HKSAR v. Ng Kong Fai

DCCC 743/2023

[2024] HKDC 1268

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 743 OF 2023

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REASONS FOR SENTENCE

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1.D1 appeared before me today late, not by minutes or hours, but by months. He should have appeared with his co-accused D2 to D4[1] in a plea and sentence hearing listed for 31 May 2024. However, he failed to turn up purportedly because of abdominal pain. On the sentencing date of his co-accused, 17 July 2024, again D1 failed to appear. This time, the purported reason was left hand fracture because of an industrial accident. On both occasions, medical certificates were produced. Information was limited. It was unknown how the abdominal pain and the industrial accident happened on the very morning of the two court hearing days.

2.In any event, it was revealed that D1 had defaulted 5 times in his reports to the police station as per one of the bail conditions.  On 17 July 2024, prosecution applied for bail to be revoked and arrest warrant to be issued against D1; so granted by the court.

3.On 19 July 2024, D1 was re-arrested upon execution of the warrant.  He was brought before me on 22 July 2024.  His case was adjourned to today for plea and sentence; and a medical report on him was ordered prior to plea.

4.D1 faces a Charge Sheet (together with his co-accused)  consisting of 8 charges as follows[2].

5.Charge 1 against D1 & D2 only is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D2, on 15 December 2022, in Hong Kong, together with other persons known as “Sai Lo” and “Tai Tung”, stole a chose in action, namely a debt in the sum of $20,000 Hong Kong currency owed by The Hongkong and Shanghai Banking Corporation Limited in account numbered 004-484-228812-001 to Kam Lung Seafood Restaurant Limited (“Kam Lung”), property belonging to Kam Lung.

6.Charge 2 against D1 & D2 only is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D2, on the same day, in Hong Kong, together with a person known as “Sai Lo”, dishonestly received certain stolen goods, namely one cheque, property belonging to Kam Lung, knowing or believing the same to be stolen goods.

7.Charge 3 against D1 & D3 only is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D3, on the same day, in Hong Kong, together with other persons known as “Sai Lo” and “Tai Tung”, stole a chose in action, namely a debt in the sum of $50,000 Hong Kong currency owed by The Hong Kong and Shanghai Banking Corporation Limited in the same account to Kam Lung, property belonging to Kam Lung.

8.Charge 4 against D1 & D3 only is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D3, on the same day, in Hong Kong, together with a person known as “Sai Lo”, dishonestly received certain stolen goods, namely one cheque, property belonging to Kam Lung, knowing or believing the same to be stolen goods.

9.Charge 5 against D1 & D4 only is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D4, on the same day, in Hong Kong, together with other persons known as “Sai Lo” and “Tai Tung”, stole a chose in action, namely a debt in the sum of $50,000 Hong Kong currency owed by The Hong Kong and Shanghai Banking Corporation Limited in the same account to Kam Lung, property belonging to Kam Lung.

10.Charge 6 against D1 & D4 only is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D4, on the same day, in Hong Kong, together with a person known as “Sai Lo”, dishonestly received certain stolen goods, namely one cheque, property belonging to Kam Lung, knowing or believing the same to be stolen goods.

11.Charge 7 against D1 & D5 only is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D5, on the same day, in Hong Kong, together with a person known as “Tai Tung”, stole a chose in action, namely a debt in the sum of $20,000 Hong Kong currency owed by The Hong Kong and Shanghai Banking Corporation Limited in the same account to Kam Lung, property belonging to Kam Lung.

12.Charge 8 against D1 & D5 only is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that D1 and D5, on the same day, in Hong Kong, dishonestly received certain stolen goods, namely one cheque, property belonging to Kam Lung, knowing or believing the same to be stolen goods.

13.Today, D1 pleaded guilty before me to Charges 1 to 4, 7 to 8, but not guilty to Charges 5 and 6.  I order that insofar as D1 is concerned, Charges 5 and 6 be left on court file not to be proceeded with without leave of the court or the Court of Appeal pursuant to prosecution’s application.

Facts admitted by D1

14.As some of the facts contained in the “Re-amended Summary of Facts” did not relate to D1 but only to his co-accused, I directed that paras 11-16 and 17(e)  thereof be not read out for D1’s admission.

15.On 15 December 2022 at about 3:30 pm, it was discovered that there were signs of ransacking in Kam Lung Seafood Restaurant; that cash of HK$25,000 was missing from the safe and several bottles of wine were missing from the cabinet.  Four pre-signed blank cheques numbered 051224 (“Cheque 1”), 051225 (“Cheque 2”), 051226 (“Cheque 3”)  and 051227 (“Cheque 4”)  were stolen from the cheque book of Kam Lung Seafood Restaurant Limited issued by HSBC for the account numbered 004-484-228812-001 (the “HSBC Account”)  placed inside a drawer.

16.Cheques 1-4 were all cashed on 15 December 2022:

(a)  At 9:01 am, D2 cashed Cheque 3 in the sum of HK$20,000 in the HSBC branch at no 378 of Nathan Road (Charge 2);

(b)  At 9:02 am, D5 cashed Cheque 4 in the sum of HK$20,000 in the HSBC branch at no 378 of Nathan Road (Charges 7 & 8);

(c)  At 9:33 am, D3 cashed Cheque 1 in the sum of HK$50,000 in the HSBC branch at no 673 of Nathan Road (Charge 4); and

(d)  At 9:51 am, D4 cashed Cheque 2 in the sum of HK$50,000 in the HSBC branch at no 71 of Waterloo Road (Charge 6).

17.CCTV of Eaton Hotel at no 380 of Nathan Road captured that on 15 December 2022:

(a)  At around 5:35 am, D1 and D5 appeared at Eaton Hotel together;

(b)  At around 8:35 am, D1-2 and D5 entered a hotel room on 11/F;

(c)  At around 8:46 am, a person known as “Sai Lo” entered the same hotel room on 11/F;

(d)  At around 8:53 am, D1-2, D5 and “Sai Lo” left the hotel room; and

(e)  At around 8:55 am, D1-2, D5 and “Sai Lo” left Eaton Hotel.

18.CCTV of the HSBC branch at no 378 of Nathan Road captured that on 15 December 2022:

(a)  At around 9:01 am, D2 cashed a cheque (ie Cheque 3)  at a bank counter (Charge 2); and

(b)  At around 9:02 am, D5 cashed a cheque (ie Cheque 4)  at another bank counter (Charges 7 & 8).

19.CCTV of Eaton Hotel captured that at around 9:06 am, D1-2 and D5 walked past the hotel together (Charges 2 & 8).

20.CCTV of the HSBC branch at no 673 of Nathan Road captured that on 15 December 2022:

(a)  At around 9:15 am, D3 and “Sai Lo” appeared at the bank;

(b)  At around 9:30 am, D1 showed up at the bank;

(c)  At around 9:33 am, D3 cashed a cheque (ie Cheque 1)  at the bank counter (Charge 4); and

(d)  At around 9:35 am, D1, D3 and “Sai Lo” left the bank (Charge 3).

21.CCTV of the HSBC branch at no 71 of Waterloo Road captured that on 15 December 2022, at around 9:51 am, D4 cashed a cheque (ie Cheque 2)  at the bank counter and “Sai Lo” waited for him inside the bank (Charge 6).

Arrest and caution of D1

22.D1 was arrested on 30 December 2022.  Under caution, he claimed that it was “Tai Tung” who instructed him to find people to cash the cheques.

23.A video-recorded interview (“VRI”)  was conducted with D1 on 31 December 2022.  Under caution, he stated that:

(a)  On 15 December 2022 at around 4 or 5 am, “Tai Tung” called him and asked to meet him in Mong Kok;

(b)  “Tai Tung” gave him 4 cheques and asked him to cash them. “Tai Tung” claimed that he had lost his HKID card. “Tai Tung” said he would give a 20% share of the amount of money written on the cheques to D1;

(c)  He did not know, nor did he suspect, the origin of the cheques;

(d)  After receiving the cheques, he found “Jen Jen” and “Sai Lo” to help cash the cheques;

(e)  “Sze To” was brought to the hotel room by “Jen Jen” to handle the cheque(s);

(f)  Upon cashing Cheque 3, “Sze To” gave him HK$16,000. He took HK$4,000 and gave the remaining to “Tai Tung”; (Charges 1 & 2)

(g)  Upon cashing Cheque 4, “Jen Jen” gave him HK$16,000. He took HK$4,000 and gave the remaining to “Tai Tung”; (Charges 7 & 8)

(h)  Regarding Cheque 1, “Sai Lo” gave him HK$40,000. He took HK$10,000 and gave the remaining to “Tai Tung”; (Charges 3 & 4)

(i)  He did not know Chi Kin On (ie D4)  and he was not sure if Chi Kin On (D4)  cashed Cheque 2. He asked “Sai Lo” about Cheque 2, but “Sai Lo” claimed that Chi Kin On (D4)  became unreachable. In the end, to pacify “Tai Tung”, he gave his share (a total of HK$18,000)  to “Tai Tung”; and

(j)  He rented room 1110 of Eaton Hotel since August 2022.

24.D1 now admits he committed the offence subject of Charge 1 with “Sai Lo” and “Tai Tung”.

25.D1 now admits he committed the offence subject of Charge 2 with D2 and “Sai Lo”.

26.D1 now admits he committed the offence subject of Charge 3 with “Sai Lo” and “Tai Tung”.

27.D1 now admits he committed the offence subject of Charge 4 with D3 and “Sai Lo”.

28.D1 now admits he committed the offence subject of Charge 7 with D5 and “Tai Tung”.

29.D1 now admits he committed the offence subject of Charge 8 with D5.

Criminal record

30.D1 has 7 previous convictions one of which (a theft)  was similar and recorded in 2012.

Antecedents

31.D1 is aged 42 (41 at the time of the offences), educated to higher secondary school level.  He worked as a construction worker.  He lived at a hotel.

Mitigation

32.Ms Memi Ng of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

33.During the video-recorded interview, D1 had demonstrated his cooperative attitude and revealed all that he knew to the police.  During the incarceration period, D1 has reflected upon himself and appreciated the seriousness of his transgression.

34.D1 pleaded guilty in good time to 3 charges of theft of chose in action (total sum $90,000)  and 3 charges of handling the related cheque.  He showed his genuine regret.  One-third sentencing discount should be granted.

35.D1 was born in 1981 at Dongguan, China (now aged 42).  In 1994, at the age of 14, he came to Hong Kong and received education up to Secondary Form 4.  Having quitted school, he was engaged as casual worker.

36.D1’s father passed away in 2019.  His mother, aged 70, had been suffering from persistent knee pain and she had undergone a knee replacement surgery in November 2023.  After the operation, she has to attend regular follow-up consultations.  D1 has an elder sister, who works in the Mainland.  Currently, D1 is living with his mother.

37.D1 has a record of 7 criminal records, one of which was Theft (Item 2)  in 2012 for which he was fined $1,000.  His last record was one of Gambling in a gambling establishment for which he was fined $800 on 8 September 2022.

38.Prior to the commission of the offences in the instant case, from 2021 onwards, D1 was earning an average of $10,000 per month as painting/renovation worker.  At times, he could earn up to $20,000 - $30,000.

39.D1 has written a letter (with English translation)  to the court expressing his remorse.  He begs for a chance to re-navigate his life.

40.During the incarceration period, D1 had attended the course organized by Grace International Seminary.  A certificate issued by the said Seminary on 2 August 2023 is submitted.

41.The maximum penalty for theft offence is 10 years’ imprisonment.  There is no tariff.

42.The maximum penalty for handling offence is 14 years’ imprisonment. There is no tariff.

43.On sentencing for the theft charges, Ms Ng referred to HKSAR v Lam Ka Chung & Ors, DCCC 198/2018.

44.The theft offences in the instant case were committed on the same day involving the same type of subject matter and resulting in the same victim, may the court consider part of the individual sentences be served concurrently.

45.On sentencing for the handling charges, Ms Ng referred to R v Chan Wing Kwan & Anor, CACC 121/1985 and HKSAR v Cheng Chi Wai, CACC 94/2011 & CAAR 2/2011.  In the latter case, the Court of Appeal, having referred to R v Webbe [2002] 1 Cr App R (S)  22, identified the following factors (at para 55)  as being relevant in the consideration of sentence:

(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)  As is statutorily provided by section 151(2)  of the Powers of Criminal Courts (Sentencing)  Act 2000, the commission of an offence while on bail.]

46.In the instant case, there is no evidence that D1 knew the origin of the stolen cheques, let alone it could have been stolen in the course of burglary. In any event, the burglary was not a domestic one.  Furthermore, the “handling” process was less than a sophisticatedly executed plan.  The rewards, which were not exceptionally high, were ultimately paid back to “Tai Tung” because one of the “cheque-cashers” went missing (para 10(i)  of the Re-amended Summary of Facts refers).

47.Theft and handling offences were committed on the same day involving the same type of subject matter and resulting in the same victim, may the court consider part of the individual sentences be served concurrently.

48.It is apparent that the theft charges mirror the handling charges.  All six charges, to which D1 pleaded guilty, took place on the same day, involved the same modus operandi and the same victim (ie Kam Lung).  In view of the totality principle, Ms Ng asks the court to consider ordering most, if not all, of the theft sentences and the handling sentences be served concurrently.

Sentence

49.The medical report on D1 was unremarkable and did not shine any light on how the abdominal pain or industrial accident happened or could have happened.

50.I have had regard to all the sentencing cases referred to by Ms Ng.

51.All of the offences subject of the charges were perpetrated by more than one person.  The aggravating factor of joint enterprise applies to all charges.

52.Upon arrest on 30 December 2022, D1 said under caution that it was “Tai Tung” (who featured in Charges 1, 3 and 7 of Theft)  who instructed him to find people to cash the cheques.  Although “Tai Tung” did not feature in charges of Handling involving D1 (Charges 2, 4 and 8), I am satisfied that the Handling charges are simply mirror charges to the Theft charges.  As such, I will not regard D1 as being the mastermind of the Handling offences either.

53.For the theft charges as against D1, taking into account the amount stolen, that D1 initially took reward for his role in the offences, I take an initial starting point of 18 months’ imprisonment for each charge.

54.The Handling charges (Charges 2, 4 and 8)  are mirror charges of the theft charges.  I adopt the same initial starting point for these charges as for the theft charges.

55.Because of the aggravating factor of joint enterprise, all the starting points are increased by 3 months to ones of 21 months.

56.Despite the two court-day absences, I will treat D1 as having pleaded guilty in good time.  He shall be given the customary 1/3 discount in sentence.  I can see no other mitigating factors of weight to justify another sentence reduction.

57.It is true that the 3 pairs of theft-handling offences all happened on the same day and relate to the same victim.  However, they deal with different cheques and so the whole culpability accumulated on that day is more than what is attached to any one particular pair of theft-handling offences.  Although I will make the sentence on each theft charge run concurrently with the sentence on the corresponding handling charge, I can only allow partially concurrent sentences among the pairs of the theft-handling charges.

58.Before passing the final sentence on D1, I will of course consider the principle of totality as applied to him.

(D1, please stand)

59.On Charge 1, the sentence for D1 is 14 months’ imprisonment.

60.On Charge 2, the sentence for D1 is 14 months’ imprisonment.

61.On Charge 3, the sentence for D1 is 14 months’ imprisonment.

62.On Charge 4, the sentence for D1 is 14 months’ imprisonment.

63.On Charge 7, the sentence for D1 is 14 months’ imprisonment.

64.On Charge 8, the sentence for D1 is 14 months’ imprisonment.

65.I order that the sentences on Charges 1 and 2 are to run concurrently between themselves: this is the Group A sentences.

66.I also order the sentences on Charges 3 and 4 are to run concurrently between themselves: this is the Group B sentences.

67.I further order the sentences on Charges 7 and 8 are to run concurrently between themselves: this is the Group C sentences.

68.Lastly, I order that 3 months of each of the Group B and Group C sentences are to run consecutively between themselves, and to the whole of Group A sentences, resulting in the final sentence for D1 of 20 months’ imprisonment.