HKSAR v. YIP TAK WING, MICHAEL

DCCC 574/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 574 OF 2010

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Reasons for Sentence

1.  The Defendant is convicted after trial of a count of “Handling Stolen Goods” under s. 24 of the Theft Ordinance, Cap. 210. s. 24(2) of the Theft Ordinance Cap. 210 provides that:-

“Any person who handles stolen goods shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.”

Facts found by the Court

2.  Private cars FN 2825 (“V1”) and FB 827(“V2”) were found stolen on 16 February 2009 and 24 March 2009 respectively.

3.  At about 1745 hours on 28 March 2009, a team of police officers laid an ambush in the vicinity of Fedder Container Yard (“the Container Yard”) located at D.D. 124, Lot 149, Tin Ha Road, Yuen Long.  They saw Vehicle 1 (which was at the time bearing false licence plate JL 9886) entering the Container Yard.  Later, Vehicle 1 was seen leaving the Container Yard with Vehicle 2 (which was at the time bearing false licence plate ML 7634) following.

4.  Thereafter, PC 54185 saw these 2 vehicles travelling together along Tin Ha Road.  Suddenly, the two vehicles accelerated and travelled towards Castle Peak Road.  PC 54185 gave chase in a vehicle.

5.  Subsequently, Vehicle 2 was seen stopping near a lamppost numbered FB 9106 on Tin Ha Road while Vehicle 1 crashed into a fence at the opposite side of the road.  The Defendant and an unidentified male both wearing gloves were seen alighted from Vehicle 1 and Vehicle 2 respectively. They then climbed over the fence and fled.  While the Defendant was climbing over the fence his right glove got caught in its barbed wire.  Further, he dropped his left glove on the ground.

6.  Forensic examination of the pair of gloves revealed that the Defendant’s DNA was found from the inside surfaces of both gloves.

7.  Two number plates of FN 2825 were found at the back of Vehicle 1.  The Motor Vehicle Licence of FN 2825 was placed inside the glove compartment.  Two number plates of FB 827 were found at the back of Vehicle 2.  The Motor Vehicle Licence of FB 827 was still affixed at the windscreen of Vehicle 2.

8.  It was also discovered that the lock of the left front door of Vehicle 1 had been removed leaving a hole and so had been the lock of the right front door of Vehicle 2.  The car key of Vehicle 1 was left in the ignition knob.  There was no car key but a home made ignition device in Vehicle 2.

9.  The Defendant was arrested for “Handling stolen goods” on 18 May 2009.  Under caution, the Defendant said he had nothing to say and he refused to answer any questions.

HKSAR v. Cheng Chun Ming CACC 356/2000

10.  A two year old Subaru Impreza was stolen in September 1999.  It was worth approximately $150,000 at the time of its theft. The owner identified the stolen car in a motor car show a month later.  The Defendant had driven and delivered the car to a used car dealer at the motor show in October 1999 to be displayed for sale.  A starting point of 3 years imprisonment after trial was adopted by the trial judge.  The Court of Appeal dismissed the Defendant’s Appeal against Sentence and held that:-

“14. We are unable to say that the starting point of 3 years’ imprisonment adopted by the judge is in any way wrong or manifestly excessive. Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime. We respectfully echo the words of Macdougall VP in R v Tang Hing Wong CACC 476/1994. That case was concerned with two thefts of motor cars. He said at the ultimate paragraph of the judgment:

“…… we think that the overall sentence of two years’ imprisonment for these offences was unduly lenient. It is a notorious fact that car theft, particularly that of luxury cars, has become increasingly prevalent. Those who commit such offences must be severely dealt with as a deterrent to others. Despite the appellant’s understandable sense of grievance we have come to the conclusion that even after taking into account his assistance to the police the overall sentence could not properly have been less than two year’s imprisonment. In our view, it would be wrong to reduce these sentences. We therefore refuse the application.”

It is to be noted that the sentence was imposed after a plea of guilty.”

HKSAR v. Chiu Kwok Wai Caesar CACC 294/2006

11.  The prosecution case was relatively simple. Sometime in June and July 2005, the victim company imported two second-hand Toyota Alphards V1 and V2 from Japan and having handed them to a motor company for repair, they were found stolen from the car park on 27 July 2005.

12.  Later on the same day, the police found the two vehicles parked at an open space by the hillside of Sai Keung. 

13.  Under police observation on 28 July, D1 and the applicant (D2) were seen arriving at the open space and were met by another man (who had since escaped).  Both D1 and the applicant were wearing gloves.  D1 boarded V1 and started the engine.  The applicant boarded V2 and sat on the driver’s seat.  The police then effected arrest.  The applicant put up resistance and caused a police officer to sustain injury. 

14.  The police found the ignition tumblers of both vehicles dismantled.  An extra vehicle computer was found connected to V2.  Of the three sets of ‘walkie-talkies’ found inside the car driven by D1, two sets were in working order and turned to the police radio channel.  There were also two sets of front and rear number plates inside that car.

15.  Inside V2 and among other things, a pair of forged trade licence plates (T8812) was found.

16.  The applicant was convicted after trial in the District Court of the following three offences i.e. handling stolen goods, possession of a false instrument with intent and resisting a police officer in the due execution of his duty.

17.  The judge sentenced the applicant who was a first offender to four years’ imprisonment for the handling charge.  On appeal, the applicant was found guilty of an attempt to handle stolen goods as opposed to the substantive offence of handling in charge 1.

18.  The Court of Appeal went on to say:-

“23. In our view, the fact that the applicant is guilty of an attempt to handle stolen goods as opposed to the full offence had no bearing whatsoever on the sentence to be imposed. …… The acts of the applicant and his accomplices remained exactly the same. Their culpability also remained exactly the same. The applicant and D1 were caught red-handed. For the purpose of sentencing, the fact that the applicant and his accomplices had not benefited from the fruit of their crime was not a relevant matter to be considered in this case.

24. The judge expressly referred to the case of HKSAR v. Wong Kam Tat, CACC446/2001 when he adopted the four-year starting point on the basis that the applicant was a used car dealer who had the “know-how about Japanese vehicles” and “access to a steady market for disposing of second-hand cars or used parts.

25. In Wong Kam Tat, the appellant was a genuine car dealer who used forged documents to hide from the authorities and the purchaser the fact that the vehicle to be sold was a stolen one. The appellant used his know-how in the trade to fool a purchaser. As a genuine car dealer the appellant had access to a ready market for disposal of stolen cars by mixing stolen vehicles in amongst genuine stock. He was not merely someone employed to deliver a vehicle. The appellant was as proactive as a handler could be in that case. He also added insult to injury by offering to return only part of the purchase price to the purchaser when the latter wanted to cancel the deal after learning that the chassis number of the car was suspicious. The trial judge adopted a starting point of four years for the offence of handling one stolen car.

26. On appeal the Court of Appeal ruled that the starting point of four years was not manifestly excessive. The Court of Appeal also noted that the trial judge had not taken into account the forgery element in arriving at the four years starting point.

27. In this case, the applicant’s testimony that he was a legitimate used car dealer was rejected by the judge. The applicant’s position was quite different from that of the appellant in Wong Kam Tat. On the other hand, the applicant was not just someone employed to deliver a stolen car either. Two stolen cars were involved here. The applicant was not a lone culprit, but acted in concert with others. There was a certain degree of planning and sophistication involved. To facilitate his attempt to handle stolen goods, the applicant also had in his possession the forged trade licence plates, which was an aggravating feature. In all the circumstances of this case, a starting point of four years could not be said to be excessive.”

In HKSAR v. Lam Yui Yiu（林銳堯）CACC373/2006

19.  The Appellant was found guilty of handling a stolen taxi.  A sentence of 4 years’ imprisonment was imposed.  The Court of Appeal regarded the sentence to be at the top end of the range but not manifestly excessive.

20.  The facts were simple.  A taxi, registration number JW 8751, was leased out to the appellant from 1 May 2004 to 2 June 2004.  Some nine months later, on 15 March 2005, taxi JW 8751 was found to be missing from the place where it had been left parked.  In the same month, the vehicle licence of a taxi, numbered KM 2638, belonging to a taxi leasing company, also disappeared.

21.  On 23 March 2005, PW1 rented taxi KM 2638 from the leasing company.  By sheer coincidence he came across another taxi bearing exactly the same registration number.  He made a report to the police.

22.  Again, on 3 April 2005, while driving in Kowloon, PW1 noticed a stationary taxi with the number KM 2638.  He could see that it was not the same taxi with that number which he had earlier rented, he again reported the case to the police.  When the appellant returned to the taxi bearing the number KM 2638, he was arrested.  Several documents relating to taxi JW 8751 were found in the glove compartment.  The appellant’s explanation for his possession of the taxi was rejected.

23.  In short, the appellant had been driving the taxi, stolen on 15 March 2005, which had now been fitted with false plates to match the vehicle licence stolen in that same month.

24.  The judge found that the appellant’s culpability in relation to handling the taxi was no less than that of the thief.  Noting that the appellant was not insured to drive the taxi and that any driving offence committed by the appellant might well be blamed on the driver of the taxi bearing the genuine number plate KM 2638, the judge considered that a deterrent sentence was necessary.

25.  The sentence of 4 years’ imprisonment was imposed.  In this case, the taxi was stolen so that it could be used as a regular taxi plying for hire on public streets.  The offence had been well prepared and planned with the added element that the appellant would be able to avoid detection for any traffic offence, given that there existed a genuine taxi bearing the same number plate unless, as happened in this case, he was caught red-handed.  This was an offence which had potential dangers for the public as the stolen taxi was not covered by insurance.

26.  The appellant has managed apparently to steer clear of trouble for many years.

27.  The Court of Appeal’s attention was also drawn to its decision in HKSAR v. Wong Kam-tat CACC446/2001, which concerned the handling of a stolen Honda Civic motor car by a motor dealer who sold the vehicle for $46,000.  The defendant in that case pleaded guilty to the charge and to two closely connected charges of forgery, namely a notice of transfer of ownership and an application to retain a vehicle registration mark.  The sentencing judge adopted a starting point for the handling charge of 4 years’ imprisonment.

28.  It was noted that different considerations were applied to Lam’s case but the Court of Appeal was satisfied that the facts of the case of handling stolen goods disclose a sufficiently serious state of affairs to have justified the sentence which the judge imposed.

In HKSAR v. Nip Kwai Wing CACC 117/2000

29.  The applicant was charged in the District Court with an offence of handling a stolen crane lorry.  He was convicted after trial.  The Court adopted a starting point of 3 years imprisonment.

30.  The truck left at the night of 20 April 1999 in a compound in Kam Sheung Road, Yuen Long.  At 8.15 a.m. the next morning, it was gone and a padlock which had been on the gate was missing.  The prosecution case was that this applicant was engaged by thieves, a gang specializing in the theft of expensive vehicles for sale in Mainland, and that his job was to take a man called Suen to the place where the vehicle was, and to hand him an envelope which contained documents to facilitate his entry, and the importation of the vehicle, into the Mainland.

31.  As the Applicant was in his 30s and has no previous criminal convictions, a reduction of 3 months was given.  The applicant was eventually sentenced to two years and nine months’ imprisonment. The trial judge had also taken into account the fact that the lorry in question was worth about $300,000; that the applicant was rewarded some $3,000 for his role; that he had given false papers to the driver; that his role was the least serious of all those who were engaged in the theft and removal of the lorry. 

32.  The Court of Appeal considered that the sentence was neither wrong in principle nor manifestly excessive.

Court’s observation and sentence

33.  Undeniably cases involving the theft or handling of motor vehicles are of very serious offence.  Not only is immediate custodial sentence inevitable but sentence of considerable length is also called for.

34.  The Defendant, aged 36, had one previous non-similar record for possession of dangerous drug in October 2004.  According to the Salaries Tax document submitted by the Defence in mitigation, Gainman Development Ltd had paid the Defendant an average monthly income of $8,000 before commission of the offence.  But such income was then increased to $8,800 per month on average since 1/4/2009 by the same company.  Both his parents and girl friend revealed that the Defendant used to lead a simple and normal life and had no specific personal problem in the past.  They were shocked to learn that he was involved in the present offence.

35.  In the present case, 2 stolen vehicles were involved.  The Defendant was not a lone offender but was acting in concert with an accomplice.

36.  The evidence revealed certain degree of planning, preparation and sophistication.  To facilitate the handling, two forged number plates and two forged Motor Vehicle Licences were prepared and used.  Such features aggravated the offence, and posed potential dangers to the public as the stolen cars were not covered by insurance.

37.  Shortly before the two vehicles stopped, Vehicle 1 was driven by the Defendant dangerously on the wrong side of the road where PW2 was travelling and had blatantly disregarded the safety of other road users.

38.  Under all the circumstances, this Court considers a starting point of 3 years imprisonment is appropriate.

39.  There was no mitigating factors which would justify reduction in sentence.  As such, the Defendant has to serve a term of 3 years' imprisonment.