that the applicant had any direct knowledge of the means by which the watch had been stolen; that the value of the stolen goods was not especially high, his profit being, on his account, limited to $1,000; and that the applicant revealed a considerable lack of sophistication in his method of converting the stolen watch into a sum of money”.

(c)  HKSAR v Raman Kumar [2018] HKCA 122. D plead guilty to burglary and handling stolen goods, two offences unrelated to each other. When arrested at his home for the burglary, police found D in possession of a stolen mobile phone with a SIM card, items which were stolen earlier in the day from someone sitting on a public bench. The value of the mobile phone was $5,500. The sentencing judge adopted a starting point sentence of 12 months’ imprisonment for the handling stolen goods offence. The Court of Appeal dismissed the sentence appeal and held that “the judge’s approach to stipulating the appropriate starting point to be taken for sentence on the applicant for the burglary and handling stolen goods and the sentences that she imposed was entirely appropriate.”

(d)  HKSAR v Tai Wai Yin [2024] HKDC 673. D pleaded guilty to six charges: 1 of handling a stolen credit card and 5 of obtaining property by deception by using the stolen card 5 times. The victim lost his wallet with his Amex credit card. The stolen credit card was given to D by a friend who told her to use it. On the same day the wallet was lost and the next day, D used the credit card to purchase goods valued at $5,652.50. The Court adopted a starting point of 12 months’ imprisonment for the handling stolen goods offence.

12.  Mr Young submitted that only the fourth factor in Webbe, of the goods being derived from a domestic burglary, is engaged.  Mr Young further submitted that the premises, however, was unoccupied at the time of the burglary as the owner was using the flat only to store his mother’s belonging.  There is no evidence D2 was at all involved in the burglary or knew of its circumstances.  The authorities referred to in above involved handling offences which were committed in closer proximity to the primary offence (same day)  and the stolen objects were arguably more valuable.

13.  Further, it was submitted that it was a one-off case.  The only reason why D2 was involved is because of his tendency to “hangout” at the storeroom and the request by the D1 to keep watch over the stolen items.  The total value of the items were not substantial and likely less than HK$5,000.  As such, D2’s culpability for his offence lies at the low end of the spectrum of gravity.

14.  Finally, as D2 has already served 7 months and 6 days of pre-trial custody, the defence asked the court to adopt a sentence of imprisonment which could allow him to be immediately released.  Such a result would be conducive to D2’s rehabilitation as it would allow him to continue to work in renovation job without disruption.

Sentence

15.  The maximum penalty for handling stolen goods is 14 years’ imprisonment. There is no sentencing tariff for this offence.

16.  In R v Chan Wing Kwan and another CACC 121/1985:

“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.”

17.  In R v Bernard Webbe & Others [2002] 1 Cr App R (S)  22,  the Court of Appeal identified factors that would be regarded as aggravating.  The nine aggravating factors identified in Webbe are intended to provide assistance to the court in gauging the level of seriousness of the handler’s activities, namely:

(1)  The closeness of the handler to the primary offence (closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal).

(2)  Particular seriousness in the primary offence.

(3)  High value of the goods to the loser, including sentimental value.

(4)  The fact that the goods were the proceeds of a domestic burglary.

(5)  Sophistication in relation to the handling.

(6)  A high level of profit made or expected by the handler.

(7)  The provision by the handler of a regular outlet for stolen goods.

(8)  Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurising addicts to steal in order to pay for their habit.

(9)  As is statutorily provided by s.151(2)  of the Powers of Criminal Courts (Sentencing)  Act 2000, the commissions of an offence while on bail.

18.  Webbe also identified factors that might mitigate the offence: namely, low monetary value of the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, and the fact of voluntary restitution to the victim.  Other factors to be taken into account include personal mitigation, ready cooperation with the police, previous convictions, especially for offences of dishonesty and, as statutorily provided by s.151(2)  of the Powers of Criminal Courts (Sentencing)  Act 2000, a timely plea of guilty.

19.  As for the aggravating factor, the fourth factor in Webbe, namely, the fact that the goods were proceeds of a domestic burglary, applies in this case.  D2 admitted that he knew the Storeroom 2 Items were taken from a burglary.  In this case of handling stolen goods showed, the items were proceeds and result from a domestic-premises burglary.  It was found that the premises had been ransacked and one of the windows had fallen off its frame.  The items stolen, i.e. Storeroom 2 Items, were recovered from D2 in the storeroom of which D2 was asked to keep watch of and he had done so for a week at time of the arrest.

20.  I have considered the factor outlined by Webbe on the subject of closeness to the primary offence:

“One important issue is whether the handler has had advance knowledge of the original offence, or has directly or indirectly made known his willingness to receive the proceeds of the original offence, as compared with a handler who has had no connection with the original offence but who has dishonestly accepted the stolen goods at an undervalue.”

21.  Those comments are equally applicable to our legislation in Hong Kong: see HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360 (para 59).

22.  As for the mitigating factor, it is accepted that there is no evidence D2 was involved in the burglary.  The offence seemed to be a one-off offence.  D2 was cooperative with the police.

23.  In the present case of D2, the concerned stolen goods were 8 discs and 1 vinyl record player.  The value of the goods were less than $5,000, which was agreed by the Prosecutions.  In Cheng Chi Wai, the Court of Appeal noted that the value of the goods included also their sentimental value.  In the present case, the Flat was used mainly to store the belongings of PW1’s late mother.

24.  Taking into account of the nature of the offence that D2 was facing, the facts of the case admitted, the background of D2, the mitigation submitted by the defence and the relevant authorities, I adopt a starting point of 12 months’ imprisonment, after one-third discount upon D2’s guilty plea, the sentence is 8 months’ imprisonment.

25.  There is no other mitigating factor which justifies a further reduction of sentence.

Conclusion

26.  The sentence of D2 is 8 months’ imprisonment.