HKSAR v. Cheng Kwok Hung

DCCC1218/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1218 OF 2010

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to one offence of handling stolen goods contrary to section 24 of the Theft Ordinance, Cap.210, one offence of obtaining property by deception contrary to section 17(1) of that same ordinance which is an alternative charge to Charge 2, and to one offence of using an ID card relating to another person contrary to section 7A(1A) of the Registration of Persons Ordinance Cap.177. You admitted the brief facts and I convicted you.

2.The facts were as follows: between 31 October 2009 and 10 November 2009 a lights good vehicle LS8521 owned by Long Data Technology Limited and parked in a car park in Shamshuipo was stolen.

3.On 10 November 2009 Mr Genghis Khan, PW2, received a call from an unknown male offering it for sale. Consequently, he went to No. 3 Fuk Hei Lung Hing Car Park in Lok Ma Chau where he met you who claimed to represent the owner. In fact, you represented the unknown male.

4.You stood next to the van. At PW2’s request you handed him the ID card of Mr Lau Kwok-leung, an innocent person, claiming to be the ID card of a van owner, the unknown male. PW2 took photographs of the ID card and of you. Inside that car park PW2 spoke to the unknown male by telephone. The unknown male promised to provide PW2 with the van keys and vehicle registration document by the next day. After bargaining for a while, PW2 gave you $15,500 for the van. You handed over a parking ticket and left. Subsequently PW2 could not contact the unknown male nor obtain the registration documents or keys. He therefore reported the matter to the police.

5.Your fingerprints were found on the ticket and you were arrested. You admitted to meeting PW2 and that you knew the van to be stolen. You said you had been instructed by one Ah Ming who gave you the ID card and asked you to sell the van for him. Mr Lau Kwok-leung, the proper owner of the ID card, had previously lost it.

6.You admitted four previous convictions and one subsequent conviction.

7.On your behalf, Mr Yuen very helpfully submitted a written mitigation and I appreciate that. I was told that you are 54 years of age, married to a lady in the Mainland and you reside with your elderly mother who suffers from diabetes. You had claimed therein that you had invited the police to prison and confessed your part and tried to assist them to apprehend the persons involved. A letter which provides some partial support for that proposition has now been produced to me and I will refer to that later.

8.Mr Yuen informed me that you were now remorseful. Your part was to assist Ah Ming to sell the vehicle and you received only a thousand dollars for your efforts. You were not the mastermind. The vehicle was recovered and presumably restored to its rightful owner and it was accepted that $15,000 had been lost.

9.Mr Yuen referred me to the case of HKSAR v. Xiao Wei 2003 3 HKLRD 1063. In that case the defendant was convicted after trial of handling stolen goods worth $11,200, process of a house burglary. A starting point of 18 months is appropriate.

10.Mr Yuen submitted that the case was similar with additional mitigation and that you had co-operated with the police. I was urged to sentence all three offences to a term of imprisonment concurrently on the basis they all formed one transaction. Mr Yuen informed me that you are presently serving a sentence of 22 months’ imprisonment imposed on 7 April of last year and you will be released on 30 August of this year. He invited me to apply the principle of totality and to make at least part of the present sentence concurrent with that sentence.

11.I have referred to a letter previously. That letter was produced before the court and confirmed that you had, indeed, written from prison asking to declare two offences. To that extent, and I accept this to be the case, there was a level of cooperation from you.

12.It was also put forward, and I accept this to be the case, that this present offence was not committed on bail and that the offence for which you received the 22 months’ imprisonment does, in fact, form a subsequent conviction. Whilst you do have previous convictions for dishonesty, you have nothing similar.

13.Finally, a letter was submitted from yourself which was translated and I have taken that into account when sentencing you.

14.I turn now to the sentence. You are a man with previous convictions for dishonesty although I do accept what was said that there is nothing similar. However, in this offence there was a degree of planning. It was a well executed scheme to defraud the victim. The scheme involved a stolen vehicle, false promises and an ID card unrelated to you or the unknown male. The victim has lost his money. I do accept that you were not the mastermind behind the scheme and that your reward was small. I also accept that the three offences formed part of one transaction. I also accept that you were co-operative with the police and helped to clear up the matter.

15.This offence involved the handling of a stolen vehicle, albeit of a modest value which differs from the authority produced to me. The courts in Hong Kong have approached the handling of stolen vehicles in a slightly different way from other stolen property to the extent that it is generally regarded as more serious.

16.The authorities tell me that the starting point goes between 2 and 4 years. In the sentences I am about to impose I have taken into account the principle of totality. I have made full allowance for all the mitigation I have mentioned and I have also, as I said, have taken a view that this forms part of one transaction.

17.Given all circumstances, I take an overall starting point of 27 months reduced to 18 months for your plea of guilty.

18.The following sentences will be imposed. On Charge 1 I take a starting point of 27 months reduced to 18 months; Charge 3, 27 months reduced to 18 months and Charge 4, 6 months reduced to 4 months. These will all be served concurrent to each other, making an overall sentence of 18 months’ imprisonment.

19.However, this is a separate matter from the matter for which you were sentenced in April of last year. In my opinion, it would be wrong in principle to make any of it concurrent. Therefore, the 18 months will be served consecutively to that sentence.