HKSAR v. Ng Wing Kei

DCCC 800/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 800 OF 2016

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REASONS FOR SENTENCE

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Charges

1.The defendant was convicted of a count handling stolen goods (2^nd charge) on his own guilty plea.  On the other hand, he pleaded not guilty to the 1^st charge of conspiracy to burgle which was not proceeded with by the prosecution.  The same was ordered to be left in court’s file which could not be proceeded with without court’s leave.

Summary of facts

2.The premises in question located in Mongkok[1] was segregated into three rooms A, B and C which were respectively occupied by PW1-PW4(Room A), PW5(Room B) and the defendant together his girlfriend(Room C).

3.At about 4:30 pm on 6 June 2016, PW1 locked the door before leaving the empty room A.  Upon return, he found the lock of the door broken and some drawers inside the room opened.  After checking, PW1 confirmed that 5 watches, 5 packs of cigarettes, 1 golden necklace and a pair of sunglasses were missing.

4.At around 1:00 pm the next day on 7 June 2016, PW5 heard some noise coming from the iron gate of the door of his residence at Room B.  When he opened the door, he saw a male prizing open the gate with a crowbar. The male fled leaving the crowbar (E1) on the ground.  PW5 confirmed that the burglar was not a resident of Room A or C.

5.Later on the same day when the police were conducting investigation near the scene, the defendant appeared in the vicinity and was intercepted.  Upon enquiry, the defendant revealed that the crowbar seized by the police looked similar to the one left in his home by his friend called Lui Cheong.

6.Upon search of the defendant’s residence at Room C, 8 watches (E2-E9), 3 packs of cigarettes (E10), 2 pairs of sunglasses (E11-E12) and an empty crowbar case (E13) were found in the living room.

7.Under caution, the defendant said that the incident had nothing to do with him, and the crowbar belonged to Lui Cheong.  He also claimed that Lui cheong had burgled somewhere yesterday and left E2-E13 at his place.

8.PW1-PW4 confirmed the following stolen items were their missing properties after the burglary happened the day before:-

Exhibit	Particulars	Owner
E2	One “Invicta” watch (valued at HKD 500)	PW2
E3	One “Burberry” watch (valued at HKD 400)	PW4
E4	One “EYKI” watch	Could not be located
E5	One “Submarine” watch	Could not be located
E6	One “Montblanc” watch (valued at HKD 500)	PW3
E7	One “Tagheuer” watch (valued at HKD 500)	PW3
E8	One “CK” watch	Could not be located
E9	One “TRU TIME” watch (valued at HKD500)	PW3
E10	Three packs of “PALL MALL” cigarettes (valued at HKD 150 in total)	PW2
E11	A pair of “Ray Ban” Sunglasses (valued at HKD1,100	PW1
E12	A pair of “Ray Ban” Sunglasses	Could not be located

9.During 2 subsequent video recorded interviews, the defendant further admitted, under caution, that:-

(a) Lui cheong was a Chinese male in his 30s and he was a friend of his friend Cheng Wai. Cheng called on a day and asked him to let Lui to stay in his place for a while. He did not really know Lui and did not have his contact number.

(b) Lui then went to his home with a crowbar and said he was going to burgle somewhere. Lui said the flat next to his looked nice. However, the defendant thought he was only kidding and he went to sleep;

(c) when he woke up, he saw the seized items in the living room but the crowbar was not there anymore. Lui did not mention when he would take back those items.

Mitigation

10.The defendant is 39 years old and living at Room C of the premises in question with his girlfriend.  He worked as a construction worker.  He had a long history of criminal records since 1994.  More than 20 out of 30 odds of them were theft related offences.  He was lastly convicted of the same offence of handling in December 2011 and was sentenced to 6 months’ imprisonment.  The defendant was remanded since his arrest of the offence

11.Three mitigation letters were submitted to the court.  The defendant expressed his deep remorse and said he committed the offence due to financial pressure.  The social worker commented that the defendant showed real incentive to change his life especially on his problem of drug addiction.

12.It was mitigated that he just let Lui to leave the stolen properties in his room and did not have any intention to resell them.  It was also said that the value of the stolen properties was not substantial and the handling was not sophisticated at all.  It was also said by defence solicitor that the defendant was very cooperative when taxed by the police about the whereabout and contact of that Lui Cheong.

Sentence

13.There is no sentencing guideline for the present offence as the sentence of the same is very fact sensitive.  There is however some helpful assistance set out in R v Bernard Webbe & others [2002] 1 Cr App R (S) 22 referred to by the Court of Appeal in HKSAR v Xiao Wei as to certain aggravating factors which may affect sentencing in handling case. In determining the sentence of the present case, I have considered the following factors:-

(a) The closeness of the handler to the primary offence: the defendant knew Lui would be burgling his neighbor and saw him carrying a crowbar shortly before the offence. He then saw the stolen properties placed in his room and kept them until the arrest;

(b) Seriousness of the primary offence: domestic burglary is a serious offence and it was defendant’s neighbor;

(c) Value of the stolen properties: it was agreed by both parties that the stolen properties were not more than $5,000 in total;

(d) Sophistication in relation to the handling: on evidence, the defendant just allowed the stolen properties to be left in his room;

(e) Profit made or expected by the handler: no evidence showing the defendant was going to resell the properties, but it would be unrealistic that defendant would not have any profit at all for retaining the stolen properties for Lui; and

(f) Background and all mitigation put forward on behalf of the defendant: among other things, the defendant is a repeated offender of theft related offences

14.Having considered all the circumstances, I take 2 years’ imprisonment as the starting point, as the defendant has indicated his guilty plea before trial date is fixed, a full one third discount is warranted. The sentence is therefore reduced to 16 months’ imprisonment.