COURT: D1 pleaded guilty to four charges of Theft contrary to section 9 of the Theft Ordinance. They were Charges 1, 2, 3 and 4 on the indictment.
D2 pleaded guilty to two charges of Handling stolen goods, contrary to section 24 of the same ordinance. They are Charges 5 and 6 on the indictment. They were the goods stolen in Charge 2.
Both defendants pleaded guilty before a magistrate on 18 November 2019 and were committed to the Court of First Instance for sentence.
D1 was hired as a delivery driver by four different logistics companies to deliver goods using their lorries and containers. On each occasion, he stole the goods he was meant to deliver. He then abandoned the lorry and container that was used. After each theft, the 1st defendant became out of reach. The logistics companies made a report to the police. The thefts took place, the 1st charge was in August 2017 and for the remaining three charges they were in October 2018.
Turning to the charges that the 1st defendant admitted. In Charge 1, the defendant admitted that on 14 August 2017, he stole 10,573 watches, 7,850 pieces of watch components and 1,683,242 pieces of electronic components, the property of Kintetsu World Express (HK) Limited.
In respect of Charge 2, he admitted on 13 October 2018, he stole 114 laptops, the property of Huaqin Telecom Technology Company Limited and 20,000 mobile phones, the property of Chenzhou Tianlongxin Technology Company Limited.
In Charge 3, he admitted that on 29 October 2018, he stole 9,655 liquid-crystal display panels, the property of Varitonix Limited and 8 pieces of cowhide leather, the property of Luen Tai International Group Limited.
The 4th charge, he admitted that on 29 October 2018, in Hong Kong, he stole 3,840 digital doorbells, the property of Foxcom Technology Group Limited.
The total amount of property stolen on these four occasions amounted to $15,426,528.98.
The 2nd defendant, admitted that he dishonestly knowingly assisted in the retention and disposal of goods stolen by the 1st defendant in Charge 2; that is the laptops and mobile phones.
In Charge 5 on the indictment, the 2nd defendant admitted that between 26 October 2018 and 13 November 2018, he handled the 20,000 mobile phones.
In Charge 6, the 2nd defendant admitted that on or about 13 November 2018, he handled the stolen laptops.
I turn to the arrest of the 2nd defendant and the recovery of the mobile phones. The 2nd defendant was arrested on 13 November 2018. On the same day, recovery was made of all the mobile phones and 113 out of 114 laptops.
I turn to the circumstances of how D2 was arrested. In November 2018, the owner of the mobile phones, that is Chenzhou, discovered that the missing mobile phones were on sale in the open market. He contacted the sales agent and was told that the phones were being sold and inspection could be made in Hong Kong. He therefore arranged his staff member, Miss Li, to come to Hong Kong from China to meet the sales agent who was selling the mobile phones in Hong Kong.
On 13 November 2018, Miss Li went to Jaguar Warehouse in Yuen Long to inspect the mobile phones. Miss Li met the sales agent and three people, including D2, who then opened the boxes containing the mobile phones which were being sold, for Miss Li to inspect. Miss Li identified the mobile phones as the stolen property belonging to Chenzhou.
Miss Li left Jaguar Warehouse and immediately informed the police, who were laying ambush outside Jaguar Warehouse. The police entered Jaguar Warehouse and recovered the mobile phones stolen by the 1st defendant. However, the 2nd defendant was not present there.
On the same date, however, D2 was located in San Tin, near the Jaguar Warehouse. He was arrested for the offence of handling the stolen mobile phones found in Jaguar Warehouse. Under caution, D2 remained silent. A personal search was conducted upon him and two mobile phones and some keys were found.
The following day, Miss Li positively identified the 2nd defendant in an identification parade as one of the people who opened the boxes containing the mobile phones at Jaguar Warehouse when she went to inspect them on 13 November 2018.
D2’s movement record showed he had entered Hong Kong at around 9.53 am on 13 November 2018 via the Lok Ma Chau Spur Line Control Point.
Police Investigation
Police investigation revealed that on 25 October 2018, the 2nd defendant contacted Nicole Star Logistics Company for finding a warehouse to store some goods. Nicole Star Logistics Company found him Jaguar Warehouse.
On 26 October 2018, a Mr Wong Yam-yuk transported the 20,000 mobile phones, stolen by the 1st defendant, from Room 703, Po Lung Centre in Kowloon Bay to Jaguar Warehouse in Yuen Long as instructed by D2. The mobile phones in question were then stored at the Jaguar Warehouse in Yuen Long under the name of Nicole Star Logistics Company Limited as instructed by D2 since 26 October 2018.
Recovery of the laptops
After D2’s arrest on 13 November 2018, the police officers escorted him to Room 703, Po Lung Centre. The police officers entered Room 703 using the keys seized from D2 and the pass code provided by him. A search was conducted and 113 of the 114 stolen laptops belonging to Huaqin, the subject matter of Charge 2, were recovered. Room 703 was not rented in the name of the 2nd defendant and it was unknown since when those laptops were stored there.
D2 was again arrested for handling stolen goods and cautioned, after which D2 said “I know nothing about the batch of laptops. All I know is that the mobile phones found in San Tin earlier were obtained by a mainland friend of mine by theft. I only worked as an intermediary helping him dispose of the stolen goods to earn money.”
In a video-recorded interview, the 2nd defendant was asked about the laptops and mobile phones. Under caution, D2 said inter alia he was living in China. He entered Hong Kong with a permit as a visitor in the morning of 13 November 2018. He did not steal the mobile phones at Jaguar Warehouse. The goods were stolen by his friend from China. The friend asked D2 to help him dispose the goods by selling them. D2 did this in order to earn some money for his family.
It is unclear from the Summary of Facts how the police came to know of Room 703, Po Lung Centre on 13 November 2018; that is where the stolen laptops were found. After my inquiry, Miss Lilly Wong, Senior Public Prosecutor for the prosecution informed me and Mr Kwan Tong-lee, counsel for the 2nd defendant, accepted the following facts.
After the 2nd defendant’s arrest on 13 November, the police made inquiries with the staff at Jaguar Warehouse. Police then came to know that a driver, Mr Wong, mentioned earlier, had driven the stolen phones to Jaguar Warehouse. After contacting Mr Wong, police came to know that he had transported the goods from Po Lung Centre and therefore took the 2nd defendant there.
Recovery of the digital doorbells
On 26 October 2019, about three months after the digital doorbells were stolen by D1, the logistics company owner, Mr Wong Tat-ming, received a phone call informing him he should pay $100,000 if he wants to get the stolen goods back. Mr Wong said he would pay after seeing all the goods. The caller said the goods were placed somewhere in the vicinity of Lau Fau Shan Roundabout.
On the same day, Mr Wong went there and found some boxes of goods. He informed the police. Police officers arrived and seized the goods, which contained all the stolen digital doorbells, save for 16 of which were still missing.
Arrest of D1
Police investigation revealed the 1st defendant had illegally entered China. The Hong Kong Police made a request to the mainland authority for locating D1. In late 2018, the 1st defendant was located in China and the Hong Kong Police was informed.
On 18 February 2019, the 1st defendant was handed over to Hong Kong police officers at the Lok Ma Chau Control Point. The 1st defendant was arrested for the theft of the digital doorbells. That is for Charge 4.
Under caution, D1 said “Ah Sir, it was me who did it. Someone paid me 30,000, telling me to drive this batch of goods to Kam Pok Road in Lok Ma Chau and leave after putting it down.”
On 20 February 2019, the staff of the respective logistics companies which hired the 1st defendant in Charges 1, 2, 3 and 4, all positively identified the 1st defendant and confirmed that he was the driver who was involved in these thefts.
Admission by D1
In a video-recorded interview, D1 admitted he committed the thefts in Charges 1 to 4. On each occasion, he applied to work as a driver in the relevant company. He collected the goods, but did not deliver them as instructed. He sold and passed the goods to a person called ‘Nam Gor’. For the goods stolen in Charge 1, he received $50,000; in Charge 2, he received $30,000; in Charge 3, he received $20,000; in Charge 4, he received $30,000. He received those moneys from Nam Gor for the goods in question.
The 1st defendant then illegally went into China.
Mitigation
Both counsel for the 1st and 2nd defendants adopted their written submissions in mitigation, but also expanded upon them in their oral mitigation.
I turn first to deal with D1. He is 52 years old. He has four previous convictions in one court appearance in 2018. They were convictions for two offences of possession of a forged, ID card and two offences of possession of false instruments. He was sentenced to a total of 8 months’ imprisonment on all charges in 2018.
D1 was educated up to Form 2. After school, he worked as a kitchen apprentice and subsequently became a truck driver. At the time of his arrest, he was working as a truck driver. D1 is married. His wife and eight-year-old daughter and two-year-old son are all living in China.
Miss Ophelia Yap, counsel for D1, accepts that this is a breach of trust case. She says the present offences arose out of desperation. D1’s wife had recently been the victim of a car accident and the family had incurred medical debts of some RMB400,000, arising from the wife’s four-month long hospital stay and several rounds of surgery. D1’s letter to court has also reiterated the same.
Recovery of the goods
In Ms Yap’s written submission, she contended that the impact of the thefts were mitigated by the substantial recovery of all the mobile phones and all but one of the laptops in Charge 2, and all but 16 of the doorbells in Charge 4. She submitted that the substantial recovery in respect of Charges 2 and 4 is relevant mitigation as is apparent from R v Barrick [1985] 81 CAR 78.
She relied upon the case of HKSAR v Chong Hung Shek [2019] 2 HKLRD 937 at paragraph 52. In Chong Hung Shek, the defendant was a conveyancing clerk at a solicitors firm, who systematically misappropriated, by fraud, a total sum of $35 million-odd from the solicitors’ clients’ money. However, the actual loss to the victims was $10 million-odd. The Court of Appeal took into account the fact that actual losses suffered by the firm’s clients was significantly less than the amount the defendant had stolen and reduced the starting point of the offences to take that into account.
During Ms Yap’s mitigation, I informed her that Chong Hung Shek’s case is clearly distinguishable from the present case. In the present case, D1 did not assist or contribute in the recovery of any of the stolen goods. I brought to her attention the case of HKSAR v Guan Liqing and Others reported in [2005] HKCU 1495 or CACC 148/2005, particularly with reference to paragraph 9. Having perused that case, Ms Yap abandoned her submission that the defendant should benefit from any mitigation or discount as a result of the recovery of the goods. Ms Yap accepted the recovery of the goods was not as a result of any assistance by D1.
Ms Yap further submitted that the court may exercise its discretion in deducting two months from the term of imprisonment this court is to impose as the defendant has spent two months and four days detained in the mainland before he was transferred to Hong Kong. She asked the court to deduct that period of time to which he spent in custody outside of Hong Kong from his sentence.
Sentence for D1
I turn first to deal with the sentence of the 1st defendant. The question to be determined is whether in all the circumstances justice demands that the defendant’s period of 2 months 4 days’ detention in the mainland should now be taken into account and due credit given for it.
Ms Yap submitted in relation to this type of detention, the honourable Hartmann J in Lee Kwan Yee and Another [2004] 1 HKC 462 said at paragraphs 5 to 7:
“5. It is now well settled that, in assessing sentence, a judge may properly take into account any period of time that a defendant has spent in custody outside of Hong Kong. It is therefore a matter of discretion whether it should be taken into account or not, that discretion to be exercised in light of the relevant circumstances.
6. By way of guidance as to the exercise of that discretion, in R v Law Yiu Wo [1994] 2 HKCLR 204, this court held that time spent in custody in a foreign jurisdiction was not generally a matter to be taken into account unless, in the discretion of the judge, it was felt that justice demanded that account should be taken of it. There is not therefore a presumption that ordinarily credit must be given.
7. In a later judgment, that of HKSAR v Lam Pak Lok [1997] 3 HKC 650, this court held, however, that flight from Hong Kong to avoid arrest did not automatically prevent a defendant from claiming credit for time spent in custody abroad. It was simply one of the factors to be taken into account in the exercise of the court’s discretion.”
I am of the view that no credit should be given in this case for the 1st defendant’s time spent in detention in the mainland. In this case, the 1st defendant fled Hong Kong to the mainland illegally. It was as a result of police suspicions that he was in the mainland and it was they who requested the mainland to locate D1.
D1’s fleeing illegally to mainland was clearly to avoid detection and arrest knowing of the serious crimes he had committed in Hong Kong. He was the author of his own misfortune. The time spent in the mainland was also not unduly long and I therefore do not afford any credit for the time -- detention spent in mainland.
Recovery of goods
I turn to the recovery of the goods stolen by the 1st defendant. The recovery of the mobile phones was purely fortuitous. It was through the detection and diligence of the owners of the mobile phones, who saw the phones for sale in the market and arranged to buy them, which resulted in the netting of the 2nd defendant.
It was a result of the police investigation and after the arrest of D2, the police discovered the stolen laptops at Po Lung Centre.
The doorbells, as accepted by Ms Yap, were also not recovered as a result of any assistance by the 1st defendant.
The recovery of the stolen goods was therefore as a result of the efficiency of the owners of the mobile phones and the police. Neither the 1st or 2nd defendant played any part in it.
I refer to the judgment in Guan Liqing where Stuart-Moore VP said at paragraph 9:
“The recovery of the proceeds of crime is not, as we have so often said before, the same as voluntary restitution or the payment of compensation in circumstances where the victim would otherwise have received no recompense. These sums were recovered solely as the result of the efficiency of the police operation and, although the frauds may not have concerned the very large amounts which are often involved in many of the commercial crimes which come before this court, this was a gang that targeted those who could least afford to lose their savings by preying on their kindness and naivety.”
So in this case, it is not the same as the voluntary restitution or payment of compensation. The goods were recovered as a result of the efficiency of the owners and the police. I therefore do not consider there should be any discount because of the recovery of the goods and these are not mitigating factors which can be afforded to either the 1st and/or 2nd defendant.
There are no personal circumstances of the 1st defendant that warrant any reduction from his sentence. His strongest mitigating factor is his early plea of guilty. Although the theft was unsophisticated in character, as it was simple and straightforward, it was pre-meditated and planned. It was committed with at least one other, that is, Nam Gor. As D1 said under caution, after he stole the goods, he sold and passed the goods to Nam Gor and Nam Gor paid him for the goods. For the four thefts, he received a total reward of $130,000.
I consider the commission of the thefts with another to be an aggravating factor. Although D1 says, and the prosecution confirms, that D1 did not know what goods he was stealing or the value of it, Nam Gor, who purchased the goods from D1 or another, would have had some idea. The stealing of these goods would not have been without someone’s knowledge of what they were and the value of them. The amount of reward D1 received would have been an indication, at least to D1, that the goods amounted to some significant value.
As this is a theft involving a breach of trust, the guidelines are set out in HKSAR v Cheung Mee Kiu and revised in Ng Kwok Wing. The starting points are set out as follows as revised:
Thefts involving 15 million or more, 10 years or above; thefts involving 3 million to 15 million, 5 to 10 years; involving 1 million to 3 million, 3 to 5 years; involving 250,000 to 1 million, 2 to 3 years; involving 250,000 or less, below 2 years.
The total amount of goods stolen in all four charges amounted to approximately $15,400,000-odd. Following Cheung Mee Kiu, this would attract a starting point of 10 years’ imprisonment after trial. I consider there to be an aggravating factor in this case as the theft was committed with planning and pre-meditation with another or others. I consider an enhancement of 6 months’ imprisonment to the starting point to be appropriate.
The sentencing point, had the 1st defendant been convicted after trial, would therefore be 10 years and 6 months’ imprisonment.
1st Defendant, you have pleaded guilty at the first opportunity and that is your strongest and only mitigating factor. You are entitled to the full one-third discount from the starting point. Giving you the full one-third discount, Defendant, you shall be sentenced to serve 7 years’ imprisonment.
I however must sentence you on the individual sentences in respect of each charge.
In Charge 1, the theft of goods was valued at $12,164,121.93. For that charge, I will take a starting point of 8 years had you been convicted after trial. Giving you the full one-third discount, for that charge you should be sentenced to 5 years and 4 months’ imprisonment.
For Charge 2, the total value of stolen goods amounted to $1,534,125.68. Had you been convicted after trial, I would have taken a starting point of 3 years and 3 months’ imprisonment. Giving you full credit for your plea of guilty, that term should reduce to one of 2 years and 2 months’ imprisonment.
For Charge 3, the theft of goods was valued at $300,535.46. For that charge, I would have taken a starting point of 2 years’ imprisonment had you been convicted after trial. Giving you full credit for your plea of guilty, that term should reduce to 1 year and 4 months’ imprisonment.
For Charge 4, the total value of stolen goods amounted to $1,427,755.91. Had you been convicted after trial, I would have taken a starting point of 3 years and 3 months’ imprisonment. Giving you full credit for your plea of guilty, that term should reduce to 2 years and 2 months’ imprisonment.
To reflect the total sentence of 7 years’ imprisonment, I order 1 year 8 months of Charge 4 to run consecutive to the sentence in Charge 1 and the remainder of the terms to run concurrent to each other, which makes a total term of 7 years’ imprisonment.
Sentence for D2
I turn now to D2. D2 is aged 35. He has a clear criminal record. He was educated up to secondary school in China. He was working as a merchant at the time of his arrest. He is married and living with his wife and son, aged 7, in China.
D2 pleaded guilty at the first opportunity to handling the stolen goods in Charges 5 and 6. Those goods are the mobile phones and laptops valued at $1,534,125.68. Despite D2 saying in his video recorded interview under caution at paragraph 24 of the summary of facts that the goods were stolen by his friend from China, Mr Kwan, counsel for D2, says that the friend D2 was referring to is not the 1st defendant. Mr Kwan says D2 does not know D1. Furthermore, there is no evidence linking him to D1 in any way. Ms Wong for the prosecution confirms that in D2’s video-recorded interview he was asked if he knew a Mr Law Pit-tat, who is D1. D2 answered he did not. I therefore accept there is no evidence linking D2 to D1, nor that D2 knows D1.
Mr Kwan submitted there are no aggravating factors as that set out in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360 in determining the relevant starting point for the offence of handling stolen goods. At paragraph 55, the court held there were nine factors which may be regarded as aggravating the offence of handling. I do not accept there are no aggravating factors in this case. I accept there is no evidence that D2 was a professional handler and I accept there is no evidence that he instigated or encouraged the thefts of D1 or that he knew D1. However, the aggravating factors are that these were thefts of mobile phones and laptops, which is a serious offence given their relatively high value.
Further, shortly or very soon after the 1st defendant had stolen the mobile phones and laptops, approximately two weeks later it was D2, that is on 25 October, who contacted Nicole Star Logistics Company Limited and provided an outlet to store the stolen mobile phones at Jaguar Warehouse. Furthermore, he had the keys and knew the passcode to enter the premises in Po Lung Centre where the laptops and the mobile phones were originally stored.
Taking into account those above factors, I consider an appropriate global starting point for Charges 5 and 6 to be one of 4 years’ imprisonment. There is a further aggravating factor, that is the foreign involvement. That is, D2 is from the mainland and he was a visitor to Hong Kong. D2 had entered Hong Kong knowing he was going to commit a crime. He arrived in Hong Kong in the morning of 13 November and on that same day he was at Jaguar Warehouse assisting to sell the stolen mobile phones.
It is well settled law that it is a serious aggravating factor to come to Hong Kong to commit a specific offence. See HKSAR v Narena Gutierrez Cristhian Andres CACC 319/2014 (unreported), paragraph 20 and HKSAR v Li Yonghong CACC 254/2015 (unreported) at paragraph 23. These two cases were also cited in HKSAR v Montoya Munoz Mauricio CACC 192/2018.
The question in this case is what is the appropriate quantum for the enhancement of the foreign involvement. There are no guidelines as stated in Montoya. It is clear the sole purpose of D2 coming to Hong Kong on 13 November was to sell these stolen mobile phones, which he knew to be stolen and he was to be rewarded. He further arranged for the storage of the stolen mobile phones sometime in October shortly after the theft. I consider an enhancement of 3 months to the starting point to be appropriate.
D2’s timely plea of guilty at the outset warrants a one-third discount.
D2, the starting point of 4 years’ imprisonment is enhanced by 3 months, making a sentencing point of 4 years and 3 months’ imprisonment had you been convicted after trial. Giving you the full one-third discount, you shall be sentenced to serve 2 years and 10 months’ imprisonment.
I now turn to sentence you on the individual charges.
On Charge 5, had you been convicted after trial, I would have taken a starting point of 2 years 6 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 1 year 8 months.
On Charge 6, had you been convicted after trial, I would have taken a starting point of 2 years’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 1 year 4 months’ imprisonment.
To reflect the term of 2 years 10 months’ imprisonment, I order 1 year and 2 months of Charge 6 to run consecutive to Charge 5; the remaining terms to run concurrent. That means a total of 2 years 10 months’ imprisonment to which you shall so serve.