HKSAR v. Leung Wai Lun
Read the full judgment text of DCCC 304/2017 on BabelCite. This District Court judgment.
1. The defendant pleaded guilty to two charges of handling stolen goods [1] .
Cites 3 cases
|
DCCC 304/2017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 304 OF 2017 -----------------------------------
-----------------------------------
---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to two charges of handling stolen goods[1]. Summary of facts The robbery 2.At about 9am on 22nd November 2016, self-employed driver Mr Wong was unloading some gold bars that he was delivering to a precious metal factory onto a trolley outside no.31 On Chuen Street in Fanling when 3 men armed with knives jumped off a private vehicle and sprayed some unknown substance in his eyes. 3.The 3 masked men stood beside Mr Wong. One of them threatened him with a knife. 4.Then the 3 men snatched away 3 bags from the trolley with 81 gold bars inside and fled. The 81 gold bars weighed 1kg each, with a total value of HK$22.68 million at approximately HK$280,000 each. The apprehension of the defendant and recovery of some of the gold bars 5.44 days after the robbery, at about 4 pm on 5th January 2017, Police officers intercepted the defendant inside Sheng Shui MTR station and found 2 gold bars on his person. The defendant was arrested for robbery and brought back to Sheung Shui police station. 6.Under caution, the defendant claimed that he was only responsible for receiving the gold bars and was not involved in the robbery. He was rewarded 11 gold bars and did not know where the rest of the gold bars were. 7.At about 7 pm on the same day of the arrest, a house search was conducted at the residence of the defendant’s mother at a unit in Choi Wu House, Choi Yuen Estate. 8.A locked suitcase was found in the storage compartment under the only bed in the flat. A key that was seized earlier from the defendant was used to open the suitcase. Inside the suitcase were 5 more gold bars inside a tissue box that was wrapped inside some clothing items. 9.Under caution, the defendant said these 5 gold bars were part of the 11 that he had received. The defendant’s story 10.In 2 subsequent video recorded interviews, the defendant provided the Police with further information. 11.A few months before the robbery, the defendant made the acquaintance of a man at a nightclub in Shaoguan in mainland China. A few days before the robbery, the man told him that he will be committing a robbery and asked the defendant to receive and hold the gold bars. The man promised the defendant that he would be given 11 gold bars as a reward. 12.The defendant also said in the interview that one day before the robbery, the man gave a new mobile phone with a SIM card inside to the defendant. The phone and the card had both been discarded afterwards. 13.The defendant did not know when the robbery had taken place until he saw it in the news. 14.At about 10am on 22nd November 2016 (day of the robbery), the defendant got a call from the man who told him to collect the gold bars. The man arrived at Oi Man Estate driving a taxi and passed a suitcase with the gold bars inside to the defendant. 15.The defendant had the suitcase in his home in Oi Man Estate until around 11pm that night when the man called and asked for the gold bars back. The defendant brought the suitcase to a nearby petrol station and handed it over to the same man, who was driving the taxi. 16.The man opened the suitcase with a key and combination codes. He took out 11 gold bars and gave them to the defendant as promised. The defendant saw that there were about 70 gold bars remaining inside the suitcase. 17.Later, the defendant took his 11 gold bars to his mother’s home in Choi Yuen Estate. 18.The defendant put the gold bars inside a tissue box, wrapped it with some clothing, put it inside his own suitcase and placed the suitcase under the bed. He chose to put the gold bars in his mother’s home because it was closer for him to bring them to mainland China. 19.A few weeks before the defendant’s arrest, he sold 4 of the 11 gold bars in Shenzhen for RMB$250,000 each, receiving RMB$1 million in cash. 20.The defendant used some of that money to rent a flat in Lai Chi Kok and furnished it (the defendant retracted the furnishing part in the later interview, saying that he had utilized his savings instead). He gambled in Macau and lost about $200,000. The rest of the money was spent on entertainment. 21.The gold bars found from the suitcase in the storage compartment of the bed were the 7 remaining ones. 22.The defendant was on his way to Shenzhen to sell the two gold bars on his person when he was stopped and arrested on 5th January. Facts from Police investigation 23.The 7 recovered gold bars were later confirmed by their owner to be part of the batch of gold bars stolen in the robbery. 24.CCTV footages from the defendant’s then home at Oi Man Estate and the defendant’s mother’s home at Choi Yuen Estate captured the following movements of the defendant. 25.At 7:18 am on the day of the robbery, the defendant left Oi Man Estate empty handed. At 11:08am, the defendant returned with a large and apparently heavy suitcase. At 7:33 pm the same evening, the defendant left Oi Man Estate with a similar large and heavy suitcase. 26.At 8:31pm, 4 days after the robbery on 26th November, the defendant left Oi Man Estate carrying a small suitcase. About 1 hour later at 9:28 pm, the defendant appeared in Choi Yuen Estate carrying the same suitcase. He left his mother’s building about 6 minutes later without the suitcase. 27.5 days later, on 1st December, the defendant showed up at Choi Yuen Estate at 4 pm carrying a plastic bag. He left 26 minutes later, carrying the same plastic bag. 28.2 days later on 3rd December, the defendant showed up at Choi Yuen Estate at 5:05 pm and left 20 minutes later. He was not carrying any luggage on this occasion. 29.1 day later on 4th December, the defendant showed up at Choi Yuen Estate at 5:02 pm and left after 40 minutes. He was not carrying any luggage on this occasion. 30.1 month later, on 5th January 2017, which is the day of the defendant’s arrest, footages showed the defendant entering his mother’s building at 3:36 pm and left after 17 minutes. The defendant was not carrying any luggage on this occasion. 31.Charge 1 is brought against the defendant on the basis of the 11 gold bars found from the suitcase placed by the defendant at his mother’s home in Choi Yuen Estate. 32.Charge 2 is brought against the defendant on the basis of the assistance he had given the unnamed man in the retention of the suitcase with the gold bars inside and the subsequent handing over of the 70 gold bars to the man in the taxi. 33.Mr Woon for the defendant did not raise any objection as to the framing of the charges, just that the court should adopt a combined approach when sentencing. This is dealt with below. 34.The gold bars in charge 1 and 2 are valued at HK$3,080,000 and HK$19,600,000 respectively, making a total of HK$22,680,000. Previous convictions 35.The defendant has one previous conviction for trafficking in dangerous drugs when he was sentenced to 5 years’ imprisonment in the High Court in 1994. He was discharged from prison on 25th September 1999. 36.Given the different nature of the offence behind that conviction and the fact that it was over 23 years ago, I do not find the defendant’s criminal record an aggravating factor. Mitigation 37.The defendant is 41, single. He was educated up to Form 1 level in Hong Kong. At the time of his arrest, he was working as a casual construction site and decoration worker, earning about $15,000 per month. 38.Mr Woon told the court that the defendant committed the present offences out of greed and necessity to repay his debts to loan sharks. 39.Part of the $1 million odd the defendant had realized from selling 4 of the gold bars were used to repay the loan sharks. The rest, however, were all spent on further gambling and at visits to nightclubs and through other forms of entertainment. 40.Mr Woon accepted that restitution is impossible, but pointed out that 7 of the gold bars had been recovered and will be returned to the owner. 41.Mr Woon, very fairly, conceded that 4 of the 9 aggravating factors identified in the case of Secretary for Justice v Cheng Chi Wai [2012] 4 HKLRD 360 (CAAR 2/2011 heard together with CACC 94/2011) are present in his client’s case. This will be discussed below. 42.Mr Woon agreed that the court should look at the case as the defendant handling all 81 gold bars, with the 11 gold bars being viewed as his reward. 43.It is Mr Woon’s submission that the defendant’s handling is a one-off offence. There is no evidence to suggest that the defendant was a professional handler. All but 11 of the gold bars were kept in the defendant’s possession for just around 10 hours and then they were handed back to the man from Shaoguan. 44.Lastly, Mr Woon pointed out that the defendant had been cooperative with the Police and had given a detailed account of his role in the matter. Sentence 45.The maximum sentence on conviction upon indictment for an offence of handling stolen goods is that of 14 years’ imprisonment. 46.In Secretary for Justice v Cheng Chi Wai (supra), the Court of Appeal was invited to review a sentence of 3 years 6 months’ imprisonment imposed on the respondent for 5 charges of handling stolen goods after trial. 47.The Court referred to the English Court of Appeal decision of R v Bernard Webbe & others [2002] 1 Cr App R(S) 22, where the following 9 aggravating factors were identified:
48.In relation to the factor of closeness to the primary offence, the Hong Kong Court agreed with the English Court that “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.” 49.The Secretary for Justice asserted that the starting point was too low given the presence of the following aggravating factors in that case, namely closeness to the primary offence, the sophistication of the handling and the provision of a regular outlet for stolen goods. 50.The Court of Appeal found that the evidence showed a well-organized and well set up operation for the receiving, re-packaging, breaking-up and disposal of stolen motor vehicles by a handler whose illegal services were well known to those who stole motor vehicles, and which constituted a significant part of the handler’s day-to-day operations. 51.The facts placed the respondent in the range of serious handling offences, being a professional handler providing professional service to professional criminals. The starting point must reflect this level of culpability. 52.The application to review was successful and the appropriate starting point for each of the offences was adjusted upwards to 5 years’ imprisonment. 53.As to totality, the Court found that each of the offences represented a different episode of criminal activity and each offence added to the overall culpability of the respondent. Not to increase his sentence to reflect the additional culpability would have allowed him to escape punishment for his crimes. 54.The Court was of the view that “a further 1 year imprisonment will provide a sentence which is “sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation” but which will not be unfair to, or crushing on, the respondent. It will be both a just and fair sentence.” 55.Of the 6 year sentence, the Court granted a 6 month discount, recognizing that there had been a substantial increase from the original sentence. The final total sentence was 5 years 6 months’ imprisonment. The present case 56.Turning to our case, as conceded by Mr Woon, I find the following 4 aggravating factors present. Closeness to the primary offence 57.The defendant was told about the pending robbery a few days before it took place. 58.The defendant received the call from the man to collect the gold bars at around 10am, which was less than an hour after the robbery. 59.According to CCTV footages, the defendant was hauling a heavy suitcase at around 11am, which was about 2 hours after the robbery. 60.The gold bars were then handed back to the man at around 11pm that night. 61.For around 12 hours, the defendant provided a safe haven for the stolen goods, allowing the robbers to be more mobile in trying to avoid being noticed and captured, and preventing the Police from recovering the stolen property. 62.I find that there was a temporal closeness between the defendant’s handling of the gold bars and the robbery. Particular seriousness of the primary offence 63.The gold bars were taken during an armed robbery that involved at least 3 robbers and spraying of a substance into the eyes of Mr Wong, as well as him being threatened by a knife by one of the robbers. 64.According to the sentencing guidelines in the case of Mo Kwong Sang v The Queen, CACC 359/1981, the robbery would have attracted a starting point of at least 5 years, and possibly 7 years’ imprisonment if the relevant aggravating factors are taken into consideration. There is no doubt that the primary offence in our case is serious. High value of the goods to the loser 65.The total value of the handled goods is HK$22.68 million. It is a high value. High level of profit made or expected by the handler 66.As at the time of the his arrest, the defendant had already sold 4 gold bars for RMB$1 million at $250,000 each. On the day of his arrest, he was on his way to sell two more, with a prospective profit of $500,000. Had he been able to sell all 11 gold bars at a similar price, the defendant would have made a total profit of $2.75 million. The level of profit is high. Mitigating factor mentioned in Webbe 67.As for mitigating factors, I find that only one of the mitigating factors mentioned in the case of Webbe is present, which is that it would appear that the handling was a one-off offence. Totality 68.The receiving of the gold bars in both charges arose out of the same robbery and out of the same agreement between the defendant and the man he met in Shaoguan. Although the defendant’s rewards are in the form of the gold bars in charge 1, they were the reward for the defendant’s handling of all 81 gold bars. That being the case, I find that a combined approach to the sentences based on the handling of all 81 gold bars is the correct approach. 69.I find that given the circumstances of the commission of the offences, the defendant’s culpability is slightly less serious than that of the respondent in Cheng Chi Wai since it was a one-off offence. When I say slightly less serious, I meant when compared to the overall 6 years sentence after considering totality. 70.Nevertheless, given the presence of the aggravating factors mentioned above, I find that an immediate custodial sentence is the only option in our present case, and that a global starting point of 5 years 6 months’ imprisonment would be appropriate for the handling of 81 gold bars. 71.To achieve that sentence, I adopt the same starting point for both charges and order the sentences to be served wholly concurrently. 72.Since the defendant had entered a timely plea for both charges, he is granted the full one-third discount. 73.The final total sentence for the two charges is, therefore, 44 months’ imprisonment.
|