HKSAR v. LI KIN CHUNG

DCCC 411/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 411 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant appeared before me in the District Court, facing four counts of handling stolen goods (Charges 1 to 4) and one count of resisting arrest (Charge 5). He pleaded not guilty to Charge 1 but pleaded guilty to all remaining four charges. As a result of plea bargaining, the prosecution was contented to leave Charge 1 in the court file. Following the defendant’s convictions in Charge 2 to 5, I order that Charge 1 will not be proceeded without the leave of the court and will be left in the court file.

2.  In this case, two of the handling charges (Charges 3 and 4) concern stolen bicycles whilst the remaining handling charge (Charge 2) concerns a stolen motor vehicle.  All the offences took place between November 2013 and January 2014.  Defendant was first arrested on 20 December 2013 in relation to Charges 2 and 3 and subsequently placed on police bail.  On 24 January 2014, whilst on police bail, defendant was again arrested in relation to Charges 4 and 5.

Facts

Charge 2

3.  The motorcycle in relation to Charge 2 was purchased by PW3, Miss Mary E Jones, in February 2013 for HK$11,000.  PW3 parked her motorcycle at the roadside near No 596A Fanling Wai, Jockey Club Road, Fanling at about 1 am on 19 December 2013.  At about 8 am on the same date, the motorcycle was found missing.  A report was then made to the police. 

4.  On the very next day, 20 December 2013, the police found PW3’s motorcycle in a wooden hut adjacent to No 432 Fanling Wai.  The motorcycle was partly dismantled.  Alongside with the motorcycle, the police found further two bicycles (one Cannondale and one Java) were also found in the hut which are the stolen goods as mentioned in Charge 3.

5.  After the arrest, the defendant stated in the cautioned statement that he had been told by his friend to look after the motorcycle and he knew that it was stolen. 

6.  The cost of repairing the motorcycle would be about HK$16,500 which is actually higher than the purchase price paid by PW3.  In other words, the value of this motorcycle had been completely written off.

Charge 3

7.  In relation to the two stolen bicycles found inside the wooden hut, the Cannondale bicycle was purchased by the owner, PW4, one Mr Wong, for HK$15,000 whilst the owner of the Java bicycle could not be found. 

8.  The defendant stated in the interview that he had bought the bicycle from a person known as Lo Tung.  He had paid HK$2,000 for the Cannondale and only HK$100 for the Java, knowing full well that at the time both bicycles were stolen property.

Charge 4

9.  The owner of the stolen bicycle, a Merida bicycle, is Mr Francis T Spencer, PW5, who purchased this bicycle for HK$1,900 in January 2014.  On 22 January 2014, PW5 locked this bicycle outside No 553 Fanling Wai, Sheung Shui.  The following morning, on 23 January 2014, PW5 discovered that the lock securing the bicycle had been cut and the bicycle was found missing.  A report was then made to the police.

10.  In the morning of 24 January 2014, PW7, one Mr Pang who is a resident of Fanling Wai, saw PW5’s bicycle inside an abandoned village house at No 402 Fanling Wai and then reported the matter to the police. 

11.  Subsequently, the police laid ambush at the village house.  Eventually, they saw that the defendant appeared and took the bicycle from the village house.  Defendant was immediately apprehended and arrested by the police but in the course of the arrest, the defendant put up a struggle with a plainclothes police officer despite being informed that he was under arrest and not to struggle.  In the course of the struggle, the defendant and the police officer both fell onto the ground.  As a result, the police officer was found to have abrasions and scratch marks on his left hand and, hence, Charge 5. 

12.  At the material time, the defendant also handled this bicycle, knowing full well that it was stolen.

Criminal record and the background of the defendant

13.  This is the fifth appearance in court of the defendant.  Between 2009 and 2014, defendant had been sentenced to various imprisonment terms for offences of trafficking in dangerous drugs, possession of dangerous drugs, criminal damage, assault occasioning actual bodily harm and also breach of a suspended sentence.  He is currently serving a total of 6 months’ imprisonment imposed on him in May 2014.

14.  I was informed that the defendant used to be a drug addict but at the time of the offence, he was no longer addicted to the drugs.  He is reported to be a part-time taxi driver at the time of the offence earning a monthly income of HK$15,000 per month. 

15.  Defendant is now aged 36.  He was born in Hong Kong.  He was married in 2008 and his wife is now living in China.  He has only received an education up to Form 3 level and after leaving the school, he had worked as a delivery worker as well as a cook in a restaurant.  Each month he had to contribute about $2,000 to his wife in China and $3,000 to his parents who are living apart in Hong Kong. 

16.  Mr Ma, counsel of the defendant, in mitigation had asked the court to consider the fact that the defendant had pleaded guilty in this case and therefore saving a lot of court’s time.  He also reminded the court that these offences were committed within a relatively short period of time and while it was in relation to stolen vehicles, the subject matter of the stolen properties were largely bicycles and one motorcycle of a relatively low monetary value.

17.  In relation to the motorcycle in Charge 2, Mr Ma said that the defendant allowed the motorcycle into his hut only because out of his relationship with a friend who asked him to store the motorcycle for him. 

18.  In relation to the other bicycles in relation to other charges, Mr Ma told the court that the defendant did not know the exact market value of those bicycles.  In those cases, all the defendant did was that he just wanted to make a profit by buying low and selling high albeit that he knew full well that those are stolen vehicles. 

19.  In relation to the resulting or remaining resisting‑arrest charge, Mr Ma said that the defendant committed this offence only because he was in a state of panic in the course of being arrested.  While he acknowledged that the offence is serious and that the police officers had suffered some minor injuries, Mr Ma reiterated that the defendant had no intention of causing harm to the police officer.

20.  Finally, as there are multiple charges in this case, Mr Ma properly referred to the principle of totality when I come to deal with the sentences of all these various charges.

Sentencing considerations

21.  In sentencing, I took into account the guilty plea of the defendant, his criminal records and background, the mitigation advanced on behalf by the defence counsel and also some case authorities on handling stolen goods. 

22.  In R v Bernard Webbe & Others [2002] 1 Cr App R(S), the English Court of Appeal has identified a whole host of nine aggravating factors for handling stolen goods cases.  Without going into the nine aggravating factors one by one, I can immediately see that in the present case there are at least two aggravating factors which are significant for my consideration, namely, (1) the closeness of the handler to the primary offence and (2) the provision by the handler of a regular outlet of stolen goods.

23.  In that case, at paragraph 30, the English Court of Appeal has said the following:-

“As we have earlier indicated, sentences significantly higher than 4 years or so may be appropriate where a professional handler over a substantial period of time demonstrated by his record or otherwise has promoted and encouraged, albeit indirectly, criminal activities by others.”

24.  In HKSAR v Cheng Chi Wai CACC 94/2011 and CAAR 2/2011 (Heard Together), the Court of Appeal in Hong Kong said that as a statement of general guidance for trial court, the Court of Appeal in Hong Kong agreed with all that is said in the passage that I have quoted from this judgment.  In fact, what the Court of Appeal in Hong Kong said was that the comment by the English Court of Appeal in the Webbe case resonated with the comments by the Court of Appeal in Hong Kong in HKSAR v Boma [2012] 2 HKLRD 33 in respect of Hong Kong’s money-laundering offence in section 25 of the Organised and Serious Crimes Ordinance, Cap 455. 

25.  In the eyes of the Court of Appeal in Hong Kong, both offences require the offender to possess a similar mens rea either in respect of the stolen property or the proceeds of the crime.  Both offences are ancillary to or secondary to a primary offence.  The conduct underlying both offences provides encouragement and nourishment to crime and, as a consequence, the dominant sentencing consideration in respect of both offences is deterrence.

26.  On the issue of closeness to the primary offence, the English case Webbe has this to say:-

“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.”

27.  In Cheng Chi Wai, the court has said that those comments are equally applicable to our legislation in Hong Kong and just as appropriate to Hong Kong’s own particular circumstances.  This was regarded by Stock VP in Boma as likewise adding to the culpability of the money launderer. 

28.  It is noted that in this present case, the defendant knew full well that the bicycles or the motorcycle he received were subject matter of theft.  It cannot be said therefore that he just dishonestly accepted those stolen goods at an undervalue.  I therefore judge that the seriousness of the primary offence must be linked to the seriousness of the handling offence. 

29.  As said in Cheng Chi Wai, seriousness is not just to be gauged by reference to the offence so that theft compared to armed robbery becomes characterised as a less serious offence.  Theft itself has an enormous range of culpability.  It can be nothing more than the shoplifting of a chocolate bar by a teenager to the theft of a large amount of money or property of high value. Theft as an offence can be committed in circumstances which make it serious offence and theft of motor vehicles is one such example. 

30.  This form of theft has long been regarded as serious offence because of its prevalence, the value of the property involved and the impact upon society and also the difficulties of detection.  Consequently, the primary offence of stolen vehicles should normally be regarded as a serious offence.  In the present case however, I do accept that in light of the relatively lower value of the motorcycle as well as the relatively low value of the bicycle in general albeit that one of the bicycles is a high-end-market luxury bicycle valued at $15,000, they should not be regarded in the same level of seriousness as the other cases we are dealing with in relation to motor vehicles with a value of perhaps hundred thousands of dollars.    

31.  In relation to the provision of a regular outlet of stolen goods as an aggravating factor, if a person who provides and of course is known to provide a handling service to thieves undoubtedly nourishes in a very real albeit indirect way the commission of a crime.  It brings the handler closer to the primary offence and significantly adds to the seriousness of his criminal conduct.  This is what the Court of Appeal has said in the case of Cheng Chi Wai.

32.  In the present case, the defendant in no less than two occasions had repeatedly, according to mitigation at least, bought bicycles from others in such a low value, knowing full well that those are stolen properties.  What is more, he also committed the last handling charge whilst on police bail.  In so doing, he was in effect providing an outlet for the thief of the bicycles and therefore indirectly encouraged the commission of the theft of these bicycles. I bear all these aggravating factors in mind when I come to sentence the defendant.

33.  After taking the matter into serious consideration, normally, as I have said in cases involving ordinary motor vehicles, the theft or handling of a motor vehicle of this kind will attract a starting point of no less than 4 years.  But in light of the fact that we are dealing with a much lower-value motor vehicle in Charge 2 and also a much lower value of the bicycles in other Charge 3 and 4, I will therefore adopt a somewhat lower starting point to reflect the seriousness of the matter.

34.  In the end, in respect of Charge 2, a starting point of 24 months is adopted and in the case of Charge 3 and 4, a lower starting point of 18 months and 15 months was warranted.  As to the remaining resisting-arrest offence, a starting point of 6 months is adopted.  I shall add another 3 months on Charge 4 as this offence was committed whilst on police bail.  In the end, in the case of Charge 3 and 4, the starting point is both 18 months in each charge.

35.  I can detect no particular ground for further reducing the sentence from the mitigation.  The defendant pleaded guilty, for which he would receive the normal one-third discount.  After reduction, the resulting sentence in each charge is as follows:-

Charge 2 : 16 months

Charge 3 : 12 months

Charge 4 : 12 months

Charge 5 : 4 months

36.  As a matter of principle of totality, I finally decided that the sentences on Charge 3 and Charge 4 would run concurrently but out of which 6 months’ imprisonment will have to be served consecutively to the sentence on Charge 2, making the total of the three charges of handling stolen goods one of 22 months’ imprisonment. 

37.  Lastly, the sentence on Charge 5 should be wholly consecutive to the other remaining three handling charges (Charge 2-4) as it is a separate and distinct offence committed by the defendant in the course of being arrested.  

38.  The total imprisonment terms in respect of the four charges is therefore one of 26 months’ imprisonment.  This sentence will also have to be served consecutively to his current sentence.