HKSAR v. Choi Chin Wang and Others

DCCC 1055/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1055 OF 2010

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REASONS FOR SENTENCE

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1.D1 pleads guilty to two charges of theft, contrary to section 9of the Theft Ordinance, Chapter 210 (charges 1 & 8) and two charges of handling stolen goods, contrary to section 24of the Theft Ordinance, (charges 2 & 5); D2 stands convicted after trial of one charge of theft (charge 8); D3 pleads guilty to one charge of theft (charge 8) and D4 stands convicted after trial of one charge of theft (charge 1).

2.Details of the offences are set out in the facts admitted by D1 and D3 on their pleas and the facts admitted by D2 and D4 at trial. The following is a summary of each charge.

Charge 1 (D1 & D4)

3.On the 4th March 2008 staff of Yosun Hong Kong Corporation Limited (“Yosun”) left thirty four boxes of electronic components outside their warehouse on the 22nd Floor of the Tsuen Wan International Centre. About fifteen minutes later D1 and D4 picked up six of the boxes and left via the staircase. On the way down the staircase they were seen by the security guard. Shortly after D1 and D4 left five of the boxes on the staircase and the sixth one in the lobby of the 12th Floor and made good their escape. The defendants were arrested as a result of palm prints being found on four of the boxes. The value of the electronic components is $23,400.

Charge 8 (D1, D2 & D3)

4.On morning of the 7th June 2010 the police saw D2 drive D1 and D3 in a private car to various industrial areas in Kowloon. When arriving at How Ming Street in Kwun Tong, D1 and D3 alighted and walked to Hoi Yuen Road. D3 picked up a box, containing 114 watches, which box was left unattended on the pavement outside the Yen Sheng Centre. D3 then took a taxi while D1 returned to the car. Two minutes later D3 alighted from the taxi at Hoi Bun Road where shortly after he was joined by D1 and D2. D3 got in the car together with the box of watches.

5.D2 drove D1 and D3 to an address in Tai Kok Tsui where D1 and D3 alighted and took the box of watches into a flat on the 1/F of No. 245 Tai Kok Tsui Road. D2 was arrested in the car and D1 and D3 when they left the flat. One watch was found in the car, ten watches in a bag carried by D3 and the remainder inside the flat. D3’s fingers were found coated with glue. Eleven tubes of AA glue were found in the car. The value of the watches is $31,200.

Charges 2 & 5 (D1)

6.On a day in February 2010 six boxes of LCD monitors were stolen from Sky World Logistics Limited. Three of the boxes were found in the flat at No. 245 Tai Kok Tsui Road, the keys of which were seized from D1 on arrest. The value of the three boxes of monitors is $180,000 (charge 2).

7.One big box containing eleven smaller boxes was also found in the flat at No. 245 Tai Kok Tsui Road. The eleven smaller boxes bore the bar codes of 25,500 integrated circuits valued at $238,680 and which had been stolen from BO Heng Import & Export Trading Co. Ltd on or about the 19th April 2010. The integrated circuits have not been recovered (charge 5).

8.In passing sentence I have carefully considered everything said on behalf of the defendants by Mr Yip. I have considered the letter from Chaplain John Wotherspoon asking for a plan of rehabilitation to be arranged by way of community service and employment retraining for D1. I am satisfied a sentence of rehabilitation is not appropriate in D1’s case.

9.I take into account D3’s clear record together with the letters of support from his family, fiancé and former employer. I take into account the letter from D4‘s previous employer together with the letter written by the defendant in which I note, although convicted after trial, he now express his remorse for acting out of greed.

Starting points

Charge 1 (D1 & D4)

10.This was not simply an opportunistic theft. Clearly the defendants were on the lookout for something to steal as one does not simply walk past the 22nd Floor of an industrial building in their daily life. I have no hesitation in rejecting D4 acted out of momentary greed. Taking into account the value of the goods, although the value depended very much on the good fortune of what the defendant’s picked up, I am satisfied the proper starting point after trial is one of 15 months imprisonment.

Charge 8 (D1, D2 & D3)

11.Although this was the picking up of an unattended box left on the street, this again was not simply an opportunistic theft. Three persons were involved, each playing distinct and important roles. There was a degree of planning as shown by the fact D3 had glue on his fingers to avoid leaving fingerprints and the way in which the stolen watches were first transported in a taxi to avoid the car driven by D2 being seen and therefore traced. Taking into account the degree of planning involved and the value of the goods I am satisfied the proper starting point after trial is 18 months imprisonment.

12.Mr Yip submits that D3 being a person of clear record a community service order is appropriate. At the request of Mr Yip I called for a community service suitability report. The report concludes that due to the seriousness of the case community service is not recommended. I remain of the view, as stated at the time of calling for the report, that the facts of the case are too serious to impose a community service order, in particular considering the degree of planning involved.

13.As the defendant is under 25 and therefore eligible for detention in a Detention Centre I also called for a report as to his suitability to serve a period of detention in a Detention Centre. The defendant is found physically and mentally fit for detention in a Detention Centre. Mr Yip however asks that if the defendant is imprisoned that he be sentenced to a period of imprisonment because the defendant has already spent over five months on remand before being granted bail and has spent a further month in custody pending sentence. If the defendant was to be sentenced to a period of detention in a Detention Centre this period on remand would not count (see section 67A of the Criminal Procedure Ordinance, Chapter 221 and HKSAR v LEUNG Lai-kwan CACC 597/1999 cited by Mr Yip).

14.Whilst young the defendant is not a young offender whereby a sentence of imprisonment can only be imposed where the court is of the opinion no other method of dealing with the offender is appropriate (see section 109A of the Criminal Procedure Ordinance). In the circumstances I am satisfied a prison sentence is appropriate and not a period of detention in a Detention Centre. I find no exceptional circumstances warranting suspension of the sentence.

Charges 2 & 5 (D1)

15.There are no guidelines for handling stolen goods. In passing sentence I take into account the factors identified in R v Bernard Webbe [2002] 1 Cr. App. R. (S) 82 as applied in HKSAR v XIAO Wei [2004] 1 HKC 520 and HKSAR v HO Wing-yin [2010] 2 HKLRD 343, although it is right to note factually both cases are different to the present case. I note that the goods subject of the two handling charges were stolen in a manner similar to the thefts subject of charges 1 and 8.

16.The value of the goods in each case was substantial $180,000 and $238,680, with only the LCD monitors being recovered. D1 was clearly keeping a store of goods which he had either stolen or handled. I am satisfied the proper starting point after trial on each charge of handling stolen goods is one of 2 years imprisonment.

17.D1 is properly to be regarded as a persistent offender, having sixteen convictions relating to dishonesty, including twelve for theft, and four for robbery. The defendant was last sentenced on the 19th September 2008 to a total of 28 months imprisonment having pleaded guilty to five offences of theft in DCCC 322/2008, from which sentence D1 was released from prison on the 2nd October 2009. Clearly previous sentences have had no deterrent effect on the defendant (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830). I am satisfied the starting point on each charge is to be increased by 3 months imprisonment.

18.Equally I am satisfied D4 is also properly to be regarded as a persistent offender, having eight convictions relating to dishonesty, including theft, burglary and robbery for which he has served sentences of up to 5 years imprisonment. However taking into account the charitable donations made by the defendant since his last sentence of imprisonment and his handing to the police a wallet in 2007 I do not on this occasion increase the sentence by reason of the defendant’s persistent offending.

Totality of sentence

19.In determining totality I take into account that the first theft offence (charge 1) was committed before the imposition of the last sentence served by D1. Having looked at the facts of that case I note that D1 was sentenced in respect of five offences of theft committed between October 2007 and February 2008. D1 was arrested for those offences on the 6th March 2008, which was two days after the commission of the first theft offence. The nature of the five offences of theft, being in the context of organized shoplifting, were different in nature to the first theft offence.

20.Taking into account that the first theft was in 2008 and the second theft and the two handling charges were in 2010 I am satisfied an overall starting point of 4 years and 6 months imprisonment is appropriate, which properly reflects D1’s criminality on all four charges.

Sentence

D1

Giving D1 full credit for his pleas of guilty he is sentenced as follows:

Charge 1 – 12 months imprisonment;

Charge 2 – 1 year and 6 months imprisonment

consecutive to charge 1;

Charge 5 – 1 year and 6 months imprisonment

concurrent to charges 1 & 2; and

Charge 8 – 14 months imprisonment

6 months consecutive and 8 months concurrent to charges 1, 2 & 5;

D1 serves a total sentence of 3 years imprisonment.

D2

Charge 8 – 18 months imprisonment from which I deduct 1 month on account of D2 agreeing the whole of the prosecution case. D2 is sentenced to 17 months imprisonment.

D3

Charge 8 – giving D3 full credit for his plea of guilty he is sentenced to 12 months imprisonment.

D4

Charge 1 – 15 months imprisonment from which I also deduct 1 month on account of D4 agreeing the whole of the prosecution case. D4 is sentenced to 14 months imprisonment.