HKSAR v. Lau Wa Kwo and Another

DCCC 1003/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1003 OF 2012

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REASONS FOR SENTENCE

1.D1 pleads guilty to two charges of handling stolen goods, contrary to section 24 of the Theft Ordinance, Chapter 210 (charges 1 & 2) and one charge of using a false instrument, contrary to section 73of the Crimes Ordinance, Chapter 200 (charge 3). In respect of charge 1 the prosecution accept that D1 never dishonestly handled the Sony Ericsson mobile phone (exhibit P9). D2 is convicted after trial of handling this Sony Ericsson mobile phone.

2.In summary during the early hours of the 19 July 2012 the home of Madam Chan and Mr Pok was burgled.  15 items were recovered (exhibits P3-P17) all of which are particularised in charge 1 except the Apple iPhone (exhibit P3) which is the subject of charge 2.  The iPhone was pawned by D1 on the 21 July at the Po Hung Pawnshop for $3,500. 

3.On the 27 July D1 attempted to obtain $50,000 by uttering a cheque stolen in the burglary at a branch of HSBC in Tsuen Wan.  The cheque was a blank cheque pre-signed by Mr Pok.  The cheque had been filled out with D1 named as the payee.  The bank staff being suspicious about the cheque asked the defendant to produce her identity card.  The defendant gave the identity card of Mr Pok, which had also been stolen in the burglary.  Later the defendant gave her own identity card but left without retrieving her identity card or the cheque.

4.On the 29 July the police recovered 11 items stolen in the burglary from the home of D1.  D1 was arrested on that day.  D2 was arrested on the 2 August at which time he was in possession of the Sony Ericsson mobile phone.  In their interviews to the police both defendants said the other defendant committed the burglary. 

5.D1 admitted the property found in her home; the Apple iPhone, the cheque and Mr Pok’s identity card had been obtained from burglary.  D2 admitted D1 gave him the Sony Ericsson mobile phone on the 27 July having first seen the mobile phone at the home of D1 on the same morning as the burglary and at a time when he saw other property he knew was stolen from the burglary.  For the reasons given in my verdict delivered earlier today I was satisfied the only inference to draw was that D2 knowing or believing the Sony Ericsson mobile phone to be stolen goods dishonestly received the mobile phone. 

6.I have carefully considered everything said by Mr Swainston on behalf of D1 together with the content of the psychiatric report and the letter written by D1.  I take into account the circumstances D1 says she became involved in these offences and that at the time, whilst knowing what she was doing was acting under the influence of prescription drugs.  I note D1 has previous convictions for offences of dishonesty including theft and obtaining property by deception for which she has been sentenced to terms of imprisonment but none for either burglary or handling stolen goods. 

7.I have carefully considered everything said by Mr Andrews on behalf of D2, including the defendant gained little or no benefit from the use of the Sony Ericsson mobile telephone.  D2 has a formidable criminal record having appeared in court on 35 occasions amassing a total of 47 convictions.  Although many are in connection with dutiable goods 11 are for offences of dishonesty including one in 2004 for handling stolen goods for which he was sentenced to 2 years imprisonment.  In my view the defendant is properly to be regarded as a persistent offender for offences of dishonesty.

8.There are no guidelines for handling stolen goods.  In passing sentence I take into account the aggravating and mitigating factors identified in R v Bernard Webbe[2002] 1 Cr. App. R. (S) 82 as applied in HKSAR v Xiao Wei [2003] 3 HKLRD 1063.  The court in Webbe listed nine factors which may be regarded as aggravating the offence of which the closeness of the handler to the primary offence and that the goods were the proceeds of a domestic burglary are present in this case.

9.In Xiao Wei the applicant was convicted after trial and sentenced to 4 years imprisonment for handling a watch stolen in a domestic burglary.  The Court of Appeal considering the burglary, albeit committed in the early hours of the morning, was not accompanied by threats of violence; the Applicant did not know the watch had been stolen in a burglary; the value of the watch being about $11,200 was not especially high; his profit was said to be limited to $1,000; and by using his own identity card to pawn the watch revealed a considerable lack of sophistication by providing details through which he could be (as indeed he was) traced, said a starting point of 18 months imprisonment was appropriate, which was increased by 9 months by reason of being a persistent offender.

10.Taking into account the closeness of the handling to the primary offence which was a domestic burglary, a fact known to the defendants, I am satisfied the proper starting point in respect of D1 on charge 1 is 21 months imprisonment and charge 2 is 15 months imprisonment. 

11.The uttering of the cheque by D1 in an attempt to obtain $50,000 also revealed a considerable lack of sophistication.  Looking at the cheque the prospect of success in obtaining money must have been near impossible.  In the circumstances I am satisfied the proper starting point on charge 3 is 12 months imprisonment.

12.In respect of D2 who only handles the Sony Ericsson mobile telephone I am satisfied the proper starting point is 15 months imprisonment.  Applying the principles in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 by reason of the defendant being a persistent offender I increase the starting point by 6 months to 21 months imprisonment.

Sentence

13.>13.  The defendants are convicted and sentenced as follows:

D1

Charge 1 – 1 year and 2 months imprisonment;

Charge 2 – 10months imprisonment;

Both handling offences relating to property stolen from the same burglary I order concurrent sentences.

Charge 3 – 8 months imprisonment

Although the cheque was also stolen in the same burglary I am of the view by committing a further offence with that cheque a consecutive sentence is appropriate. Considering totality of sentence I order 4 months to be served consecutive and 4 months concurrent to charges 1 & 2 making a total sentence to be served by D1 of 1 year and 6 months imprisonment which I am satisfied properly reflects the criminality of D1.

D2

Charge 1 – 1 year and 9 months imprisonment.