HKSAR v. Wong Chiu Kwan

DCCC11/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 11 OF 2011

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Reasons for Sentence

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1.D2 pleads guilty to Charge 2, handling stolen goods. In court, D2 admits the following facts. D2 was a former employee of Ken’s Design Decoration and Contracting Limited. The company stored renovation materials, including electric wires, at Flat C, 16th Floor of Bold Win Industrial Building in Kwai Chung.

2.On 21 October 2010, D2 and D1 got there in a van.  Later, another man came.  D1 and the third man went up the building and took some wires from the premises.  The goods were loaded onto the van.  The van driver drove D1 and D2 to Cha Kwo Ling.  There, D1 and D2 unloaded the wires.  The wires were sold to a scrap metal shop for $10,000.  The wires weighed over 500 kilograms.

3.In this case, D1 is charged with Charge 1, burglary.  He pleads not guilty.  His defence is that he just helped his own neighbour, D2, to move the copper wires, and he would have a share of the money.  In the course of D1’s trial, the evidence reveals, which I accept as truth, that D2 told D1 that D2’s boss allowed D2 to remove the wires. Actually, D2 had no authority to do so.  On the day in question, D2 gave instruction to the van driver as to where to go.  D2 also did all the talking when he sold the wires to the owner of the scrap metal shop for $10,000.  He collected the $10,000 and he shared the money with D1 and the other man equally.

4.D2 was an ex-employee of Ken’s Design Decoration and Contracting Limited.  He knew the code lock number.  He told that number to D1 to effect entry.  When D1 and the third man went up the premises to take the wires, D2 himself remained downstairs.  He only assisted in loading the wires onto the van, and of course when they went to the scrap metal shop, D2 also had a part in unloading the wires.  It was D2 who did all the talking with the owner of the scrap metal shop for the sale of the wires.

5.In D1’s trial, I accept D1’s innocent claim that he was only dishonestly misled by D2 into the operation.  When I delivered that verdict, D2 and his counsel, Mr Cheng were present in court throughout.  They heard my findings which touched upon D2’s role in this case. 

6.In his mitigation, Mr Cheng says D2 is aged 36.  He is married with a son of only 9 months old.  D2 has to take care of the family and his ill mother.  Mr Cheng emphasises that D2 is only charged with handling, and he pleads guilty as a handler.  Counsel cites two appeal cases.  In CACC No. 8 of 2002, a handler assisting a burglar was sentenced to 16 months’ imprisonment after plea.  The burglar was in breach of trust, but the handler himself was not.  In the other case cited by Mr Cheng, CACC500 of 2003, a handler handled stolen goods worth more than $200,000.  He had no criminal convictions before.  The Court of Appeal reduced the original sentence of 3 years and 3 months to one of 2 years and 3 months.

7.Mr Cheng urges this court to be lenient towards D2, again emphasising that D2 is only guilty as a handler.  I make it clear to Mr Cheng that in the light of what I have found as true in D1’s trial, D2 must be the mastermind of the operation unless D2 can persuade me otherwise.  I invite Mr Cheng to rebuke my finding or to clarify D2’s actual role.  I also make it clear that the fact that D2 is only charged with handling, to which charge he pleads guilty, does not make him less culpable as the mastermind of the whole unlawful enterprise.

8.I stand the matter down so that Mr Cheng can have time to take instruction as to whether D2 is willing to provide more information through his counsel to allow this court to understand his actual role in this case, how he came to be involved.  Mr Cheng comes back and says that he has nothing to add.  In such circumstances, I find D2 was the mastermind of the unlawful enterprise in this case although I must sentence him on the charge he has pleaded guilty, i.e. handling.

9.The Court of Appeal has said in some cases that a handler is more culpable than the thief or the burglar.  This is quite true. If there is nobody to receive the stolen goods, the thief or burglar is less likely to steal.  Even if the handler is not more culpable, he must be as culpable as the thief or the burglar.  The Court of Appeal in the case CACC500 of 2003 cited by Mr Cheng endorsed this view in paragraph 7.

10.I would sentence D2 as a handler, but no doubt he is no less culpable than any thief who went into the premises to steal the copper wires.

11.There are sentencing guidelines for this kind of non‑domestic burglary.  If a burglar with no bad record should get 2 and a half years’ imprisonment as the starting point, I do not see any reason why D2, being the orchestrator of the unlawful enterprise, should get less.  D2 was clever enough to let himself remain only downstairs while asking others to go into the premises to take the wires.  Nevertheless, he received the stolen goods.  Furthermore, D2 is not a man of good record.  He has a number of convictions, including robbery and burglary.  In this case, he is clearly in breach of trust by telling the code lock number to others to effect entry into the company’s premises.  A substantial amount of copper wires was lost, and it was not recovered, and there was no compensation offer.

12.In my opinion, 2 and a half years’ imprisonment is the lower starting point I can adopt in D2’s case even as a handler.  I give him one-third discount for his plea of guilty on Charge 2.  On that Charge 2, handling stolen goods, I sentence D2 to 20 months’ imprisonment.