HKSAR v. Li Xin and Another

DCCC 265/2018

[2018] HKDC 1221

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 265 OF 2018

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

Charges and facts

1.D1 pleads guilty to burglary (1^st Charge).  D2 plead guilty to handling stolen goods (2^nd Charge).

2.D1 and D2 are citizens of the People's Republic of China. They both arrived in Hong Kong on 14 December 2017.  D1 arrived in Hong Kong via China Ferry Terminal at 22:15 on 14 December 2017. D2 arrived in Hong Kong via Lo Wu Terminal at 15:17 on 14 December 2017.

3.A music festival known as CREAMFIELDS was held at the Asia World-Expo, No. 1 Airport Expo Boulevard, Chek Lap Kok, New Territories, in Hong Kong (the "EXPO") from 15 to 16 December 2017. 

4.On the first day of CREAMFIELDS, ie. 15 December 2017, the music festival would begin at 19:00 and would last till 03:00 the following morning on 16 December 2017. Participants of CREAMFIELDS would have to first order their tickets before redeeming wristbands for identification purposes at the EXPO prior to the festival. Three colours of wristbands, namely blue, pink and green, indicate the price levels and classes of the tickets purchased. Pink wristbands are exchanged for holders of VIP tickets, which cost $3,000 per ticket. Green wristbands are VVIP tickets. The minimum cost of purchasing a VVIP ticket is HK$6,000. The wristbands cost $5 each. CREAMFIELDS VIP tickets for the first day could be purchased up till 23:59 on 15 December 2017. Staff members of the concert would help concert participants wear the concert wristbands and that once the wristbands are worn, they would have to be cut to be removed and that they could not be used again.

5.Hall 11 of the EXPO (Hall 11") was a party hall that was largely square in its shape. With an area of 4,400 square metres, Hall 11 could seat about 3,800 people. It had a main entrance and some side entrances. It was rented as a security checkpoint for CREAMFIELDS. Guests who had purchased their CREAMFIELDS tickets would have to first go through security checks and redeem and wear their wristbands in Hall 11, before proceeding to Halls 6, 8, and 10 of the EXPO, which were just separated from Hall 11 by a corridor.

6.On 15 December 2017, the main entrance of Hall 11 was manned by security personnel since noon and belt barriers were in place in the remaining entrances to Hall 11. WONG Chi-ho (“PW1”) arrived at the EXPO at about noon to set up the venue. At about 15:00, wristbands of Day 1 of the festival, ie. 15 December 2017, arrived and PW1 placed them on the 10 tables laid out inside Hall 11. The closest doors of Hall 11 were about 15 metres away from the side of the tables. PW1 then attended to other work matters. When he returned to Hall 11 later that afternoon, he found the only bag of green wristbands to have gone missing. Upon checking thc CCTV of Hall 11, PW1 realised that two unknown Chinese men took away the only bag of 60 green wristbands and a bag of 100 pink wristbands at about 15:59. The man who was wearing the same apparel as that of D1 when he was later arrested at 21:33 took away the bag of 100 pink wristbands.

7.At about 20:50 on the same day, PW1 saw a woman wearing a green wristband in Hall 11. She was intercepted and it was transpired that the green wristband was sold at the lobby of Hong Kong SkyCity Marriott Hotel, No. 1 Sky City Road East, Chek Lap Kok, New Territories (“the Hotel”). At about 20:55 on the same day, SO Chin-ting (“PW2”) walked towards the Hotel from the EXPO. D2 approached PW2 and offered to sell him CREAMFIELDS wristbands.  PW2 made an enquiry for more than 20 wristbands.  D2 stated that each wristband cost Renminbi 1,000 yuan. D2 made a call, and D1 appeared soon to confirm the price of each wristband to be Renminbi 1,000 yuan.

8.PW2 was in the course of discussion with them when, at about 21:33, the police arrived at the scene and arrested them. Three pink wristbands were found in D1’s trousers, and 81 pink wristbands were found in D2’s trousers. A total of Renminbi 84,000 yuan could be obtained by selling such 84 pink wristbands at Renminbi 1,000 yuan each.

9.As a result of the loss of the green wristbands, PW1 suffered from inconvenience in having to find another colour of wristbands to replace the green wristbands for the participants. In relation to the 100 pink wristbands stolen, they were extra wristbands to be given to purchasers of VIP tickets for the first day sold at the door of CREAMFIELDS at HK$3,000 each.

10.D1, together with another person unknown, having entered as a trespasser Hall 11, stole therein 100 pink wristbands and 60 green wristbands.

11.Knowing or believing the 81 pink wristbands on him were stolen goods, D2 dishonestly undertook or assisted in their disposal or realization for the benefit of D1.

Mitigation

12.D1 is the elder brother of D2.  They have a clear record in Hong Kong.  D1 was unemployed when he committed the present offence.  D2 claims to be a hawker in China.  He does not have a fixed occupation.

13.Mr. Chan for D1 submits that D1 had a bit over $3,000 with him.  He wanted to see the concert although he could not afford it.  He claims to be an opportunistic burglary.  On the fact of it, I do not expressly find it logical.  However, I am open to the possibility that given more time, D1 may be able to make out his case.  I give full opportunity to D1 to consult his solicitor for instructions and the need to have a Newton hearing.  Mr. Chan comes back to tell me that D1 does not want any Newton hearing.  I therefore reject his claim of opportunistic burglary.   

14.Mr. Leung for D2 refers to the case of HKSAR v Xiao WeiCACC [2003] HKCA 60, CACC 225/2003.  The defendant there handled, by pawning, a Rolex watch valued at $11,200 stolen from a flat less than 6 hours ago.  The Court of Appeal cited in approval the observations relevant to sentencing a handler stated in R v Bernard Webbe & Ors(at paragraph 20) 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 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 pressurizing addicts to steal in order to pay for their habit.

9. The commission of an offence while on bail.

15.Leaving aside the defendant’s personal aggravating factor, a starting point of 18 months on the facts was taken by the Court of Appeal. 

16.Mr. Leung seeks to rely on this case to suggest that a handler’s sentence should be half of that of the burglar’s.  While I do not think that case establishes such a broad principle of sentencing, its own facts are somewhat similar to our present case, hence a good example of the actual sentence.

17.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal states that the proper starting point for non-domestic premises would be 2 years 6 months’ imprisonment for a first offender of full age.

Sentencing D1 and D2

18.Although the burglary would reap $660,000 if all the wristbands stolen were sold, the sale had to done within a few diminishing hours.  After that, the wristbands would be of no value.  Counterbalancing the potential profit with the limitation of time, I take a starting point of 2 years 6 months for 1^st Charge. There is a one-third discount for the plea of guilty.  The sentence is 20 months.

19.I take 15 months as the starting point for 2^nd Charge.  There is a one-third discount for the plea of guilty.  The sentence is 10 months.