HKSAR v. Chan Ho and Another

DCCC 441/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 441 of 2013

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Reasons for Sentence

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1.The two defendants were jointly charged with two separate offences. The 1st charge was that of theft, contrary to section 9, and the 2nd charge was that of fraud, contrary to section 16A, respectively of the Theft Ordinance.

2.This case was about the defendants stealing a light goods vehicle and from it some of its contents.  They sold the light goods vehicle to an innocent bona fide purchaser for value by dishonestly and falsely representing that the 2nd defendant was the owner of the vehicle.

3.D1 was an employee of the owner, Mr Wong Tak-kee, of the light goods vehicle.  This vehicle was used in connection with Wong’s business.  Wong operated a recycled goods yard in Yuen Long.  As Wong was disqualified from driving, he employed D1 to drive for him from March 2012.  D1 was only permitted to drive the light goods vehicle in the company of Mr Wong.  D1 did not have the keys of the light goods vehicle.

4.The light goods vehicle was purchased by Wong in 2008.  However, after his disqualification in early March 2012, Mr Wong transferred the registered ownership to his sister, Miss Wong Yau-lan.  No money exchanged hands and his sister held the light goods vehicle on trust for her brother.  Their agreement and acknowledgment between them that Wong remained the owner of the vehicle.

5.At all material times thereafter the light goods vehicle remained in the possession of Wong and was used by him in furtherance of his business.  After the transfer of ownership by Wong to his sister, an unsigned vehicle registration document then in his sister’s name was left in the light goods vehicle in a folder on the dashboard near the windscreen.  Wong had forgotten to take the documents out of the vehicle and put them back where he usually kept them, which was in his office drawer. 

6.Approximately a week after the transfer of ownership was made to his sister, the vehicle was stolen from his yard.  At that time the vehicle was stolen from Wong’s recycle yard where it was parked.  The yard’s door was broken open and the vehicle stolen. 

7.On the day before the vehicle was stolen Wong had received a phone call informing him that a citizen had found his vehicle registration document.  The caller told him he could collect the vehicle registration document from the police station in Happy Valley.  However, as it was far away, Wong asked if it could be collected at a nearer police station.  The caller agreed and said Wong could pick it up at Yau Ma Tei Police Station.

8.The following day, 21 March, Wong headed out to Yau Ma Tei Police Station to obtain his vehicle registration document.  Upon arrival at the Yau Ma Tei Police Station, the police officers told Wong they had no such document or information.  Whilst there Wong received a phone call saying that the vehicle registration document would be delivered soon and he was to please wait there at the police station for the document to be given to him as the caller was on his way.

9.After waiting for some time, Mr Wong called the caller and the caller told him again to wait as he would be there soon.  Mr Wong continued to wait at the station but the caller did not arrive.  Later the police officers at Yau Ma Tei Police Station told him that there was no record of any vehicle registration document found or handed in the Happy Valley Police Station.  Mr Wong then called the caller again, but this time he was unable to get through as the line was dead.

10.Mr Wong felt suspicious about the whole matter but left the police station and returned to his yard.  When he returned to his yard, at about 2 pm, the yard door was broken open and his light goods vehicle was missing.

11.Upon investigation it transpired that on the same day, the vehicle’s registered owner had been changed at the Hong Kong Government’s Transport Department from Wong’s sister’s name, to D2’s name.  The vehicle registration document (which was left in the vehicle) was in the sister’s name and had been fraudulently transferred to D2’s name at the Transport Department on 21 March. 

12.On the very same day, D1 had telephoned a car salesman that he had a light goods vehicle for sale.

13.On the following day after the vehicle was stolen D1 and D2 were in the process of selling the vehicle.  On 22 March, D1 and D2 met with the bona fide purchaser for value and sold this vehicle to him for $175,000.  The purchaser, Mr Kit, issued a cheque in D2’s name and on the same day D2 cashed the cheque at the bank.  The following day, the police officers located Mr Wong’s stolen vehicle and D1 identified the vehicle as his. 

14.D1 and D2 were negotiating the sale of Wong’s vehicle, at the purchaser Mr Kit’s office.  During that time, at the offices a CCTV video recorder was making a recording of the persons present in the office.  This recording showed the presence of the 1st and 2nd defendants, as well as Mr Kit and the sales agent in Kit’s office. 

15.This was a well-planned calculated theft and sale of Mr Wong’s light goods vehicle.  Mr Wong had been set up to go to Yau Ma Tei Police Station so that he would be out of his yard. In his absence the light goods vehicle was stolen.  I was satisfied that D1 and D2 was inextricably involved and linked to stealing the vehicle.  D1 and D2 had stolen D1’s employer’s vehicle and sold it the very next day.

16.D1 is 21 years of age.  He has nine previous convictions, three relate to dishonesty of which two of them are for theft and one is for robbery.

17.D2 is 29 years of age.  He has two previous of which one relates to dishonesty. 

18.The defendants are being sentenced in their absence as they have absconded.  I have heard no mitigation on their behalf.

19.The offences to which the defendants have committed are very serious offences to which a deterrent sentence is appropriate.  This was a case of theft of a light goods vehicle and a prompt sale of that vehicle fraudulently by the 1st and 2nd defendants. 

20.The case to which I have reference to for sentencing of theft of vehicles is in HKSAR v Cheng Chi Wai, CACC 94/2011, and CAAR 2/2011 which is the same case.  In that case the Court of Appeal recognized that theft of vehicle is a serious offence and attracts a sentence of an immediate custodial sentence.

21.This case was, as I mentioned, well-planned in that the owner was lured away from his premises, his vehicle stolen while he was absent from his premises, the vehicle registration document which was left in the vehicle was taken from it then to be used to change the ownership by re-registering, fraudulently, D2’s name. Thereafter it was then sold on to a bona fide purchaser for value at a high cost of $175,000.  There was sophistication in relation to this theft and sale.  The defendants made a large profit much from this fraudulent sale. 

22.In respect to the appropriate term of imprisonment I have had regard to a number of cases.  I refer to paragraph 76 of Cheng Chi Wai where counsel for the applicant suggested that a sentence of 4 to 5 years is appropriate for persons involved in an organized way in providing that level of professional service.  A 5-year imprisonment starting point in Chan Ko Po Joseph CACC 29/2000 was upheld for the attempted smuggling by container of two luxury vehicles to the mainland.  In Wong Kam Tat [2002] 2 HKC 677, the Court of Appeal upheld a starting point of 4 years’ imprisonment in respect of a motor car dealer disposing of a stolen motor vehicle.

23.Given the cases cited, I consider that for this case the proper sentence after trial for the theft of a vehicle is one of 3½ years of imprisonment.  In respect of the 2nd charge of fraud, I also consider the same term to be appropriate.

24.Although these offences were linked, the selling of the vehicle was a separate and distinct offence.  In those circumstances, taking into account the principle of totality, I consider that a sentence of 6 months imprisonment should run consecutive to Charge 1 and therefore the total sentence of imprisonment for the 1st and 2nd defendants would be one of 4 years’ imprisonment to which they should be so sentenced