HKSAR v. Lam Wai Kin

DCCC 984/2017

[2018] HKDC 1434

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 984 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to five counts of “using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200 (charges 1, 4, 6, 8, 10), five counts of “theft”, contrary to section 9 of the Theft Ordinance, Cap 210 (charges 2, 3, 5, 7, 9), one count of “driving in excess of speed limit”, contrary to section 41(1)(a) of the Road Traffic Ordinance, Cap 374 (charge 11), one count of “driving without a valid driving licence”, contrary to section 42(1) and (4) of the Road Traffic Ordinance (charge 12), and one count of “using a motor vehicle without third party insurance”, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (charge 13).

Incident one (charges 1-3)

2.Mr Pang Ho Kei owned Yum Ting Logistics (“Victim 1”).  On 10 October 2016, Mr Pang employed the defendant as the company driver and allowed him to drive a light goods vehicle.  In so doing, Mr Pang inspected a driving licence numbered P646668 4 bearing the defendant’s name “LAM WAI KIN” (“the forged driving licence”).  The defendant then started to work on 11 October 2016. 

3.On 17 October 2016, the defendant collected goods, namely 441 computer accessories valued at around HK$274,550 from Victim 1’s customer Everbest Technologies Limited (“Victim 2”) and did not deliver the goods as expected. He became out of reach.  Further, the defendant failed to return cash payment in the sum of HK$29,627 to Victim 1. 

Incident two (charges 4-5)

4.Mr Ko Wan Fung owned Po Ching Shipping Company (“Victim 3”).  On 24 October 2016, he met the defendant and employed him as a driver after inspecting the forged driving licence.  The defendant started working on 25 October 2016. 

5.On 29 October 2016, the defendant collected 46 boxes of yarns belonging to Victim 3 and 37 boxes of electronic products belonging to Comtech International (HK) Limited (“Victim 4”).  Thereafter, the defendant became out of reach.

6.The light goods vehicle driven by the defendant was recovered.  Upon checking, the 37 boxes of electronic products of Victim 4 valued at HK$2,183,474.28 and a forklift of Victim 3 valued at around HK$2,000 were found missing.  The 46 boxes of yarns were recovered.

Incident three (charges 6-7)

7.Wisdom Well Technology Limited (“Victim 5”) employed the defendant as driver of a light goods vehicle on 20 January 2017.  Before the employment, the defendant tendered the forged driving licence for inspection by a staff of Victim 5 in mid-January 2017.   

8.On 25 January 2017, the defendant collected 123 televisions and 100 speakers from warehouse of Victim 5.  The defendant then became out of reach.  The value of the stolen properties was around HK$403,535.

Incident four (charges 8-9)

9.Mr. Kwok Wai Hung owned Bestlink Transportation Ltd.  On 17 February 2017, he employed the defendant as driver.  In so doing, he inspected the forged driving licence provided by the defendant.

10.On 24 February 2017, the defendant collected 4,442 computer CPUs and 1,000 computer RAMS belonging to Zhuang Zhanhong (“Victim 6”).  The total value of the goods was around HK$4,931,148.30.  The defendant did not deliver the goods and was out of reach.    

Incident five (charges 10-13)

11.On 2 June 2017, the police conducted an anti-speeding operation in Shatin and detected the defendant driving a vehicle with registration mark UJ 7115 (“the Car”) at a speed of 66 km/h.  Police thus intercepted the Car.  The defendant then presented the forged driving licence for inspection.  Upon checking with police record, it was confirmed that the defendant had not applied for any driving licence.  Transport Department later confirmed the same.  The forged driving licence was examined by Forensic Scientist and confirmed to be forged due to its inferior printing and colour. 

12.Owner of the Car confirmed that he had lent the Car to the defendant to drive in May 2017 without knowing that he had no driving licence.  The defendant had presented the forged driving licence for inspection. 

13.China Ping An Insurance (Hong Kong) Company Limited confirmed that the 3^rd party insurance would not cover a person such as the defendant who did not have a driving licence. 

14.In his video-recorded interviews, the defendant stated as follows:-

(a) Re charges 1-3 and 6-9, he admitted producing the forged driving licence a few years ago by computer for job interview and application. He did not have a valid driving licence.

(b) Re charges 1-3, he admitted stealing the goods and selling them to an unknown male for HK$20,000. He also admitted stealing the money by not returning it to Victim 1. He had used the proceeds to repay debt.

(c) Re charges 6-7, he collected some electronic appliances and sold them to a hawker for around HK$100,000 for repaying debts.

(d) Re charges 8-9, he admitted collecting the goods and sold the goods to a buyer for a total of HK$1,050,000. He had used all the proceeds.

Mitigation

15.The defendant is aged 33.  He lived with his girlfriend and his 9-year-old son prior to the arrest.  He has 15 previous conviction records, 8 for theft, 2 for using false instrument, 1 for driving without a licence and 1 for using a motor vehicle without third party insurance.

16.In mitigation, mitigating letters from the defendant, his girlfriend and his son respectively were submitted.  Both his girlfriend and his son asked the court to impose lenient sentence on the defendant.  It was submitted that the mitigating letter from the defendant showed he had genuine remorse and was determined to turn over a new leaf after serving the sentence.  Counsel for the defence referred to several authorities[1] and suggested that a global starting point for the total amount of properties stolen would be in the range between 6 years and 7.5 years.  The court was urged to consider the defendant’s guilty plea, his full admission upon arrest and the totality principle when imposing sentence.  There was no submission on disqualification.

Sentence

17.The defendant has previous convictions for theft and offences similar to the present case.  Given that his last conviction was in 2011, I do not intend to enhance the sentence on the basis of his previous convictions.  

18.The present case is a serious case of theft involving breach of trust against several victims.  But for his employment as a driver for collection and delivery of goods, he would not be in a position to access the goods of his employers or the employers’ customers.  The loss suffered by each victim is as follows:-

Victim 1:       HK$29,627

Victim 2:       HK$274,550

Victim 3:       HK$2,000

Victim 4:       HK$2,183,474.28

Victim 5:       HK$403,535

Victim 6:       HK$4,931,148.30

The total value of all losses is HK$7,824,334.58

19.The Court of Appeal has laid down sentencing guideline for theft involving breach of trust (see HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 770 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017).  For theft of less than HK$250,000, the sentence is less than 2 years.  For theft of HK$250,000 to HK$1 million, the sentence ranges from 2 to 3 years.  For theft of HK$1 million to HK$3 million, the sentence ranges from 3 to 5 years.  For theft of HK$3 million to HK$15 million, the sentence ranges from 5 to 10 years.

20.In respect of the other offences, there is no sentencing guidelines. 

21.Incident one involves two victims.  For charge 1 relating to the use of the forged driving licence, I consider the appropriate starting point to be 12 months’ imprisonment.  For charge 2, in view of the amount of loss suffered by Victim 2, the appropriate starting point is 2 years’ imprisonment.  For charge 3, given the small amount of loss suffered by Victim 1, the appropriate starting point is 9 months’ imprisonment.

22.Incident two also involves 2 victims.  For charge 4 regarding the use of forged driving licence, I consider the appropriate starting point to be 12 months’ imprisonment.  Charge 5 relates to the loss suffered by Victims 3 and 4. Given the total amount of loss is slightly over HK$2 million, I consider the appropriate starting point to be 4 years’ imprisonment.

23.For incident three, again I consider the appropriate starting point is 12 months’ imprisonment for use of forged driving licence in charge 6.  For charge 7, the loss suffered by Victim 5 is around HK$400,000.  The appropriate starting point should be 2 years and 3 months.

24.For incident four, the appropriate starting point for use of forged driving licence in charge 8 should be 12 months’ imprisonment.  For charge 9, the loss suffered by Victim 6 is around HK$4.9 million.  The appropriate starting point should be 5 years 6 months.

25.For incident five, the appropriate starting point for use of forged driving licence in charge 10 should be 12 months’ imprisonment.  For charge 12, given it is the defendant’s second conviction, the appropriate starting point is 3 months’ imprisonment.  For charge 13, given it is the defendant’s second conviction, the appropriate starting point is 4.5 months’ imprisonment.  For charge 11, in view of the defendant’s guilty plea, the defendant is fined HK$450.

26.Given the defendant’s plea, the sentences of imprisonment are reduced by 1/3 as follows:-

Charge 1:       12 months, reduced to 8 months

Charge 2:       2 years, reduced to 16 months

Charge 3:       9 months, reduced to 6 months

Charge 4:       12 months, reduced to 8 months

Charge 5        4 years, reduced to 32 months

Charge 6:       12 months, reduced to 8 months

Charge 7:       2 years and 3 months, reduced to 18 months

Charge 8:       12 months, reduced to 8 months

Charge 9:       5 years and 6 months, reduced to 44 months

Charge 10:      12 months, reduced to 8 months

Charge 12:      3 months, reduced to 2 months

Charge 13:      4.5 months, reduced to 3 months

27.Apart from the defendant’s plea, there is no other mitigating factor justifying further reduction of the sentence.  Taking into consideration the totality principle, I consider a total sentence of 52 months will be sufficient to reflect the criminality of the defendant’s act.  I order the sentences to run as follows:-

Charges 1-3 to run concurrently, making a combined sentence of 16 months

Charges 4-5 to run concurrently, 12 months of the combined sentence to run consecutive to the sentences of charge 1-3

Charges 6-7 to run concurrently, 6 months of the combined sentence to run consecutive to the sentences of charge 1-5

Charges 8-9 to run concurrently, 16 months of the combined sentence to run consecutive to the sentences of charges 1-7

Charges 10, 12-13 to run concurrently, 2 months of the combined sentence to run consecutive to the sentences of charges 1-9

28.I hereby sentence the defendant to a total sentence of 52 months’ imprisonment and a fine of HK$450.

29.Disqualification is mandatory for charge 13.  I order a 3-year disqualification in respect of all classes of vehicles pursuant to section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.