HKSAR v. WEI YUANKE

DCCC 1067/2017

[2018] HKDC 1239

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1067 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, and a charge of handling stolen goods, contrary to section 24 of the Theft Ordinance.

Agreed facts

Charge 1

2.  According to PW1, he left his home with windows and doors secured at 1:30 pm on 2 October 2014.  When he returned later on the same day, he found that the window grille of the kitchen detached and exterior door of the kitchen opened.

3.  Upon checking, PW1 found that the door of the bedroom on the 1st floor was prized open and that there were signs of ransacking inside the bedroom.  About 200 red packets containing cash of HK$10,000 were found missing from one of the bedside cabinet drawers in the master bedroom.  The repair fee for the damaged property was about HK$6,000.

4.  Case was reported to police.  DNA sample was collected from the drawer handle of the cabinet and was sent to Government Laboratory for the DNA examination and comparison which revealed that DNA sample found on the drawer handle of the cabinet could have originated from the defendant with RMP of 1 in 33 quadrillion.

5.  At all times, the defendant did not have any right or permission to enter the premises, and he entered the same as trespasser and stole the red packets, total value of HK$10,000 from the premises. 

Charge 2

6.  PW2 is a resident on the 1st floor of 31 La Salle Road, Kowloon, Hong Kong.  At about 10 pm on 10 August 2017, he left his Omega watch on the TV cabinet in his bedroom.  At around 8 am the next morning, he found that the same was missing.  On 13 August 2017, he instructed his maid at the premises to locate the watch.

7.  On the same day, domestic maid found that a window of PW2’s bedroom was left open and which was always closed.  Moreover, there were empty jewellery boxes left on the canopy outside the window.  Upon checking, PW2 and his son found that some valuables were missing from his premises.  They called the police.

8.  Subsequently, it was confirmed that valuables amounting to HK$1,319,210 were missing from the premises.

9.  On 12 August 2017, the defendant was arrested.  Upon search of the defendant, properties stolen from the property of PW2 were found.  They include flashlight valued at $10, Rado watch valued at $3,000, Titus watch valued at $3,000, Omega watch valued at $500, ten five-dollars Hong Kong notes and six 1-cent Hong Kong dollar notes valued at $2,000 and a Tag Heuer watch value at $20,000.

10.  PW2 and his son confirmed that these are their belongings. 

11.  In the video-recorded interview conducted in the evening of 13 August 2017, under caution, the defendant stated, inter alia, that:-

(a) He worked as a decoration worker with an average monthly income of $2,000 to $3,000, sometimes up to $8,000;

(b) His household expenses were about $1,000 per month;

(c) He did not have other source of income and did not have much saving;

(d) He claimed that he brought about RMB$20,000 to Hong Kong;

(e) He claimed that he bought the second-hand “Omega” watch at RMB¥42,000 in October 2016;

(f) He claimed that his friend gave him the “Tag Heuer” watch to be repaired in Hong Kong;

(g) He claimed that he bought two new watches (“Rado” and “Titus”) at about RMB¥8,000 from a stall in Mongkok for his friends;

(h) He claimed that he had no receipts for the two watches, as it was cheaper to buy them without receipts;

(i) He claimed that the two new watches had no boxes; and

(ii) He claimed that he bought the old banknotes from an exchange shop at $320 in year 2012 and wanted to sell them in Hong Kong if the price was acceptable.

12.  In another video-recorded interview conducted on 18 September 2017, under caution, the defendant stated, inter alia, that:-

(a) He claimed that he had never been to the premises of PW2;

(b) He claimed that he was shopping in Mongkok at the material time;

(c) He claimed that he bought the “Rado” and the “Titus” watch at about RMB¥8,000 from a stall in Mongkok.

(d) He claimed that he could not remember the location of the stall; and

(e) He claimed that he bought the torch in Dongguan.

13.  At all material times, the defendant knew or believed that the aforesaid items found on him were stolen property and dishonestly received the stolen goods valued at $28,510.

Criminal record

14.  The defendant has a clear record in Hong Kong. 

Mitigation

15.  The defendant is aged 40.

16.  He is a visitor to Hong Kong from the mainland.

17.  He received education up to lower secondary level.  He is single and lives with his mother aged 78.  He lost sight in his left eye due to a traffic accident in 2009, and his left shoulder and left upper arm were also fractured. He said that he had borrowed RMB¥10,000 for medical expenses and he still needed another RMB¥20,000 to RMB¥30,000 as medical expenses to remove the metal plate inserted on the fractured site. 

18.  He said because of his disability, he was paid less wages whilst he worked in the construction site.

19.  It was advanced by Ms Chow on the defendant’s behalf that there was no sophistication in the commission of the burglary in the 1st charge and that it is likely that this is an opportunistic burglary and no one was alarmed by the burglary incident.

20.  In relation to the 2nd charge, although total value of goods amounted to $1.3 million as far as the burglary incident is concerned, the actual amount of goods involved for the 2nd charge was only $28,510.

21.  Ms Chow said that her instruction was that the defendant bumped into his fellow clansmen and was asked to deliver these items to mainland for a reward, amount of which is not agreed. 

22.  She urged the court to treat defendant as an opportunistic handler and not a professional one providing services to professional criminals. 

23.  She concedes that the sentence of the 2nd charge should be consecutive to that of the 1st charge but she urged this court to consider totality principle so that the defendant could return to his aged mother.

Discussion

1st Charge

24.  Considering the nature of the two charges, the only appropriate sentence is a term of imprisonment.

25.  The maximum sentence on conviction upon indictment for this 1st charge is 14 years’ imprisonment.  The starting point for a simple burglary of domestic premises committed by a fresh offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

26.  I have considered if this is as submitted by defence counsel an opportunistic burglary and found that this is not.

27.  PW1 has confirmed that all doors and windows were secured before leaving his home and the window grille of the kitchen on the ground floor was detached on return.  The defendant must be equipped with tools for commission of this offence.

28.  He is clearly a professional burglar.  Although he has a clear record in Hong Kong but as he is a visitor, the same is not too meaningful as far as mitigation is concerned, especially in circumstances when his entry or departure in Hong Kong at time of offence or his entry or presence in Hong Kong at time of offence was not registered with the Immigration Department. 

29.  The amount of property stolen and the repair fee involved for the damaged property is not substantial. 

30.  He is a visitor to Hong Kong but he has come here specifically to commit this offence.  We do not know when he arrived in Hong Kong before the commission of the offence in the 1st charge but the fact that he has chosen to enter Hong Kong without registering the arrival and the departure is highly suspicious.  On this occasion, I am prepared not to find that he came here to Hong Kong to specifically commit the offence in the 1st charge.

31.  Having considered the mitigation on the defendant’s behalf, I must say that the only and most valid mitigating factor is his timely plea.  Adopting the 3-year starting point, the defendant, having pleaded guilty, he is entitled to one-third sentencing discount.  Accordingly, he is sentenced to 2 years’ imprisonment for the 1st charge. 

2nd Charge

32.  The maximum sentence on conviction upon indictment for this charge is 14 years’ imprisonment.  There is no sentencing tariff for the 2nd charge because the culpability or criminality of the defendant can be very different, depending on the facts of a particular case.

33.  In the English Court of Appeal case of R v Bernard Webbe  & Ors [2002] 1 Cr App R(S) 22, the court set out aggravating factors that should be taken into account before arriving at an appropriate sentence.

34.  These factors were set out in paragraph 20 of the said judgment and are as follows:-

“(1) The closeness of the handler to the primary offence. (We add that 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 a 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 section 151(2) of the Powers of Criminal Courts (Sentencing) Act 2000, the commission of an offence while on bail.”

35.  In paragraphs 21 to 22 of the said judgment, the court continued to say that:-

“21. We also agree with the mitigating factors identified as being amongst those relevant … 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.

22. We also agree … that other factors to be taken into consideration include personal mitigation, ready co-operation with police, previous convictions especially for offences of dishonesty and a timely plea of guilty.”

36.  The factors aggravating or mitigating the offence of handling stolen goods as identified in Bernard Webbe case have been followed and applied by courts in Hong Kong in the cases Xiao Wei CACC 225/2003 and Secretary for Justice v Cheng Chi Wai [2012] 4 HKLR 360.

37.  On an examination of our case here, there are two aggravating factors identified.

38.  Firstly, the defendant was in possession of part of the stolen goods only no more than 40 hours after they were burgled from PW2’s residence, i.e. 10 pm on 10 August 2017 and 1:24 pm on 12 August 2017 which obviously provided a safe haven or route for disposal on removal of the stolen goods.

39.  Because of the proximity in time between the burglary and the handling, the defendant must have obtained the goods directly from the actual burglar or his associates, knowing these items were stolen property, providing handling service for the burglar for the benefit of himself.  His culpability in the offence was close to though lower than that of the actual burglary.

40.  Secondly, these goods were all proceeds of a domestic burglary.  It is noted that there is no sophistication in the handling of the goods nor was there any evidence that the defendant received substantial profit in return from the handling.  The value of the goods handled by the defendant was not substantial.

41.  In the case of Xiao Wei, the appellant who was a mainlander coming to Hong Kong on a two-way permit, he pawned a Rolex watch worth $11,200 and obtained $3,500, and this pawning took place about in less than six hours after the watch had been stolen in domestic burglary.  The appellant claimed he had been asked by his friend to pawn the watch and that he was given $1,000 as reward.  He was convicted after trial of one charge of handling stolen goods.  The Court of Appeal held that the proper starting point was 18 months’ imprisonment, and he enhanced the sentence to 27 months on account of the poor criminal record of the appellant.

42.  In the present case, the value of the stolen goods’ value is $28,510, more than two times the value of the goods involved in the Xiao Wei case, coupled with the fact that the defendant here came to Hong Kong and committed the 2nd charge offence shortly after his arrival in circumstances when he said he was in financial difficulty even to pay for his operation to remove the metal plate.  This court finds without doubt that he came here specifically to commit the offence which is an aggravating factor, and in the circumstances, this court adopts 21 months’ imprisonment as the sentencing starting point for the 2nd charge.

43.  As said earlier, the only valid mitigating factor in respect of this is his guilty plea, of which he is entitled to one-third sentencing discount.  He is therefore sentenced to 14 months’ imprisonment for this offence.

44.  Offences in the 1st charge and 2nd charge are entirely separate and distinct.  In terms of time, they are three years apart, different locations and different victims.  No doubt the sentencing for the two charges should be consecutive to each other.

45.  I now consider the totality principle.  Considering all the circumstances in this case, this court considers that the 3 years’ imprisonment is a just and proportionate sentence in relation to the culpability of the defendant in the circumstances of this case.  Accordingly, I now order that 2 months of the sentence in the 2nd charge should run concurrent to the sentence in the 1st charge, and 12 months of the sentence in the 2nd charge shall run consecutive to the sentence in the 1st charge, resulting in a total sentence of 3 years’ imprisonment for the defendant in relation to the two charges.