HKSAR v. Ha Lung Kuen
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DCCC 899/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 899 OF 2014 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one charge of theft[1] and one charge of knowingly misleading a Police officer by giving false information[2]. Summary of facts 2.The defendant was the driver of a lights goods vehicle and he was supposed to pick up 38 boxes of mobile phones and 2 boxes of luxury wood pieces (“the goods”) that belonged to PW1 Chung Kwok Tung from a warehouse in Mai Hing Industrial Building in Kwun Tong and to deliver them to Mr. Chung’s home in Tuen Mun on 6th August 2014. 3.At around 2:09am on 6th August, the defendant picked up the goods from the said warehouse and drove away from Mai Hing Industrial Building. About 24 minutes later at 2:33am, the defendant called to tell PW2, the son of PW1, that the defendant’s light goods vehicle carrying the goods was hit by a black coloured 7-seater outside Manulife Financial Centre at no.223 Wai Yip Street in Kwun Tong, and that 4 people got out of that car and robbed the defendant of the goods. The matter was reported to the Police and the defendant falsely claimed to Police officer PC14560 that he had been robbed. 4.Later on the same day, the defendant confessed that he had made a false report regarding the robbery. The defendant was arrested and under caution alleged that it was a Chan Ka-wai who had asked the defendant to steal the goods and to pretend that the defendant had been robbed. The defendant, Chan and one Cheung Tak-wai met beforehand to discuss the execution of the theft. The defendant claimed that Chan Ka-wai had agreed to pay him $10,000 for taking part. After the defendant had picked up the goods from the warehouse, he drove to Kwun Tong Public Pier where two men (Cheung Tak-wai and Fan Ka-lok) moved the goods to another light goods vehicle. One of the men then used his black 7-seater vehicle to ram into the rear of the defendant’s light goods vehicle. 5.The value of the stolen goods totalled $600,000. Previous conviction 6.The defendant had a clear record. Mitigation 7.The defendant is 26 years old. He was born in China but came to Hong Kong when he was just 3 or 4 months old. He was educated in Hong Kong up to secondary level and then started to work as an audio technician. He started to run his own business and got loans from the bank in the amount of about $300,000. Unfortunately, his business failed and he went bankrupt. The defendant agreed to commit the offence out of desperation. 8.The defendant’s family members and friends are in court to show their support. The defendant frankly disclosed the entire event to the Police at an early stage. 9.A letter from District Councillor Mr. Or speaks to the fact that the defendant took part in voluntary work in the local community. Sentence 10.The maximum sentence for theft on conviction upon indictment is that of 10 years’ imprisonment. The maximum sentence for knowingly misleading a Police officer upon a summary conviction is a fine of $1000 and 6 months’ imprisonment. Charge 1 11.Both Mr. Charles Chan for the prosecution and Mr. Chau for the defendant are of the view that by way of a contractual agreement the defendant had been put in a position of trust with regard to PW2, who was acting under the authority of PW1 the owner of the goods, and in stealing the goods, the defendant was in breach of the trust so reposed. 12.Parties are also in agreement that the sentencing guidelines as set down in the case of HKSAR v Cheung Mee Kiu, CACC 99 of 2006 apply in our present case, and that the applicable band for the $600,000 value of the stolen goods is that of 2 to 3 years’ imprisonment. 13.Mr. Chan very fairly pointed out that given the quality and degree of trust reposed in the defendant in the present case, the court should regard the breach of trust as at the lower end of the spectrum of seriousness. Coupled with the short time that the goods was entrusted to the defendant, and the lack of impact on the public and public confidence or fellow employers or partners, I agree with Mr. Chan and find that the breach was not a serious one. 14.Both for the fact that the theft involved property worth $600,000 and 4 accomplices, and for the fact that it is a breach of trust case, I find that the appropriate sentence is that of an immediate custodial sentence. 15.I find the following aggravating factors in the commission of the theft. In addition to the defendant, there were 3 others accomplices involved. The theft, although straightforward in its execution, was premeditated and well planned, and the defendant committed the theft for a $10,000 reward. 16.In relation to the theft of the goods, I adopt a starting point of 27 months’ imprisonment. I would have adopted a starting point of 30 months’ imprisonment but for the fact that the breach of trust was not a serious one. 17.I adjust this sentence upwards by 6 months for the said aggravating factors, resulting in a sentence of 33 months’ imprisonment. 18.Personal circumstances such as the fact that the defendant committed the offence because he was bankrupt and needed the money do not amount to mitigating factors. I also find that the voluntary work that the defendant had previously undertaken pales into insignificance in light of the seriousness of the offences that he had committed. 19.As for the defendant’s clear record, I would like to refer to the following passage from HKSAR v Wong King-wai, CACC 364 of 2006:
20.I find, therefore, that there are no mitigating factors other than the defendant’s timely guilty plea. 21.Granting the defendant the full one-third discount for his guilty plea, the final sentence for charge 1 is that of 22 months’ imprisonment. Charge 2 22.The defendant misled the Police officer in order to conceal his own role in the theft of the goods, as well as the fact of the theft itself. The defendant allowed his light goods vehicle to be rammed by one of the accomplices in the theft in order to prepare for the lie that he was about to tell the Police. The defendant’s commission of this offence must be regarded as being at the more serious end of the spectrum of seriousness. 23.I find that an immediate custodial sentence is appropriate and the appropriate starting point is that of 21 weeks’ imprisonment. There are no mitigating factors other than the defendant’s guilty plea. The sentence is therefore discounted to that of 14 weeks’ imprisonment. Totality 24.In order to try to get away with the theft of the goods, the defendant made up the robbery story. I find that the two offences arose out of the same set of facts and are inter-connected. The offences can be said to have occurred in the course of a single transaction. 25.I will therefore order the sentences to run concurrently. The defendant is sentenced for the 2 offences to a total of 22 months’ imprisonment.
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