HKSAR v. Manpreet Singh and Another
Read the full judgment text of DCCC 261/2016 on BabelCite. This District Court judgment.
1. The Defendants have each pleaded guilty to the charges they each face on the Amended Charge Sheet dated 21 st July, 2016, D2 to Counts 1 and 2 of handling stolen goods, and D1 to Count 2 of handling stolen goods, both counts contrary to Section 24 of the Theft Ordinance, Cap. 210.
Cites 3 cases
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DCCC 261/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 261 OF 2016 -----------------
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------------------------------------------- REASONS FOR SENTENCE ------------------------------------------- 1.The Defendants have each pleaded guilty to the charges they each face on the Amended Charge Sheet dated 21st July, 2016, D2 to Counts 1 and 2 of handling stolen goods, and D1 to Count 2 of handling stolen goods, both counts contrary to Section 24 of the Theft Ordinance, Cap. 210. Facts 2.Some time between 1830 hours on 24 December, 2015 and 1350 hours on 25 December, 2015, a burglary took place inside the Kam Yik Jade Shop at the Ground floor, 33 Kowloon City Road, Hung Hom, Kowloon. The proprietor of the shop, Kwok Siu-chun, has been running the shop for 40 years. He left the shop at 1830 hours on 24 December, 2015 after ensuring that the shop was properly locked and secured. The shop was secured by an iron gate and an iron panel fixed on the floor. A concrete staircase was connected to the iron panel. On his return at 1350 hours on 25 December, 2015, he found that the concrete staircase was damaged. The iron panel was pushed open, leaving an approximate gap 15 cm wide between the iron panel and the iron gate. Signs of ransacking were found inside the shop. Four jade bead pendants and 20 jade bead wrist chains and necklaces were found missing from the shop. 3.Mr. Lam Ah-ping lives with his wife and daughter in Flat 13, 6th floor, Mei King Mansion Phase 1, Nos. 2-28 Mei King Street, Hung Hom, Kowloon. They have been living there for about 20 years. At 0915 hours on 27 December, 2015, Mr. Lam left the flat after locking the door. When he returned at 1430 hours on 27 December, 2015, he found the wooden door had been prized open. There were signs of ransacking inside the flat Property valued at HK$44,600.60 were found missing from the flat. 4.On 27 December, 2015, a team of police officers were conducting an anti-crime patrol in the To Kwa Wan area in Hung Hom. At around 1630 hours, D1 and D2 were stopped for a body search outside No. 237A To Kwa Wan Road, Hung Hom. Upon search of D1, the police found RMB$2,000, 1 gold ring, 1 gold wrist chain, 1 platinum necklace, 1 gold necklace, 1 gold pendant with a white stone, 1 gold pendant with a blue stone, 1 “LV” purse, all property stolen during the burglary at Mei King Mansion Phase 1, cash HK$1,040, 1 silver earring, and 1 gold necklace from the left front pocket of D1’s trousers. Under caution, he said in punti “a friend gave me the gold to sell for him”. 5.D2 was also searched – two jade bead wrist chains and one jade bead necklace, stolen during the burglary at Kam Yik Jade Shop and 1 platinum pendant with a white stone, RMB$0.50 and 1 “Luk Fook” red box, all property stolen during the burglary at Mei King Mansion Phase 1, were found from the pockets of D2’s grey hooded jacket. Under caution, D2 said in English “My friend gave me”. 6.D1 and D2 were jointly charged in Count 2 in respect of the property found from each of them that had been stolen during the burglary at Mei King Mansion Phase 1, while D2 was also charged in Count 1 in respect of the property found on him that had been stolen during the burglary at Kam Yik Jade Shop. 7.Both D1 and D2 were interviewed on video under caution, and gave similar accounts. They were told by a male friend to sell some jewelry and each would be rewarded with HK$500. This male friend was an Indian male named Lakha. They each provided Lakha’s phone number that was on their mobile phone. They had entered Mei King Mansion Phase 1 with Lakha via the rear staircase. Whilst Lakha went upstairs, the two of them waited at the 1st floor of the rear staircase. Lakha returned after about 10 minutes and gave each of them some jewelry at the 1st floor rear staircase. D1 said he did not ask Lakha where the jewelry came from or ask why they were asked to sell the items, while D2 said he did not know why Lakha had the jewelry and when he asked Lakha about the jewelry, Lakha replied that it belonged to his family. The three of them took a taxi to Jordan and went to the Luk Fook Jewelry Shop – after checking the price, Lakha said he did not want to sell the jewelry at Luk Fook as the price offered was too low. They had been intercepted by police officers after leaving Luk Fook and Lakha told the police officers that the jewelry belonged to his family. They were allowed o go. They then took a taxi from Jordan to To Kwa Wan. D1 and D2 entered another jewelry shop in To Kwa Wan – they were arrested there. They were each shown the CCTV footage from the rear staircase of Mei King Mansion Phase 1 and identified themselves and Lakha on the CCTV footage. 8.There was no CCTV footage at Kam Yik Jade Shop. The CCTV footage installed at the rear staircase of Mei King Mansion Phase 1 captured D1, D2 and a third male they identified as Lakha entered the building at 1331 hours on 27 December, 2015 and left the building at 1414 hours on 27 December, 2015. 9.The CCTV footages from Luk Fook Jewelry at Jordan captured images of D1 and D2 and a third male inside the shop between 1537 hours and 1543 hours on 27 December, 2015. 10.The CCTV footages from Luen Hing Jewelry Co. captures the course of sale by D1 and D2 inside the shop. They were inside the shop from 1630 to 1645 hours on 27 December, 2015. They were intercepted by the police outside Luen Hing and were brought back to the shop by the police. A salesgirl in the shop confirmed she had served them and that they had just sold a gold wrist chain and a gold necklace to Luen Hing for HK$4,700 – these were items that were stolen during the burglary at Mei King Mansion Phase 1. 11.I was satisfied beyond all reasonable doubt that the facts admitted by D1 and D2 supported the charges that each faced, and accordingly I convicted D2 on Counts 1 and 2, and D1 on Count 1. Criminal Record 12.Both D1 and D2 have clear criminal records. Mitigation D1 13.D1 is now aged 25 years. He is from India. He came to Hong Kong in 2009 for political asylum and is a Form 8 recognizance holder. His claim for refugee status is yet to be determined. He is supported by his family in India that remits HK$5,000 to him each month. He shared a room with Lovepreet Singh, a relative, and D2, and paid $2,500 a month for his share of the rent.He was left with HK$2,500 each month for his personal expenses. Counsel for D1 submitted that D1 had been ‘sucked’ into committing the offence by his friend ‘Lakha’ – also known as “Lakhwinder Singh”. D1 was a native Punjabi speaker, but he was also fluent in spoken and written English and could also speak reasonably fluent Cantonese. ‘Lakha’ had contacted him on the morning of the offence and asked D1 to meet him and it was ‘Lakha’ who brought him into Mei King Mansion and asked him to wait there for him. Counsel submitted that this was corroborated by the CCTV footage from Mei King Mansion. D1 was recruited by ‘Lakha’ because of his language skills to assist to sell the jewelry to the gold shops for the relatively small award of $500. Counsel submitted that D1 had no part in the planning of the disposal of the stolen property – he was acting entirely at the behest of ‘Lakha’ who took D1 and D2 to Luk Fook – it was ‘Lakha’ who decided that the price offered was not enough and decided to try elsewhere. He led D1 and D2 to Luen Hing, but because he waited outside the shop, he was not arrested. Counsel submitted that D1 had provided the particulars of ‘Lakha’ to the police which led to ‘Lakha’s’ arrest – he was interviewed under caution, but made no admissions and was released without being charged. D1 had given a NPS statement to the police, but I was told that the police would not be relying on it. D2 14.D2 is now aged 24 years. He too is born in India and came to hong Kong in 2012. He too has sought political asylum in Hong Kong. He is a Form 8 recognizance holder. His claim for refugee status is yet to be determined. Counsel for D2 submitted that he had got married to a local Indian girl in Hong Kong in 2015 – she is a permanent Hong Kong resident, and works as an assistant restaurant manager earning $11,500 each month. According to the Background Report on D2, she was his co-habitee and had returned to live with her parents in November, 2015. Counsel submitted that D2 spoke fluent English and some Cantonese, and this was why he was asked to assist in disposing of the stolen property – his reward was to be HK$500 which he has never been paid. Counsel submitted that D2 had been used – the profit from the sale of the stolen property was enjoyed by Lakhwinder Singh. Lakhwinder Singh had been with him and D1 when they were stopped by the police in Jordan, and Lakhwinder Singh’s particulars had been recorded. 15.Counsel also submitted that the sentences on the charges admitted by D2 should be concurrent sentences, that D2 had no knowledge that the items were from 2 different burglaries – they were given to him at the same time. 16.He also submitted that D2 had co-operated with the police from the outset, providing the particulars of Lakhwinder Singh. He had also provided an NPS statement to the Prosecution, although the Prosecution have decided not to pursue it. He submitted that this was handling at the lowest level and not organized at all. He referred to HKSAR v. Xiao Wei [2003] 3 HKLRD 1063, wherein the Court of Appeal held the appropriate starting point was one of 18 months’ imprisonment. Counsel submitted that this would be the appropriate starting point. 17.After hearing Counsel in mitigation, I adjourned sentence until today, calling for Background Reports in respect of each Defendant. I am informed by Counsel that they have explained the contents of the reports to their respective clients, and on the whole each agree with the contents. D1 takes issue only with a sentence in paragraph 2 of the report wherein he blamed D2’s ill influence leading him to commint the present offence. Mr. Andrews for D1 reiterates that D1 lays no blame on D2 for his being before the Court on this occasion. Mr. Andrews also submits that the present offences do not impact upon the safety and security of the Hong Kong people and the fact that D1 is a Form 8 holder should not be viewed as an aggravating feature. Mr. Beel for D2 confirms the contents of the report save that he submits that D2 arrived in HK by air and did not sneak into Hong Kong illegally. In so far as his marriage is concerned, D2 did go through a traditional marriage with his co-habitee at the Sikh temple in Hong Kong on 13th July, 2015, although they may not have registered their marriage. In respect of paragraph 4 of the report, he confirmed that D2 maintained his pleas and his admission of the facts. Sentencing authorities 18.While not setting down any guideline sentences, the case of R v Bernard Webbe & Ors [2002] 1 Cr App R (S) 22, referred to by the Court of Appeal in HKSAR v. Xiao Wei, supra, provide some assistance as to certain aggravating factors which may affect sentencing in handling cases. These were set out in R v Bernard Webbe & Ors (at paragraph 20) as follows:
19.The English Court of Appeal also identified factors that might mitigate the offence: (1) the offence was a one-off offence committed by an otherwise honest defendant; (2) little or no benefit to the defendant; and (3) voluntary restitution to the victim. Personal mitigating factors such as (1) ready co-operation with the police, and (2) timely plea should also be considered. 20.In my view, some of the aggravating factors identified in Bernard Webbe can be seen in the present case. First, there is no doubt that the Defendants were closely connected to the primary offence in the sense that they handled the stolen property very soon after the burglaries had been committed. In respect of Count 1, involving some of the stolen property from the Kam Yik Jade Shop, which took place between 1830 hours on 24 December, 2015 and 1350 hours on 25 December, 2015, D2 was found in possession of these on 27 December, 2015. In respect of Count 2, involving some of the stolen property from the Mei King Mansion Phase 1 burglary wherein D1 and D2 were each found to be in possession of some of the stolen property at about 16.30 hours on 27 December, 2015. The CCTV footage installed at the rear staircase of Mei King Mansion Phase 1 captured D1, D2 and a third male they identified as Lakha entered the building at 1331 hours on 27 December, 2015 and left the building at 1414 hours on 27 December, 2015. Because of this close proximity in time between the offences of burglary and handling, the only reasonable and irrefutable inference is that D1 and D2 obtained the stolen property directly from the actual burglar or his associates, and then handled them with a view to realizing them into money either as an agent for the actual burglar or for the benefit of himself, knowing or believing those were stolen properties. From this perspective, the culpability of D1 and D2 in the primary offences would be very close to albeit lower than than of the actual burglar. 21.Also, burglary is a serious offence – the Court of Appeal has laid down the tariff sentence of 30 months’ imprisonment for offences of burglary for non-domestic premises, and 3 years’ imprisonment for offences of burglary for domestic premises as the starting points, in the absence of any aggravating or mitigating factors for an offender of full age with a clear record. 22.The value of the stolen property here cannot be described as small. The stolen property in Count 1 were from a burglary of non-domestic premises, whilst that for Count 2 were from of burglary of domestic premises – Mr. Lam lived in those premises with his wife and daughter. 23.As to the other aggravating factors mentioned in Bernard Webbe, I do not find them present here. Clearly, there is no sophistication in the handling here – D1 and D2 were trying to sell the stolen property at local jewelry shops. They were each to receive a reward of HK$500. They did not provide a regular outlet for the sale of stolen goods. Both Defendants have clear records and these would appear to be one-off offences. They also co-operated with the police from the outset, and have indicated their willingness to give evidence against ‘Lakha’, although the Prosecution have indicated they do not intend to rely on their testimony. 24.The maximum sentence for the offence of handling is one of 14 years’ imprisonment. In R v. Chan Wing Kwan & Another, CACC 121/1985, the Court of Appeal recognized that the normal range of sentence for the offence of handling is 2 to 4 years’ imprisonment. 25.Both D1 and D2 are Form 8 recognizance holders, and their non-refoulement claims are yet to be determined. In HKSAR v. Shah Syed Arif, CACC 298/2015, the Court of Appeal said:-
26.Here, the Defendants received stolen property, property that had been stolen in burglaries. These are offences that do have an impact on the community at large and on Hong Kong’s reputation for order and security. In the circumstances, the starting point should be enhanced. 27.Having considered the circumstances of the offence and of the Defendants, in my view the appropriate starting point is one of 18 months’ imprisonment for D2 on Count 1 and for D1 and D2 on Count 2. I would enhance this starting point by 3 months as I am satisfied that the offences are offences that have an impact on the community at large and on Hong Kong’s reputation for order and security. Therefore I would adopt a starting point of 21 months’ imprisonment for D2 on Count 1 and D1 and D2 on Count 2. 28.They are each entitled to a discount of one-third for their pleas, which in my view is the mitigation of the greatest weight before me. They have each co-operated with the police from the outset. They have each made NPS statements albeit that these have not been acted upon by the Prosecution. I am prepared to give each of them a further discount to recognize this co-operation and assistance. 29.On Count 1 for D2, I take as a starting point 21 months’ imprisonment, discount this by one-third for his plea and other mitigation put before me, and a further discount of 2 months for his assistance to and co-operation with the police. D2 is sentenced to 12 months’ imprisonment on Count 1. 30.On Count 2 for D1 and D2, I take as a starting point 21 months’ imprisonment, discount this by one-third for their pleas and other mitigation put before me, and a further discount of 2 months for their assistance to and co-operation with the police. D1 and D2 are each sentenced to 12 months’ imprisonment on Count 2. 31.Bearing totality in mind, I shall order that the sentences on Counts 1 and 2 be served concurrently by D2.
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