HKSAR v. Chan Ho

DCCC 441/2013

[2021] HKDC 881

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 441 OF 2013

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REASONS FOR SENTENCE

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1.Mr Chan pleaded guilty before me to two charges on a Charge Sheet, namely, Charge 1 of Theft, contrary to section 9 of the Theft Ordinance, Cap 210; and Charge 2 of Fraud, contrary to section 16A of the Theft Ordinance, Cap 210.

2.The particulars of Charge 1 are that he, on 22 March 2012, at DD 125, Lot 670, Tseung Kong Wai, San Sik Road, Tin Shui Wai, New Territories, in Hong Kong, together with Singh Gursewak (“SG”), stole one light goods vehicle bearing registration mark NF5857, one camera, one vehicle video recorder, one electronic scale, cash of about $200 Hong Kong currency and some metal hardware, the property belonging to Wong Tak Kee.

3.The particulars of Charge 2 are that he, on the same day, in Hong Kong, together with SG, by deceit, namely by dishonestly and falsely representing to Kit Ki Ying that:-

(i)  SG was the registered owner of a light goods vehicle bearing registration mark NF5857 (the “Vehicle”); and

(ii)  SG agreed to sell the Vehicle to the said Kit Ki Ying for $175,000 Hong Kong currency,

and with intent to defraud, induced the said Kit Ki Ying to commit an act or a series of acts, namely to part with a sum of $175,000 Hong Kong currency which resulted in benefit to Mr Chan and SG and in prejudice to the said Kit Ki Ying.

Summary of the facts admitted by Mr Chan

4.Mr Chan was the only employee working for PW1, the property owner named in Charge 1, at a recycled goods yard in Tin Shui Wai.  Mr Chan was given a set of car keys for driving the light goods vehicle specified in the charge (“LGV”)  in connection with PW1’s business.  The LGV which belonged to PW1 was usually parked at the yard.

5.On 21 March 2012, PW1 received a phone call from an unknown male claiming that someone had handed over certain vehicle registration documents relating to the LGV to the Happy Valley Police Station and he asked PW1 to go over to get them back.  PW1 thereupon went to check the LGV and indeed found the registration documents missing.  PW1 arranged with the caller to meet at Yau Ma Tei Police Station the next day in order to get back the documents.

6.Next day on 22 March 2012, having checked that the LGV was still in the yard, PW1 went to Yau Ma Tei Police Station and called back the number of the unknown male with no avail.  PW1 made enquiry with the Happy Valley Police Station which denied having received any such vehicle registration documents.

7.When PW1 returned to the yard, he found the LGV missing.  A police report was made.

8.Meanwhile what happened was Mr Chan and SG had in fact taken the LGV on 22 March 2012 to the office of an intended purchaser namely PW2 ie the victim named in Charge 2 for his viewing.  Mr Chan drove and SG presented to PW2 the vehicle registration documents which depicted SG to be the owner.  Believing everything was in order, PW2 handed over a cheque in the sum of $175,000 to SG who cashed the cheque later on the same day.

9.Next day, PW2 found that the LGV was in fact a reported lost vehicle. He made a police report.

10.Mr Chan and SG were later arrested.

11.After retrieving the LGV, PW1 discovered that the other items listed in Charge 1 to the total value of $6,000 were missing from the LGV.

Criminal record

12.Mr Chan has 9 previous convictions 3 of which (all sentenced in 2006)  were Theft Ordinance convictions.

Antecedents

13.Mr Chan is 29 (19 at the time of the offences), educated to F2, had been a transportation worker.  He was living with his parents.

Mitigation

14.Mr Wong Cho Lik of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.

15.The following is a summary of the mitigation submissions.

16.Mr Chan’s parents are in their 60s and Mr Chan has 3 siblings.  Mr Chan worked as a logistics worker at the time of the offences.

17.Mr Chan has his own family and is the father of a 7-year-old girl.  His fiancée and daughter live in the Mainland.

18.Mr Wong submitted that Mr Chan pleaded guilty at the earliest opportunity thus showing genuine remorse and which also saves time and resources.

19.Mr Chan committed these offences because he was in gambling debts.  He is now more mature and begs for leniency and a chance to reform himself.

20.Mr Wong submits that there are no sentencing guidelines for the two offences.  On the theft of vehicle offence ie subject of Charge 1, Mr Wong referred to HKSAR v Li Cheung Yin & Ors, CACC 313/2011 (Chinese judgment)  and submitted that a sentence of 3-5 years’ imprisonment would have been appropriate for the theft or handling of motor vehicles.

21.Mr Wong submitted that a 3-year starting point would be appropriate for Charge 1 and that a same or similar starting point be adopted for Charge 2 and it was also submitted that the two offences were committed in close proximity of time and were essentially part and parcel of the same incident so as to warrant wholly concurrent sentences either on this basis or having regard to totality.

22.Mr Wong also referred to two other cases HKSAR v Lai Kam Ming, CACC 344/2014 (Chinese judgment), and HKSAR v Yu Chi Chiu [2017] 1 HKLRD 400.

23.Mr Wong reminded the court that the accomplice SG was sentenced by a different judge in February 2015 to 22 months’ imprisonment for each of the two charges on a plea, to be served concurrently.

24.Mr Chan and his elder sister each wrote a mitigation letter in Chinese (submitted).  The contents generally are that Mr Chan is regretful for having jumped bail in 2013 and evaded the trial resulting in convictions in his absence (since quashed); that he has now got rid of his gambling addictions and turned to Christian faith and asked for a lenient sentence so as to reunite with his fiancée and young daughter early and to turn a new leaf.

Sentence

25.There are two aggravating factors relating to Mr Chan namely, joint enterprise and breach of trust.  There is insufficient evidence to indicate which of the two participants was the mastermind.

26.There was clearly pre-planning and a degree of sophistication in the execution of the plan given the circumstances under which PW1 was steered away from the yard and the speedy sale of the LGV.

27.For Charge 1, I shall adopt a basic starting point of 3 years’ imprisonment.  For the two aggravating factors, given the staleness of the case, I shall exceptionally enhance the starting point by only 4 months.

28.For Charge 2, I shall adopt a starting point of 3 years 4 months which has taken into account the joint enterprise factor only.

29.The offence subject of Charge 2 is not a concomitant of the offence subject of Charge 1 and the victims of the two offences are wholly different.

30.Despite the fact the two offences were committed on the same day, I am of the view that consecutive sentences are called for subject only to totality.

31.Mr Chan pleaded guilty and therefore is entitled to some discount on sentence.

32.However, I note that these proceedings are a “retrial” on a fresh Charge Sheet after the earlier convictions on the two charges have been quashed (see HKSAR v Chan Ho, CACC 399/2013, judgment dated 18 January 2021).

33.In the premises, I will only give Mr Chan ¼ discount rather than the customary 1/3 discount reserved for early plea (see HKSAR v Chui Chi Wai & Anor (No 2) [2000] 1 HKLRD 704,707).  There are no other mitigating factors of sufficient weight to warrant any further discount.

(Mr Chan, please stand)

34.For Charge 1, Mr Chan is to serve a sentence of 30 months.

35.For Charge 2, Mr Chan is to serve a sentence of 30 months.

36.I order that 6 months of the sentence on Charge 2 is to run consecutively to the sentence on Charge 1, making an aggregate sentence of 36 months’ imprisonment.