HKSAR v. Koo Tsang Wing and Others

DCCC56/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.56 OF 2010

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Reasons for Sentence

1.D1 faces 2 separate charges of burglary of 2 different non-domestic premises. D2, D3 and D4 together face one joint charge of handling stolen goods. D3 alone faces one additional charge of handling stolen goods. The prosecution offered no evidence against D2 and he was acquitted of the charge. D1, D3 and D4 pleaded guilty to their individual charges, admitted to the summary of facts and were duly convicted.

Facts

2.Shops A and B are adjacent shops located at the ground floor of no.121 and no.119A Nam Cheong Street, Sham Shui Po respectively. On 25^th November 2009, staff of both shops left after office hours between 6:47pm and 7:15pm after locking up.

3.Staff of Shop A returned to the shop at 8:54am the following day to find the shop ransacked. Stolen from the shop were 36.6 kg of bird’s nest, 18.5kg of shark’s fin, 4.5kg of abalone, 3.1kg of cordyceps sinensis (冬蟲草) and 3kg of sea cucumber. Together they are valued at HK$922,702.

4.Meanwhile, the proprietor of Shop B found that someone had excavated a hole 60cm in diameter in the wall between his shop and Shop A. He also found that cash of HK$500 had been stolen from his shop.

5.At about 12:40pm on the same day, 2 police officer spotted D1, D4 and another male walking furtively along Pei Ho Street in Sham Shui Po, with D4 and the other male carrying some bags and suitcases. The 3 of them entered a building at no.230 Tung Chau Street. D1 and the said other male came out from the building after a while, no longer carrying anything.

6.The police officers kept observing and later saw D3 and D4 came out from the building with some bags and suitcases. D3 and D4 met up with D1 and the said male nearby at a parked light goods vehicle. D4 and the other male then loaded the bags and suitcases brought out by D3 and D4 into the said vehicle.

7.Police officers approached the vehicle and revealed their police identities. D3 and D4 fled immediately but were eventually subdued by police officers. D1 and the other male who were inside the LGV at the time were intercepted by police officers.

8.A bunch of keys were found on D3. Upon search, 1 suitcase containing 32 boxes of bird’s nest, 1 suitcase containing 30 boxes of bird’s nest and 3 packets of cordyceps sinensis and 1 bag containing 7 boxes of bird’s nest and 5 packets of shark’s fin were found inside the LGV, which was a total of 34.1kg of bird’s nest, 2 kg of cordyceps sinensis and 7.5kg of shark’s fin.

9.D1 was arrested. Under caution, he told the police that he was the person who committed the burglary of Shop A at Nam Cheong Street, that he will bear the consequences of what he had done since he was caught red-handed. D3 and D4 were also arrested but they remained silent under caution.

10.D3’s home was searched with his consent. D3’s home is located at Room A, 2^nd floor of no.230 Tung Chau Street, which was the building that D1, D3 and D4 were seen to have entered and came out with suitcases, police were able to enter this unit with the keys found on D3.

11.Inside the premises were 7 packets of bird’s nest, 4 packets of cordyceps sinensis, 4 packets of shark’s fin, 2 packets of abalone, 1 packet of sea cucumber, some pliers, screwdrivers, saws and crowbars. There were a total of 2.5kg of bird’s nest, 1.1kg of cordyceps sinensis, 11kg of shark’s fin, 4.5kg of abalone and 2.5kg of sea cucumber.

12.The goods found in the LGV and in D3’s premises were all confirmed to have been property belonging to Shop A.

13.In the subsequent video recorded interview, D1 admitted that he burgled Shop A by first prizing open the iron gate of Shop B with a crowbar at about 8pm on 25^th November 2009, then with the assistance of one “Fei Wai”, he excavated a hole in the wall and entered Shop A. He stole the goods named in the charge and moved them to a housing unit at Tung Chau Street. When he was arrested, he was in the process of loading them on to the LGV to move them to another place. D1 identified himself in the closed circuit television footage of the interior of Shop A between 8:39pm to 9:04pm that night.

14.In D3’s subsequent video recorded interview, D3 claimed that he had no fixed abode in Hong Kong and he resided in the mainland. D3 would stay in the Tung Chau Street address when he comes to Hong Kong. D3 stayed in the room between 23^rd and 26^th November 2009.

15.In the final paragraphs of the summary of facts, by their admission, D3 and D4 admitted that they had dishonestly undertaken or assisted in the retention, removal, disposal or realization of the stolen property named in the respective charge that they are faced with, or dishonestly arranged to do so, by or for the benefit of another, knowing or believing them to be stolen goods.

Previous convictions

16.D1 has 10 previous convictions, 8 involving dishonesty, he was last sentenced to probation in July 2009, he was therefore in breach of the probation order when he committed the present offences. D3 has 4 previous convictions, 2 for handling stolen goods. D4 has 13 convictions, with 10 involving dishonesty.

Sentencing authorities

17.In relation to the handling charges, while not setting down any guideline sentences, the case of R v Bernard Webbe & Ors (unreported), provide some assistance as to certain aggravating factors which may affect sentencing in handling cases. These were set out in R v Bernard Webbe & Ors (at paragraph 20) as follows:

“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.”

Sentence

D1:

Charge 1

18.This charge is essentially an incidental offence committed by the defendant, an opportunistic crime. I will adopt a starting point of 2 years’ imprisonment; reduce it to 16 months’ imprisonment upon the defendant’s guilty plea.

Charge 2

19.This is a daring act on D1’s part. There is some degree of professionalism and quite some sophistication in the commission of this offence. It must have involved the defendant conducting previous reconnaissance missions before targeting Shop A and deciding to go through Shop B, knowing that they will be able to drill through a wall.

20.Then there is the criminal record of the defendant. Although the previous burglary was in 2005, it must be noted that this is already his 3^rd one. The sentences in the previous cases clearly did not deter him from this present offence. The sentence for this present offence must therefore be higher in order to try to achieve a deterrent effect.

21.I am aware that the starting point should be 2.5 years for a non-domestic premises burglary, but that is when there are no aggravating factors. In D1’s case, the organization and planning involved in the case, the involvement of an accomplice and the fact that the defendant is a repeated offender are all aggravating factors. I find that an appropriate starting point for charge 2 is that of 3.5 years’ imprisonment. I will grant the defendant the full 1/3 discount and sentence him to 28 months’ imprisonment. Bearing in mind the principle of totality, I will order that 2 months of charge 1 to be served consecutively to the sentence of charge 2. D1 is therefore sentenced to a total of 30 months’ imprisonment for the 2 charges.

22.As I mentioned above, D1 was in breach of a probation order. This will be dealt with by the magistrate who sentenced him.

Charge 3

D3 and D4’s sentence

23.I have taken into consideration that there is no evidence that D3 and D4 were close to the primary offence, on the contrary, the evidence from D1 himself is that he committed the charge 2 offence with someone else and that he only enlisted the help of D3 and D4 later. The primary offence is relatively serious, but it was committed with the sole consideration to avoid presence of people in either shops and there would have been little or no chance of confrontation. The goods are of high value, but mainly commercial value. The goods were not proceeds of a domestic burglary. The handling of the goods itself was not that sophisticated, goods were stored in the flat of D3, they got a van and then transferred the goods to the van and then got caught. D3 or D4 did not provide, or that there is no evidence that they provided a regular outlet for stolen goods. There were no threats of violence or abuse of power by D3 and D4 over others, nor was the crime committed whilst D3 or D4 was on bail. These are the Bernard Webbe considerations. Of those aggravating factors, only the one in relation to high value of goods apply in our present case.

24.In relation to D3 and D4 on charge 3, bearing in mind those considerations, I will adopt a starting point of 18 month’s imprisonment for each of them on charge 3. Since they both pleaded guilty to the charge, they will be given the full one third discount and I sentence them to 12 months’ imprisonment on this charge.

In relation to charge 4 of D3:

25.He had allowed his premises to be used to store the stolen goods. Although he did not live Hong Kong, he maintained the premise for his own use. His handling of the goods involving the storing of the goods involved more sophistication. Therefore, for this charge, I will adopt a starting point of 21 months’ imprisonment, granting him the full one third discount, I reduce the sentence to that of 14 months’ imprisonment.

Totality

26.I will order that the sentences in charge 3 and 4 that D3 faces be served wholly concurrently. D3 is therefore sentenced to a total of 14 months’ imprisonment.