HKSAR v. Chung Szu Yuan

DCCC 989/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 989 OF 2012

____________

__________________________

REASONS FOR SENTENCE

__________________________

1.The defendant pleads guilty to one charge of handling stolen goods, contrary to section 24(1)of the Theft Ordinance, Chapter 210.

2.In summary Mr Law Cho-man and the defendant had been acquainted since 1990.  On the 4th June 1998 the defendant told Mr Law that he had a customer called Upper Top Limited who wished to sell four containers of cigarettes in Singapore for HK$6,628,200.  Mr Law agreed to look for a buyer of the cigarettes in return for which he would receive commission of HK$17,600. 

3.Mr Law asked Mr Hui Wai-nung, whom he had previously worked with, whether he was interested in buying the cigarettes.  Mr Hui agreed to buy the cigarettes and on the 5th June 1998 transferred the sum of HK$400,000 and on the 8th June the sum of HK$6,228,200 to Mr Law’s personal bank account, which sums Mr Law transferred to the defendant’s account with the Bank of China.

4.On the 8th June after Mr Law transferred to the defendant the sum of HK$6,228,200, the defendant, in the presence of Mr Law, immediately purchased a cashier order for HK$6,170,600, which was made payable to “The Chase Manhattan Bank of Singapore for A/C of Upper Top Limited”.  A copy of the cashier order was given to Mr Law.

5.The cigarettes were to be delivered the next day the 9th June 1998. No cigarettes were however delivered the defendant failing to provide any bill of lading.  Mr Hui and Mr Law reported the case to the police the following week.  The defendant had in fact left for the Mainland on the    9th June 1998, only to return to Hong Kong on the 17th September 2012.

6.Police investigation showed that after the sum of HK$400,000 had been transferred to the defendant’s bank account on the 5th June the sum was withdrawn the same day. On the 9th June the cashier order was cancelled and the sum re-deposited into the account.  This sum was then withdrawn by way of six withdrawals, also on the same day.

7.On the 13th and 22nd June 1998 the sums of HK$60,000 and HK$150,000 were remitted to the account of the defendant’s sister.  I am told in July of the same year the sister reported the receipt of these sums to the police resulting in the money being returned to Mr Hui in 2004.

8.In January 2001 the defendant was arrested on the Mainland for an offence of false imprisonment committed in December 2000.  The defendant was sentenced to 11 years and 6 months imprisonment and completed his sentence in June of last year.  After his release having obtained the necessary documentation the defendant voluntarily returned to Hong Kong through the Lo Wu border on the 17th September.

9.In the meantime the police had been able to interview the defendant in China in 2002. Under caution the defendant admitted he was working with two others, Leung and Cheng, to sell the cigarettes and that only after purchasing the cashier order did he become aware there were no cigarettes.  The defendant was then persuaded to join the scam and went to the bank to cancel the cashier order and withdraw the money from his account.  The defendant says he withdrew about HK$6 million and gave HK$3.6 million to Leung and HK$3 million to Cheng.  Cheng promised the defendant a reward of HK$2 million.  The defendant then fled to China the same day with Cheng who provided him with accommodation and a false identity. 

10.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Choy, including the defendant only knew of the scam at the last moment and he had not been paid all his promised reward.  I take into account the defendant had a clear record at that time.

11.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 Cheng Chi Wai [2011] 4 HKLRD 360. 

12.The court in Webbe listed nine factors which may be regarded as aggravating the offence of handling.  Of these the following are present in this case: the closeness of the handler to the primary offence; the seriousness of the primary offence; the high value of the goods to the loser and the high level of profit to be made by the handler.

13.The theft whilst not sophisticated was a carefully planned scam to obtain over HK$6 million, making this a serious theft.  The defendant may not have been the mastermind of the scam but as soon as he was aware of the scam he willingly continued with the transaction and handed over HK$6 million for which he was to receive a reward of HK$2 million.

14.Webbe also identified mitigating factors.  This may have been a one-off offence committed by an otherwise honest defendant but the fact remains the defendant stood to benefit substantially and that very little has been recovered.  Mr Choy says the defendant only received about HK$150,000 for his living together with the $210,000 remitted to his sister.  The fact the defendant did not actually benefit from the $210,000 and did not receive all of the promised reward does not in my view afford him any mitigation.  On discovery of the scam the defendant could easily have returned the money to his friend but instead gave the money to Cheng and Leung in the hope of substantial benefit to himself.

15.The guidance given in Webbe is post the commission of the offence by the defendant.  However the courts have long held that where the defendant has handled goods taken in a major theft or robbery a substantial prison sentence is to be imposed (see for example R v Hui Kam Ming [1994] 2 HKCLR 247).  Having carefully considered all the circumstances of the case I am satisfied the proper starting point is one of 4 years and 6 monthsimprisonment, which would have been imposed had the defendant been before the court in 1998 the year of the offence.

Surrender

16.The defendant left Hong Kong on the same day as the offence and only returned to Hong Kong on the 17th September last year, just over 14 years later.  Mr Choy submits that the defendant having entered an early plea of guilty and having voluntarily surrendered should be given a full one-third discount.

17.In HKSAR v Chow Tak Fuk CACC 428/2004 the defendant absconded to the Mainland for some 12 years when he returned to Hong Kong and was intercepted by the police at the border.  The Court of Appeal in upholding a discount of only 25% on a plea of guilty said:

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

18.Similarly in HKSAR v Sun Yu Hing [2011] 4 HKLRD 17 the defendant left for the Mainland almost immediately after committing a robbery and was only arrested about two years later when he returned from the Mainland.  The Court of Appeal in upholding a discount of 20% adopted the approach in HKSAR v Chow Tak-fuk

19.In other cases the Court of Appeal have said that where a defendant leaves Hong Kong after committing offences but subsequently surrenders himself to the police these two factors cancel each other out and therefore the defendant should be given the usual one-third discount (see for example R v Lam Kuen [1997] 4 HKC 429; and HKSAR v Lam Kam Tou [2006] 4 HKLRD 103).

20.Whether a lesser discount is appropriate is contextual and will depend very much on the individual circumstances.  Whilst the defendant did not flee to the Mainland after arrest he clearly left Hong Kong almost immediately to avoid arrest and assumed a false name on the Mainland.  The defendant did not return to Hong Kong for over 14 years, largely due to his serving a sentence of 11 years and 6 months in the Mainland. 

21.I take into account that the defendant eventually surrendered and that earlier in 2002 he had cooperated with the police by admitting his involvement in the crime.  In all the circumstances I am satisfied the appropriate discount is one of 14 months imprisonment, which is just over 25% discount from the starting point of 4 years and 6 months imprisonment. The defendant is convicted and sentenced to 3 years and 4 months imprisonment.