HKSAR v. Ko Chun Fung

DCCC 599/2023

[2024] HKDC 1354

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 599 OF 2023

________________________

________________________

REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Handling stolen goods" (Charge 1). I granted the prosecution's application to leave Charge 2 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

Theft from vehicle

2.About 1:30 a.m. on 27 January 2023, Mr. Ngai (PW1)  parked his private car GZ1013 ("the Car")  at a metered parking space (No.4838B)  at Woosung Street, Jordan.  He had 2 passengers, Madam Fung (PW2)  and Madam Yuen (PW3), with him.

3.PW2 returned to the Car around 3:10 a.m. on the same day to get her wallet.  She discovered that the right rear window of the Car having been broken and the personal belongings of PWs 1 to 3, which were placed at the rear passenger seat, missing.  The stolen properties included 2 bags of lai see packets (valued at $7,000 in total); an Hermes handbag (valued at $25,000); a Dior wallet (valued at $5,000); 2 sets of Apple AirPods Pro (valued at $4,000 in total); a Loewe handbag (valued at $25,000); a black Chanel wallet (valued at $4,500); a black Chanel cardholder (valued at $3,500); a Lenovo laptop computer (valued at $10,000); and other miscellaneous items such as ID cards, credit cards, ATM cards, and keys.

4.PWs 1 to 3 reported the matter at Tsim Sha Tsui Police Station around 5:00 in the same morning.  The GPS function of the 2 sets of AirPods Pro showed that they were taken to somewhere around Nathan Road and Hamilton Street.

Arrest and admissions

5.DPC 26454 (PW4)  and his colleagues conducted a sweeping in the Yau Ma Tei area together with PWs 1 to 3. 

6.In a McDonald's restaurant situated at Full Win Commercial Centre, No.573 Nathan Road, PW4 saw the defendant sitting on a chair with a few white plastic bags placed on the table next to him.  He fled via the restaurant's rear door carrying with him those white plastic bags.  In his pursuit of the defendant, PW4 saw him dropping a black bag (later identified as PW2's black Hermes handbag)  and a dark coloured denim jacket along the way.  A key chain with keys was later found together with those 2 items.

7.PW4 eventually intercepted the defendant at No.65A Portland Street.  DPC 53485 arrested him for "Criminal damage", "Theft from vehicle" and "Obtaining property by deception".  Upon apprehension, the defendant was holding 2 white plastic bags which contained properties belonging to PWs 2 and 3 including PW3's staff card; a brown Loewe handbag containing a set of Apple AirPods Pro and a black Chanel cardholder with some name cards (all belonged to PW3); and some other properties of unidentified owners.  The items dropped by the defendant during the pursuit were recovered, which included PW2's black Hermes handbag containing PW3's black Chanel wallet, PW2's Apple AirPods Pro; and PW2's key chain with keys.

8.Under caution at the scene, the defendant admitted that "Ah Yi" gave him the stolen properties including 2 handbags, a computer and a credit card.  He gave the credit card to someone named "Yin Jai" to be used at 7-11 stores and Donki.  The defendant claimed that he did not know who broke the window and stole from the Car.

9.In his Record of Interview, the defendant admitted in details as to when and where he received 2 white plastic bags from Ah Yi which contained a piece of black clothing, 2 handbags, a black cap, a wallet, a set of AirPods and credit card(s).  Ah Yi told him that those were stolen goods and asked him to sell them.  The defendant later gave Yin Jai a laptop and 3 to 4 credit cards.  The defendant claimed that Ah Yi would pay him 20% of the amount obtained from selling the stolen goods and purchases made by the credit cards.  He would then pay Yin Jai 40% of what he would receive from Ah Yi.  The defendant fled from the McDonald's restaurant because he knew he was carrying 2 bags of stolen goods.

Mitigation & Sentence

10.The defendant is 27 and has 8 conviction records, which included 6 "Theft" offences and 4 "Burglary" offences.  Defence counsel Mr. Tang informed me that the defendant is single but has 2 children (aged 9 and 8).  His girlfriend has left him for some years.  At the time of his arrest, he was unemployed.  Before that, he was a decoration worker earning about $12,000 per month.

11.In mitigation, Mr. Tang submitted that the defendant did not know about the stealing from the Car until he was told by the Police at the time of his arrest.  He was cooperative throughout.  Mr. Tang stressed that the defendant did not know how the properties were stolen and by whom; he was a mere handler.  Prosecuting counsel Mr. Sher informed me that the defendant was released from prison on 16 January 2023[1].  Mr. Tang has fairly and responsibly provided me with the details of the defendant's last conviction record.

12.When determining the starting point for Charge 1, I have borne in mind the sentencing principles laid down by the English Court of Appeal in R v Webbe (Bernard)  [2002] 1 Cr App R (S)  22(which were adopted and applied by the Court of Appeal in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360). I find 3 aggravating factors exist in the present charge (namely the geographical closeness of the handler to the primary offences; seriousness of the predicate offences – criminal damage and theft from vehicle; and high value of the stolen properties). Furthermore, the defendant is no stranger to theft-related offences. He also re-offended in just 11 days after his release from prison.

13.In my view, the primary offences, namely "Criminal damage" and "Theft from vehicle", would attract a starting point of 15 to 18 months' imprisonment. Since some of the more valuable items were recovered, I consider 15 months' imprisonment to be the appropriate starting point for Charge 1. I will enhance it by 3 months to reflect the 3 aggravating factors mentioned above, bringing the starting point to 18 months. I will further increase the starting point to 21 months because of the defendant's long history of theft-related offences and re-offending shortly after his release from prison. With the timely guilty plea, the sentence is reduced to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 14 months' imprisonment for this charge.