HKSAR v. Lee Kui Man

DCCC412/2010 &
DCCC905/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 412 OF 2010 & 905 OF 2010

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

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

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

Reasons for Sentence

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

DCCC 412/2010

The defendant pleaded guilty to a charge of "Handling stolen goods".

2.About 8:25 am on 12 January 2010, the defendant tried to leave Hong Kong for Shenzhen via the Lo Wu Checkpoint. He was stopped at the Immigration counter and was handed over to the Police. At that time, the defendant was carrying a plastic bag which contained 2 pairs of baby shoes.  Upon search, the Police found 9 genuine Rolex watches and 2 gold rings being concealed inside the 2 pairs of baby shoes.

3.After verifying the serial and model numbers of the 9 watches found on the defendant, a representative of the Rolex (Hong Kong) Services confirmed that 8 of those watches are part of the 83 Rolex watches which were found missing from the Daimaru Kobe department store in Kobe, Japan in the morning on 23 June 2009.  The total wholesale value of the said 8 Rolex watches is approximately HK$500,000.

4.When questioned under caution about the source of the 9 watches and 2 gold rings found on him, the defendant remained silent.  He now admits that knowing or believing the said 8 Rolex watches to be stolen goods, he dishonestly received them, or dishonestly undertook or assisted in their retention, removal, disposal or realization by or for the benefit of another person, or dishonestly arranged to do so.

DCCC 905/2010

5.The defendant pleaded guilty to 4 charges of "Burglary" (Charges 1 to 4).

6.The commercial premises particularized in Charges 1 to 4 were burgled between June 2002 and April 2003. Mainly cash was stolen from the said premises. DNA materials were lifted from 2 cigarette butts (respectively Charges 1 and 3), a soda can (Charge 2) and a paper cup (Charge 4) found in the respective victim companies.

7.After the defendant was arrested for the offence in DCCC 412/2010, his DNA samples then became available for testing. Upon analysis by Government Chemists, the DNA materials lifted from the respective objects found in the 4 victim companies were found to belong to the defendant on a Random Match Probability of 1 in 12.6 billion (Charges 1, 2 and 3) and 1 in 2 trillion (Charge 4).

8The defendant had no previous dealings with the companies particularized in Charges 1 and 2, and was never employed by either company. The defendant now admits that he burgled the premises particularized in Charges 1 to 4.

Mitigation

9.The defendant is now 47. For the purpose of sentencing, he has 8 previous conviction records, which include 2 offences of "Robbery" and 2 offences of "Burglary". His last conviction was in December 1997. The defendant is married with a 3-year-old daughter and a 1-year-old son. They live together in Hong Kong. Prior to his arrest, he worked as a garment merchandiser earning about $8,000 per month.

10.Defence counsel Ms. YAP submitted that the defendant is the sole bread winner of his family. He is a responsible father, husband and son; he supports his wife, children and aged mother in every aspect. The defendant committed the burglary offences in 2002 and 2003 because his father was suffering from cancer. The defendant was under tremendous financial stress during that time since he was unemployed. Regrettably, his father passed away in 2003. Ms. YAP stressed that the defendant managed to stay "clean" after his last conviction in 1997. I do not quite agree with that because the defendant has committed 4 burglary offences in 2002 and 2003, except he was not caught until his recent arrest in January this year. Ms. YAP further submitted that the defendant handled the stolen Rolex watches because he wanted to provide with his family a better living. The contents of the 3 mitigation letters are noted.
Sentence

DCCC 905/2010

11I will sentence the defendant in chronological order of the offences, so I will deal with DCCC 905/2010 first.

12.Time after time, the court has expressed in very clear terms that having a sick family member is no mitigating factor for committing a crime. I cannot stress this message enough. The lack of financial ability is also not an excuse for any crime. There are proper means and channels for the sick and the poor to seek help from the society.

13.The normal starting point for non-domestic burglary is 2.5 years imprisonment. The defendant is, however, no stranger to theft-related offences. Given his previous records, I have all the reasons to treat him as a "repeated offender", and adopt a higher than normal starting point to add a deterrent element. On the other hand, I note that his last burglary conviction took place in 1992; he did manage to stay "clean" for about 10 years before he re-offended. With some reluctance, I will adopt the usual starting point of 2.5 years for Charges 1 to 4. One-third discount is given for his guilty pleas, reducing each sentence to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence I pass for each charge is 20 months imprisonment. Having considered the proximity of the offence dates and the totality principle, I order the sentences for Charges 1 and 2 to run concurrently; Charges 3 and 4 also to run concurrently but consecutive to Charges 1 and 2. The total prison term for all 4 charges is 40 months (3 years and 4 months).

DCCC 412/2010

14.I bear in mind that the 8 Rolex watches are properties stolen from a department store in Japan at night after it was closed for business. Based on their nature and value as well as the mode of stealing, I consider 2 years imprisonment to be the appropriate starting point. One-third discount is given for the guilty plea, reducing the sentence to 16 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence I pass is 16 months imprisonment.

15.The offence in this case is separate and distinct from those in DCCC 905/2010. Notwithstanding the totality principle, I order the sentence in this case to run consecutive to all the sentences in DCCC 905/2010. In other words, the total prison term for both cases is 56 months (4 years and 8 months).