HKSAR v. Li Ka Ho and Another

DCCC 340/2019

[2020] HKDC 119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 340 OF 2019

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Reasons for Sentence

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1.Both defendants have pleaded guilty this morning, the 1st defendant to the first three charges on this indictment and the 2nd defendant to the remaining two charges.

2.The 1st defendant’s charges are handling stolen goods, possession of an offensive weapon and resisting a police officer.  The 2nd defendant is resisting a police officer and going equipped for stealing. All these offences were committed in the evening of 5 January 2019 at the Wilson Car Park in Hung Hom, in Bailey Street.

3.The police mounted an operation inside a car park and they kept a number of vehicles under observation which were situated on the left and right side of the car park.  A police officer was inside one of the vehicles which is described as NS 3270.  The 1st defendant approached the vehicle, opened the door of the driver’s seat.  The 2nd defendant was also carrying a bag and standing at the door of the passenger seat.  As soon as that happened, the police officer revealed his identity and the defendants made off straight away.  The 1st defendant dropped the bag he was carrying and that was seized by a police officer.

4.The 2nd defendant was apprehended by another police officer inside the car park.  The bag that he was carrying fell and then there was a struggle between himself and the police officer.  The bag was eventually seized.

5.The 1st defendant also, as I have said, ran away towards the car park entrance.  He was seized towards the exit of the car park and again there was a further struggle with the 1st defendant.  He was carrying a black handbag.

6.A search was conducted on the 1st defendant and the key of the vehicle NS3270 was found on him as were the car keys of two other vehicles which were found inside the handbag.  Various items were found upon the defendants.  Relevant to the charge is inside the second bag, and that is the bag carried by the 2nd defendant, were what are described as two glass breaking pens, three masks, a glove and a box of plastic gloves, and the charge of going equipped for stealing against the 2nd defendant is based on that.

7.Inside the vehicles NS3270 and another vehicle, VJ7822, various items were found, a shield with a sawtooth and a hammer, and those items were found in Charge 2.  Some other items were found in another vehicle, VT3732, which also form part of Charge 2, and they were bags containing beef knives with sheaths, a total of seven of those, also a bottle of gasoline.

8.It is found that the vehicle that the 1st defendant is alleged to have handled was purchased by a Mr Shum in January 2017.  I am told it was purchased for some $80,000 back in 2017.  It was reported lost on 12 March 2018, so that was over a year, almost a year and three months earlier.  Those are the basic facts that constitute the charges here.

9.As far as the defendants are concerned, the 1st defendant is aged 31, had received secondary education.  He was working as a cook at the time of his arrest.  He has some previous convictions for which he has been placed on probation.  No similar convictions.  I am told he is single, lives with his mother.

10.The 2nd defendant is aged 35 and he received education up to secondary level.  Unemployed at the time of his arrest.  He also lives with his mother in a public housing estate.  He has a number of convictions for non-similar offences.  He has been sentenced to both probation, community service and sentences of imprisonment, both immediate and suspended, but those matters are, as I have said earlier, they are not of the same nature of these crimes.

11.I turn to the approach to sentence.  As far as the offences -- in fact, all the offences, there is no actual tariff sentence for any of them.  There are various approaches the courts have taken, which Mr Fung has very helpfully showed me some cases in relation to that and they provide some assistance in determining where a starting point should lie in respect of most of these offences.  When determining the starting point, I bear in mind the matters said in mitigation and also appropriate for each defendant is the mitigating factor of that plea of guilty which will entitle them to a full one-third discount on each of the charges they face.  I find no particular aggravating factors that should increase the starting points in relation to the offences.

12.Turning to the 1st charge faced by the 1st defendant, it involves the handling of the vehicle.  It is a light goods vehicle, some 10 years old, purchased for some $80,000 back in 2017, had been stolen and then not found for over a year.  So clearly whatever reason the vehicle was stolen for, it was not for resale.  What could be said about the defendant; he was in possession of it some 13-odd months later.

13.In respect of offences of this nature involving vehicles, starting points for sentence in my experience could range somewhere between 18 months to 4 years.  I have already elucidated the factors that to me seem to be relevant to the actual starting point I should take.  I will take a starting point in this case of 24 months’ imprisonment and reduce that to 16 months’ imprisonment on the 1st charge.

14.The 2nd charge that the 1st defendant faces is possession of the offensive weapons found in vehicles to which the defendant had access for.  The nature of the weapons is a shield and hammer and beef knives.  As far as this offence is concerned, there is a wide range of sentences that have been adopted and starting points.  The offence carries a mandatory sentence of imprisonment.

15.Having regard to the nature of the items found, I am going to take a starting point of 15 months’ imprisonment and reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

16.The 3rd offence is resisting a police officer, which is also shared in the 4th charge by the 2nd defendant who also resisted a police officer arresting him in the 5th charge.

MR FUNG: No, the 4th. The 4th, that’s right.

COURT: Is it the 4th or the 5th?

MR FUNG: The 4th.

17.It is the 4th charge.  The 5th charge is the going equipped, sorry.  And I shall adopt the same starting point for sentence on each of these charges against each defendant, that is a short sentence of imprisonment; I think it is appropriate in this court.  I will take a starting point of 21 days, reduce that to 14 days’ imprisonment.  So the sentence against the 1st defendant on the 3rd charge will be 14 days’ imprisonment and the 2nd defendant on the 4th charge will be 14 days’ imprisonment.

18.The final offence I have to deal with is that relating to the 2nd defendant, going equipped for stealing.  Again, no sentencing guideline is known or appropriate for this offence.  Not a case that would come as a standalone case to the District Court.  Having regard to the nature of the items possessed or with which the defendant was equipped with in the circumstances in which he was arrested, I am going to take a starting point of 15 months’ imprisonment, reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

19.And I need to determine the overall totality in respect of these offences.  I bear in mind all the offences were committed on the same date and in the same location.  So bearing that in mind, I will not run the sentences consecutively but some element must reflect that there is a multiplicity of offences here.

20.What I am going to do as far as the 1st defendant is concerned, I will order that the 2nd and 3rd offences be run concurrently to each other, but 3 months of those, 3 months be run consecutively to the 1st charge.  That leaves a total of 19 months’ imprisonment for the 1st defendant.

21.For the 2nd defendant, I will order his sentences to run concurrently.  I think the 10 month overall is a sufficient total for him.  So his sentence will be 10 months’ imprisonment.