HKSAR v. Lee Tsz Wang and Another

DCCC 1021/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1021 OF 2015

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Reasons for Sentence

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1.Both the 1st and 2nd defendant were arrested together on 6 August 2015, on a rooftop of 97 Connaught Road West. The police approached them when they thought they were acting suspiciously. Today, the 1st defendant has pleaded guilty to a theft of a construction site pass between 25 July 2015 and 6 August 2015. The 2nd defendant has pleaded guilty to a more serious offence of handling stolen goods. These items were stolen in a burglary two days prior to his arrest.

2.For Charge 1, a construction site worker lost his pass, his access to the site where he worked on 25 July.  This pass was found by the police in the 1st defendant’s pocket. 

There is no evidence that the 1st defendant tried to use this pass and there is no evidence that anybody suffered any loss as a result of the defendant pocketing this pass. On those facts, this is essentially a theft by finding.

3.For Charge 2, on 4 August, the victim of a burglary left her home at about 11 am, only to return that evening to find that there had been a break-in, a drawer prised open, and some valuables stolen.  Those valuables included jewellery, a mobile phone, and a Kindle. 

4.As I have said, two days later, on 6 August, the police saw the 1st and 2nd defendant together on this rooftop and approached them.  One officer saw the 1st defendant whisper to the 2nd defendant, and both of them stood up with the 2nd defendant putting in his rucksack a jewellery box that had previously been placed next to the 1st defendant.  The police then searched this rucksack.  They found that jewellery box and other items all belonging to the victim of the burglary.  They also found a pawn shop ticket.

5.Both defendants were arrested and upon investigation, the pawn shop ticket was evidence of some jewellery belonging to the victim of the burglary that had been pawned for $2,500 on the date of the burglary by the 2nd defendant.

6.The value of victim’s stolen property, totalled about $56,000.

7.Both the 1st and 2nd defendant admitted their respective offences under caution.  In fact, in the facts before me today, the 2nd defendant told the police that he had pawned the items for $2,500 and then spent the money on playing video games.  He also told the police that he suspected that the items he pawned and the items in his possession at the time of his arrest were stolen items.

8.In previous facts before the court, there were more details of the 2nd defendant’s video-recorded interview.  He told the police that he had met the 1st defendant when they were both sleeping on the rooftop.  The 1st defendant asked the 2nd defendant to go out with him, and en route he asked the 2nd defendant to hold his bag.  He also asked the 2nd defendant to go into the pawn shop and pawn some items.  They then went together and spent the money in an amusement game centre. 

9.The 2nd defendant did ask the 1st defendant where the items had come from, but 1st defendant would not tell him.  Despite his suspicion, he pawned the items and carried other items.  This does not constitute an excuse for the 2nd defendant and nor is it evidence against the 1st defendant of his involvement in the burglary or the stolen items.  However, I am inclined to believe there is some truth in the 2nd defendant’s video-recorded interview mainly because he was, until today, a man with a clear record.  I am told today that his instructions are that what he told the police after his arrest was in fact true. 

10.The 1st defendant is, I have heard in mitigation, 30 years old and single.  He does have a job earning $7,500 a month, but no permanent residence.  He is semi-homeless, sometimes sleeping on friends’ sofas or on rooftops.  He picked up this construction site pass and put it in his pocket.  He is not a man with a clear record, he has seven previous convictions of which two relate to offences of dishonesty. 

11.However, as I have said, from the facts there is no evidence that he intended to or did use the pass for any reason.  Despite the 2nd defendant’s video-recorded interview, I cannot or will not take into account what he said about the 1st defendant, implicating him in the stolen goods.  I can only impose a sentence for Charge 1, directly relating to the facts as agreed.  According to the facts, it is no more than a theft by finding.

12.1st defendant, please stand up.  Having said all that, I will take a starting point of 3 months’ imprisonment.  You pleaded guilty, you are entitled to a discount of one-third.  Charge 1, you are sentenced to 2 months’ imprisonment.

13.2nd defendant, I have taken into account several factors including your plea today; the value of the items stolen and found in your possession; the explanation you gave to the police; mitigation put forward; and lastly, the fact you had, until today, a clear record.

14.I have also to take into account two authorities that I had been referred to.  The first being The Queen v Bernard Webb [2002] 1 CAR 22 where the Court of Appeal in England had, in that authority, identified nine aggravating factors for offences of this nature.  I have taken those factors into account.  In particular, I have taken into account the value of the goods as well as the fact they came from a domestic premises burglary.  I also take into account the time of the burglary and the fact you were arrested two days later.

15.There is no other direct evidence that link you to the burglary.  For example, there is no evidence that you were arranged by the burglars to dispose of the stolen items.  I have also, reading that authority, taken into account the fact it is relevant your clear record and that it is possible to treat this as a one-off offence by an otherwise honest man.  In your case, I am sure, tempted by some money.

16.I have also taken into account another authority, HKSAR v Koo Tsang Wing CACC 401/2013.  There, for a handling stolen goods offence, a 3-year starting point was considered appropriate.  However, that appellant had a poor criminal record including several burglary convictions and the value of that burglary was about HK$3.5 million.

17.I have been told in mitigation that the defendant is 33-year-old and although he is a Filipino national, he is a permanent resident.  He has family here and was educated here.  Since 18 years old, he has been employed in the hotel or restaurant trade. However, in April 2015, the restaurant he was working in closed down and he was unemployed, which may explain the temptation in committing this offence despite his suspicions. 

18.I have also been told the defendant from a previous marriage has two teenage children, and his girlfriend has only just last month, given birth to a baby.  In fact, the defendant has not yet seen the baby.  That is sad for the baby and his girlfriend to suffer as a consequence of the defendant’s offence; his stupidity and greediness.  But I accept from the defendant’s plea that he is remorseful. 

19.Having considered all those factors, I take a starting point of 2 years’ imprisonment.  This is lower than I would consider appropriate, mainly to reflect the defendant’s previous clear record.  The defendant has pleaded guilty and is therefore entitled to a discount of one-third off that starting point.  After that discount is applied, for the 2nd charge the 2nd defendant is sentenced to 1 year and 4 months’ imprisonment.