HKSAR v. Chan Hon Kam

DCCC10/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 10 OF 2010

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Reasons for Sentence

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1.The 2nd Defendant pleads guilty to one count of handling stolen goods. In the morning on 12 November 2009, the victim left his residence on the 5th floor at Kai Tin Estate, Kwun Tong, Kowloon. When he returned to his residence at about 4:45 p.m. on the same day, he found that the main door of his residence was damaged. Upon a check, the victim found that the following items were stolen: two pendants, cash of $1,000, one necklace, one bracelet, one share certificate, one mobile phone, one gold medal and one Rolex watch valued at about HK$23,300 (“the Watch”).

2.According to the mother of the 2nd Defendant, the 1st Defendant stayed in the residence of the 2nd Defendant’s mother at a unit on the 4th of Kai Tin Estate, Kwun Tong, Kowloon during the period from 10 to 13 November 2009. The pawn shop check shows that the Watch was pawned by the 2nd Defendant for HK$13,000 on 12 November 2009. The Watch was recovered from the pawn shop on 3 December 2009. On 4 December 2009, the victim positively identified the Watch to be one of his lost properties.

3.The 2nd Defendant was arrested on 4 December 2009. A video-recorded interview was conducted with the 2nd Defendant on the same day, and he admitted under caution that:

(1)  on about 11 November 2009, the 2nd Defendant brought the 1st Defendant to his mother’s residence, and he told the 1st Defendant that he could stay there for a few days;

(2)  the 1st Defendant gave the Watch to the 2nd Defendant on 12 November 2009 as payment of the accommodation;

(3)  the 2nd Defendant believed that the Watch was obtained by the 1st Defendant through unlawful means;

(4)  the 2nd Defendant pawned the Watch for $13,000 on the same day, and he spent the money.

4.It is an agreed fact that, at the material time, the 2nd Defendant dishonestly received the Watch knowing or believing it to be stolen goods.

5.The 1st Defendant had pleaded guilty earlier to two counts of burglary and one count of attempted burglary, and he was sentenced to a total term of 32 months’ imprisonment.

6.The 2nd Defendant is aged 41. He has a total of 11 convictions, though none of them was related to theft offences. According to the mitigation of the 2nd Defendant’s counsel, the 1st Defendant is the ex-boyfriend of the 2nd Defendant’s existing girlfriend. After release from prison, the 1st Defendant indicated to him that he had no place to live, and the 2nd Defendant therefore arranged for the 1st Defendant to stay in his mother’s residence. As he was in need of money, he received the Watch from the 1st Defendant as payment for the accommodation.

7.The 2nd Defendant started the relationship with the existing girlfriend in 2008. The girlfriend has two children to take care of from her previous marriage. The girlfriend gave birth to a daughter with the 2nd Defendant about three months ago and she is now pregnant again. To add to the complication, the girlfriend is a psychiatric patient, and she has trouble taking care of three children at this stage. The 2nd Defendant and his girlfriend are relying on CSSA assistance in the total monthly amount of about $9,000 for their living.

8.In sentencing the 2nd Defendant, I have reminded myself that I am only here to deal with an offence of handling stolen goods of a watch with the value of about $23,000. The 2nd Defendant had not taken part in any of the burglaries committed by the 1st Defendant, and for the purpose of this case, I am prepared to accept that he was not aware of the actual offences committed by the 1st Defendant. Nevertheless, the 2nd Defendant knew that the Watch was obtained by unlawful means. This must have been the case as the 1st Defendant had just been released from prison. Further, the 2nd Defendant must have known that the Watch was a valuable property.

9.I appreciate that sentencing the 2nd Defendant to a term of imprisonment may cause a lot of problems to his girlfriend. However, this does not provide a justification of not imposing a term of immediate custodial sentence. Handling stolen goods is indeed a very serious offence.

10.Taking into account the value of the property in the present case, immediate custodial sentence is the only option. As I am prepared to accept that the 2nd Defendant was not aware of the actual offences committed by the 1st Defendant, I adopt a starting point of 15 months’ imprisonment. Giving the 2nd Defendant one-third discount for his plea of guilty, the sentence is reduced to 10 months’ imprisonment.

11.I would also refer the Defendant’s girlfriend’s case to the Social Welfare Department to see whether appropriate assistance can be provided to her.