COURT: The defendant Li Yang was convicted after trial by an unanimous jury verdict for an offence of handling stolen goods, contrary to Section 24(1) and (2) of the Theft Ordinance, Chapter 210, which involved three handbags, a computer bag and a fur coat worth $31,700.
The facts were that on 24 November 2020, the defendant’s husband “Chan” and two others took part in a robbery in a domestic flat in an estate called One West Kowloon and took various items worth over HK$11,500,000.
On 17 December 2020, a police party armed with a search warrant went to the residence of the defendant, her husband and the husband’s mother. They eventually arrested the defendant and found the stolen items. To be specific, the three handbags were found on a shelf next to the upper bunk bed of the defendant, and the computer bag containing the fur coat was found near a ladder next to the bunk bed.
There were admitted facts at the trial that prior to the robbery, on 7 November 2020, the defendant’s husband had rented a flat in One West Kowloon to keep observation of the victim’s flat. CCTV footages captured the defendant and her husband, as well as another robber “Yeung”, having been to that observation flat on 22 November 2020. That was two days before the robbery. CCTV footages also captured the defendant with her husband and/or that robber Yeung having been to the Metropark Hotel Kowloon on 24, 28 and 30 November 2020, that was the same day and a few days after the robbery.
The defendant, in her subsequent police video-recorded interview, as well as her testimony in the trial, denied knowing even the existence of those stolen items in her bedroom. The defendant, in her evidence in court, admitted having been to that observation flat and the hotel but denied having any knowledge of the robbery.
The Defendant’s Background
The defendant was born in 1989 in the Mainland and is now 35 years old. She received secondary education in the Mainland China. She was married to Chan in 2018, and since then had been coming to Hong Kong by way of two-way permit. She no longer had contact with Chan after her arrest and she gave birth to a baby girl in January 2023, whose biological father was not Chan. She is unemployed and lived with her mother and her daughter in San Po Kong area.
After this incident, which took place back in 2020, she was once convicted of shop theft, for which she was sentenced to 3 months on 24 August 2022.
Mitigation
Mr Fung submitted a set of written mitigation submissions for the defendant. Apart from confirming the defendant’s background as set out above, the defence submitted that the defendant, with a clear record at the time of the offence, had handled property of only $31,700, and she had been cooperative with the police investigation. There was no or insufficient evidence to show that she knew about the underlying offence, nor was there any evidence indicating that she was part of the robbery scheme.
The only aggravating factor, arguably, was that the stolen goods were proceeds of a domestic burglary, which, to be accurate, should be a robbery at a domestic premises. The defence agreed that there were no sentencing tariffs, but submitted for the court’s reference a total of 12 handling cases of different scenarios and with or without guilty pleas, with the sentence ranging from 6 months’ to 5½ years’ imprisonment.
Today, it was added in open court by Mr Fung that this case took place nearly four years ago, and there had been a lot of changes to this defendant, including having given birth to a baby girl last year. It was suggested by the defence that a starting point of no more than 2 years should be considered.
Sentence
Unlike robbery or burglary, there are no specific sentencing guidelines for handling stolen goods. The reason is that the circumstances under which a ‘handling’ offence is committed can vary so much that it is inappropriate to set down any sentencing guidelines, Sentences in other cases of this kind are not necessarily of any directive use, the sentencing judge must pass an appropriate sentence according to the individual circumstances, see HKSAR v Yau Pak Chun CACC 211/2016, unreported at paragraph 14 of the judgment.
Nevertheless, in HKSAR v Cheng Chi Wai (2012) 4 HKC 590, a handling case where the nine aggravating factors mentioned in an English authority R v Bernard Webbe and Others [2002] 1 Cr App R (S) 22 had been discussed. They included:
(a) the closeness of the handler to the primary offence;
(b) particular seriousness in the primary offence;
(c) high value of the goods;
(d) the fact that the goods were the proceeds of a domestic burglary;
(e) sophistication in relation to the handling;
(f) a high level of profit made or expected by the handler;
(g) the provision by the handler of a regular outlet for stolen goods;
(h) threats of violence or abuse of power by the handler over others; and
(i) commission of an offence while on bail.
Though the primary offence, being a gang robbery at a domestic premises with high value of property taken, is no doubt serious, there is no clear evidence in this case to show that the defendant was in any way connected to it or had any prior or subsequent knowledge of it.
Also, there was no evidence as to when and how the stolen items, under the handling charge, found their way to the defendant’s bedroom. It follows that there is nothing to show how close or how remote the defendant’s act of handling was to that primary offence of robbery.
On the other hand, there were two features in this case, both to the advantage of the defendant in mitigation. It is noted that the stolen items handled by this defendant was only a very small part of the robbery, valued at $31,700 out of that of $11,500,000. And secondly, her act of handling, as revealed in the evidence, was rather insignificant, that is by merely keeping them at her bedroom shared with her husband, who was one of the robbers of the primary offence of robbery.
Having considered all the circumstances of this case, I am of the view that the appropriate starting point should be one of 2 years and 3 months’ imprisonment.
The defendant was convicted after trial, notwithstanding her minor shop theft conviction entered after this incident, I am prepared to treat her as a person of clear record, though that by itself does not constitute a significant mitigating factor.
However, having considered all her background, in particular being a mother of a baby girl and that the incident having taken place four years ago, and that this defendant is now leading a different lifestyle, as well as the extensive Admitted Facts at the trial, which substantially shortened the length and the complexity of it, I have decided to exercise my discretion to give her a discount of 3 months.
The defendant is sentenced to 2 years’ imprisonment.