HKSAR v. Sung Ching Wing

DCCC144/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 144 OF 2010

--------------------

--------------------

------------------------------

Reasons for Sentence

------------------------------

1.The defendant pleaded guilty to two counts of theft and two counts of handling stolen goods and is convicted accordingly.  Here are the reasons for sentence.

Brief facts

2.At about 4.00 pm on 24 December 2009, PW1, Yu, parked his Mitsubishi tractor DF 4226 and the trailer numbered 45257 T, at Mei Wong Car Park near Container Terminal 8 in Tsing Yi.

3.At about 8.45 pm on 26 December 2009, the tractor DF 4226 was discovered at the roadside of Chuk Yau Road, Lok Ma Chau.

4.PW1 later identified the tractor as his property, while the trailer, worth about $25,000, went missing.  The door and the ignition key of the tractor were prised and the passenger window was opened.

5.At about 4.23 pm on 1 January 2010, PW2, Wong, parked his HINO tractor HP 7020 (worth about HK$200,000) and the trailer numbered 49351 T (worth about $40,000) at Heng On Car Park in Tin Shui Wai.

6.The tractor and the trailer belonged to PW2’s company Shun Tong (China) Logistics Co. Ltd and were registered in the name of PW3, Leung.

7.At about 9.30 pm on the same day, the police intercepted the defendant who was driving a tractor MD 4549 with a trailer displaying 49041 T.  It was found that the trailer had no license plate and the registration number plates of the trailer had been tampered with.

8.Upon enquiry, it was confirmed that the trailer belonged to PW2’s company and PW2 confirmed that he did not authorise any person to use his trailer.

9.The defendant was arrested.  Under caution, the defendant admitted that he stole a tractor with this trailer at a car park at Tin Shui Wai at about 7.  He prised the car door with a screwdriver and ignited the engine of the tractor with a coin.

10.He then drove the vehicle to Mai Po Lung.  He connected the trailer to his own tractor, and changed the registration number plate of the trailer and removed its Mainland registration number plate as he was prepared to drive the same back to the Mainland.

11.He discarded the tractor at an open space near Shek Wu Wai Road, Mai Po Lung.  The police were able to locate tractor HP 7020 at Mai Po Lung Road.  PW2 later identified the tractor and the trailer as his stolen property.

12.The lock of the driver’s door of the tractor had been prised and damages were done to the other part of the vehicle.

13.The PRC number plate and the licence plate of the trailer went missing.  Its Hong Kong number plate was changed. The costs of repair was about $2,000.

14.In a video-taped interview, the defendant made the following admissions under caution:

1. He worked as a truck driver.

2. He was instructed by a Mainlander called Ah Kwai to steal a trailer on 1 January. He brought along an electric drill and a screwdriver and went to a car park in Tin Shui Wai. He eyed on those models in 90s as the engine could be easily ignited without keys.

3. He found a red HINO tractor with a trailer. It took him 30 minutes to prise open the door and to start the engine.

4. He drove the tractor and trailer to Mai Po Lung Road and disconnected the trailer from the tractor. He removed the Hong Kong and Mainland number plates and licence plate from the trailer and inserted a false number plate. The false number plate was used on a previous occasion when he stole a trailer.

5. He discarded the tractor near Mai Po Lung Road.

6. He then drove his tractor MD 4549, which was parked nearby, and then towed the trailer to Lok Ma Chau border control point.

7. He intended to commute the trailer to Huanggang in Shenzhen where he would receive further instructions.

8. This was the second time he committed similar offence.

9. He stole a Mitsubishi tractor with a trailer near Container Terminal 9 in Tsing Yi on Christmas Eve in 2009. He discarded the tractor and commuted the trailer to Shenzhen. He got RMB$20,000 as a reward.

15.The defendant was later escorted to various places where he identified those locations in connection with the theft of tractor HP 7020 and trailer 49351 T.

16.He identified the screwdriver and electric drill that he used to commit the offence.

17.The defendant was further cautioned.  He confessed and confirmed the course of scene reconstructions during the day.  He further admitted that he was promised to have RMB$20,000 as his reward for the present offence.  The defendant confessed that he got orders from Ah Kwai to tow trailers from Hong Kong to the Mainland since August or September 2009.  He would get $3,000 either in Renminbi or Hong Kong currency for every successful delivery of trailer.

18.In early December 2009, Ah Kwai discussed with him the service of “through train delivery”, namely, the defendant would look for the trailers in Hong Kong and deliver the stolen trailer back to the Mainland.  The defendant would be rewarded $20,000 for each trailer he delivered. 

19.On the Christmas Eve, he armed with a screwdriver and an electric drill and looked for a target near the container terminal.  He made it and later discarded the tractor.  He replaced the number plate of the trailer with a false one prepared by him.  He then commuted the trailer to Huanggang where he got further instructions to deliver the stolen trailer to Mui Lam.  He got RMB$20,000 on that occasion.

20.The travel index record showed that the defendant was in Hong Kong at the material time.

Mitigation

21.The defendant is now 49 years old, and his second wife is now living in China with his third son, aged 5. 

22.He became a truck driver in 1993 and later a cross border driver earning about $18,000.

23.The defendant was enticed by a person living in Mainland who would reward the defendant with $20,000 for stealing a trailer in Hong Kong and deliver the same to the Mainland. 

24.The defendant indulged himself in gambling and hence was heavily indebted.

25.It was submitted that the value of the stolen property was not substantial. 

26.It was further suggested that the starting point for these offences would be around 3 to 4 years. 

27.Regard should be given to the totality principle and concurrent sentences should be given to each set of the offences. 

28.When asked, it was said the previous theft that the defendant committed related to the theft of audio equipment from vehicles.

29.The defendant wrote a mitigation letter pleading for leniency, saying that he was remorseful and that he promised to quit the bad gambling habit and take care of his family of the second marriage.

Sentence

30.In recent years, cross border trading activities and logistics transport intensified with the booming economies in both areas.  That explains why there is a high demand for trailers in Mainland China.

31.The defendant had four previous convictions with three similar offences of theft.  I was told that the nature of theft was different from the present one. 

32.For the present sentencing purpose, I would not take into account of the defendant’s previous convictions.

33.There are no sentencing guidelines for the present offences.  However, there are a number of aggravating factors in the present case.

34.The defendant committed these four offences within half a month.  He was equipped when perpetrating the crimes. False number plates were used to facilitate his commuting of the trailers back to China.  The defendant was rewarded substantially with $20,000 for each trailer delivered, and even a “through train” scheme was designed.

35.This was a cross border crime and apparently another co-defendent or the instigator of the crime positioned himself in China.  That shows a certain degree of organisation and planning and the whole conspiracy or criminal activities can be taken as an organised crime.

36.The court was informed that the first tractor was worth about $20,000 back in 1997, and the trailer was bought in 2007 for $85,000.  The total value of the stolen property amounted to about $465,000 although eventually both two tractors were recovered.

37.I have considered all the circumstances of the case and the mitigating factors.  The most important mitigating factor for the defendant is his guilty plea, for which he is entitled to have a one-third discount.

38.I have considered the sentencing considerations propounded by the Court of Appeal in HKSAR v Ho Wing Yin, CACC50/2009, particularly the factors relating to the closeness to the original offence, the high value of the stolen property, the degree of sophistication, the level of profit and the provision of regular outlet for stolen goods.

39.I also accept that the defendant was not an organiser or the instigator of the offences.

40.Accordingly, for the 1st charge of theft where both the tractor and the trailer were stolen, I would adopt a starting point of 3½ years. In light of the defendant's plea, the sentence is reduced to 28 months.

41.The 2nd charge of handling relates to the stolen trailer from the 1st offence.  It is not an alternative count and I accept that the defendant was a handler while not in the course of stealing.  I adopt a starting point of 2 years.  With his guilty plea, the sentence is reduced to 16 months.

42.I take into account of the totality principle and order that the second sentence is to be served concurrently with the first sentence.

43.As regards the 3rd charge of theft, I adopt the same starting point of 3½ years and reduce it to 28 months.  This was a separate offence though similar with the 1st charge.  I consider the totality principle and order that 14 months of this third sentence to be served consecutively to each of the previous sentences.

44.Relating to the 4th charge of handling, again it relates to one of the stolen property in the 3rd charge.  I adopt a starting point of 2 years.  With his guilty plea, the sentence is reduced to 16 months.

45.I order that the 4th sentence to run concurrently with the third sentence.  That is to say, for these four offences, the defendant is sentenced to 28 plus 14 months' imprisonment, totalling 42 months.

46.In pursuance to the Notice dated 19 March 2010, the prosecution applied for an enhancement of sentence under section 27 of Cap.455.

47.The statement of DSI Yeung dated 2 February 2010 was relied on.  It was stated that the number of missing tractors in 2008 and 2009 was 35 and 40 respectively, and that of missing trailers was 54 and 51 respectively.

48.The ratio in relation to overall missing vehicles rose from 2.6 per cent in 2008 to 3.6 per cent in 2009 for missing tractors; and 4 per cent in 2008 to 4.6 per cent in 2009 for missing trailers.

49.Counsel for the defendant objected to the application, submitting that the figures showed no prevalence of crimes that justifies the enhancement.

50.I have considered the submissions made by both counsel and the figures so provided by the prosecution.  I am of the view that the figures do not show a significant increase of prevalence that entitle this court to adopt this exceptional measure to enhance the sentence under OSCO.

51.Accordingly, I reject the prosecution's application for sentence enhancement.