HKSAR v. WONG KA CHUN

DCCC347/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 347 OF 2009

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of conspiracy to steal and one charge of using a forged Identity Card.

2.  In sentencing I have taken into account the whole circumstances of the case, including its nature and facts, background of the defendant, and mitigation put forward on his behalf.

3.  The conspiracy to steal in fact was carried out.  It took place on 9 July 2005.  On that date, the defendant had been employed as a delivery worker engaged by Chun Sing Logistics Hong Kong Limited for about three weeks.  The company was engaged by the Fujitsu Company to deliver 1,552 pieces of computer parts, valued at about $605,972, to a place. 

4.  The defendant and a lorry driver were assigned to perform the duty.  When they arrived, goods were unloaded from the lorry and the defendant was to deliver the goods to the delivery address.  He instead loaded the goods onto another truck and was driven away in that truck then loaded with the stolen goods. 

5.  On 15 February 2009, the defendant was arrested when he was leaving Hong Kong for the mainland.  By that time, it had been discovered that he had used a forged Identity Card and provided a false address when he applied for the above said employment.

6.  Under caution, the defendant admitted that a person called Ah Shing had suggested to him to work as an insider in the logistics company and to inform him when valuable delivery was assigned to him. 

7.   He applied for the job with a forged Identity Card provided to him by Ah Shing. 

8.  He informed Ah Shing of the delivery in question.  He was told to load the goods onto another truck as arranged.  He did not know how the goods were eventually disposed of.  He received a reward of $40,000.

9.  The defendant is 29 years of age.  He is not a first offender.  He was first convicted in August 1995 when he was below 16 years of age.  He was bound over for having stolen from a vehicle.  In 1998, he committed two offences of AOABH.  In 2003, he committed an offence of obtaining property by deception.  In February 2006, he was sentenced to a total of 2 months’ imprisonment for two offences of theft. 

10.  In mitigation, learned counsel for the defence told me that the defendant came from a deprived family.  His parents were farmers.  He was the eldest amongst four siblings.  He quitted school after Form Two and started work to contribute to the family.  He contributed each month about $3,000 to the family from his employment. 

11.  Some time before the incident his mother was in need of an operation to cure her long-term injury in her knees and shoulders.  Under the financial stress, the defendant was tempted by a friend, Ah Shing, to enter into this conspiracy. 

12.  The case involved planning with insider information and a breach of trust on the part of the defendant.  There was pre-meditation and the offence was committed in concert with others.  The defendant received quite a handsome amount of reward. 

13.  Learned counsel for the defence stressed that the defendant was not the mastermind.  I have no reason not to accept that.  However, the defendant did play an active and major role.

14.  In sentencing, I have had regard to sentencing precedents such as Trevor Clark [1998] 2 Cr App R 137, HKSAR v Cheung Mee Kiu, CACC99/2006, and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  I have also had regard to the case submitted by learned defence counsel, the case of HKSAR v Lok Kin Chi, CACC354/2007. 

15.  In all the circumstances, I adopt a starting point of 2½ years for Charge 1. 

16.  Charge 2 involved the use of a forged Identity Card in order to obtain the employment.  The offence did not involve immigration concern but obviously was calculated to conceal the defendant’s real identity with future commission of offence in mind and to avoid apprehension afterwards.

17.   I adopt a starting point of 15 months. 

18.  The defendant pleaded guilty, he is entitled to a one-third discount for this factor alone. 

19.  I was told that the defendant was willing to attend an Identification Parade to identify his accomplice if one is arrested.

20.  I appreciate that this is an indication of remorse and a gesture of assistance to the authority.  However, this is not something which may attract any further discount at this stage. 

21.  Having considered the whole circumstances, including mitigation submission, I am of the view that the discount which the defendant is entitled to is one-third.

22.  I therefore sentence the defendant to 20 months’ imprisonment for Charge 1 and 10 months’ imprisonment for Charge 2.

23.  Learned defence counsel submitted that the offence in Charge 2 was part and parcel of Charge 1. 

24.  Whilst it was in a way committed in preparation for a chance to commit the offence in Charge 1, it was completed while the forged Identity Card was shown to obtain the employment. 

25.  It could have stood on its own if the offence in Charge 1 had not been committed and attracts an independent sentence.  It also facilitated concealment of the defendant after commission of the offence in Charge 1.  Besides, the two offences are completely different in nature.  I do not consider a wholly concurrent sentence appropriate.  Having regard to totality, I order 4 months of Charge 2 to run consecutively to that of the sentence imposed on Charge 1, making a total sentence of 24 months.