A A
B DCCC 899/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 899 OF 2014
E E
-----------------------------------
F HKSAR F
v.
G G
HA LUNG KUEN
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 6th January 2015 at 10:39 am I
Present: Mr. Charles Chan, Counsel on fiat, for HKSAR
J J
Mr. Chau Hing Pang, instructed by M/s L & L Lawyers,
K K
assigned by DLA, for the Defendant
L
Offences: [1] Theft (盜竊罪) L
[2] Knowingly misleading a police officer by giving false
M M
information (明知地提供虛假資料以誤導警務人員)
N ---------------------------- N
Reasons for Sentence
O O
----------------------------
P 1. The defendant pleaded guilty to one charge of theft1 and one P
charge of knowingly misleading a Police officer by giving false
Q Q
2
information .
R R
Summary of facts
S S
T T
1
Contrary to s.9 of the Theft Ordinance, Cap.210
2
Contrary to s.64(b) of the Police Force Ordinance, Cap.232
U U
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- 2 -
A A
B 2. The defendant was the driver of a lights goods vehicle and he B
was supposed to pick up 38 boxes of mobile phones and 2 boxes of luxury
C C
wood pieces (“the goods”) that belonged to PW1 Chung Kwok Tung from
D a warehouse in Mai Hing Industrial Building in Kwun Tong and to deliver D
them to Mr. Chung’s home in Tuen Mun on 6th August 2014.
E E
F 3. At around 2:09am on 6th August, the defendant picked up the F
goods from the said warehouse and drove away from Mai Hing Industrial
G G
Building. About 24 minutes later at 2:33am, the defendant called to tell
H PW2, the son of PW1, that the defendant’s light goods vehicle carrying the H
goods was hit by a black coloured 7-seater outside Manulife Financial
I I
Centre at no.223 Wai Yip Street in Kwun Tong, and that 4 people got out
J of that car and robbed the defendant of the goods. The matter was reported J
to the Police and the defendant falsely claimed to Police officer PC14560
K K
that he had been robbed.
L L
M
4. Later on the same day, the defendant confessed that he had M
made a false report regarding the robbery. The defendant was arrested and
N N
under caution alleged that it was a Chan Ka-wai who had asked the
O defendant to steal the goods and to pretend that the defendant had been O
robbed. The defendant, Chan and one Cheung Tak-wai met beforehand to
P P
discuss the execution of the theft. The defendant claimed that Chan Ka-wai
Q had agreed to pay him $10,000 for taking part. After the defendant had Q
picked up the goods from the warehouse, he drove to Kwun Tong Public
R R
Pier where two men (Cheung Tak-wai and Fan Ka-lok) moved the goods to
S another light goods vehicle. One of the men then used his black 7-seater S
vehicle to ram into the rear of the defendant’s light goods vehicle.
T T
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- 3 -
A A
B 5. The value of the stolen goods totalled $600,000. B
C C
Previous conviction
D D
6. The defendant had a clear record.
E E
F Mitigation F
G G
7. The defendant is 26 years old. He was born in China but came
H to Hong Kong when he was just 3 or 4 months old. He was educated in H
Hong Kong up to secondary level and then started to work as an audio
I I
technician. He started to run his own business and got loans from the bank
J in the amount of about $300,000. Unfortunately, his business failed and he J
went bankrupt. The defendant agreed to commit the offence out of
K K
desperation.
L L
M
8. The defendant’s family members and friends are in court to M
show their support. The defendant frankly disclosed the entire event to the
N N
Police at an early stage.
O O
9. A letter from District Councillor Mr. Or speaks to the fact that
P P
the defendant took part in voluntary work in the local community.
Q Q
Sentence
R R
S 10. The maximum sentence for theft on conviction upon S
indictment is that of 10 years’ imprisonment. The maximum sentence for
T T
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V V
- 4 -
A A
B knowingly misleading a Police officer upon a summary conviction is a fine B
of $1000 and 6 months’ imprisonment.
C C
D Charge 1 D
E E
11. Both Mr. Charles Chan for the prosecution and Mr. Chau for
F the defendant are of the view that by way of a contractual agreement the F
defendant had been put in a position of trust with regard to PW2, who was
G G
acting under the authority of PW1 the owner of the goods, and in stealing
H the goods, the defendant was in breach of the trust so reposed. H
I I
12. Parties are also in agreement that the sentencing guidelines as
J set down in the case of HKSAR v Cheung Mee Kiu, CACC 99 of 2006 J
apply in our present case, and that the applicable band for the $600,000
K K
value of the stolen goods is that of 2 to 3 years’ imprisonment.
L L
M
13. Mr. Chan very fairly pointed out that given the quality and M
degree of trust reposed in the defendant in the present case, the court
N N
should regard the breach of trust as at the lower end of the spectrum of
O seriousness. Coupled with the short time that the goods was entrusted to O
the defendant, and the lack of impact on the public and public confidence
P P
or fellow employers or partners, I agree with Mr. Chan and find that the
Q breach was not a serious one. Q
R R
14. Both for the fact that the theft involved property worth
S $600,000 and 4 accomplices, and for the fact that it is a breach of trust case, S
I find that the appropriate sentence is that of an immediate custodial
T T
sentence.
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- 5 -
A A
B B
15. I find the following aggravating factors in the commission of
C C
the theft. In addition to the defendant, there were 3 others accomplices
D involved. The theft, although straightforward in its execution, was D
premeditated and well planned, and the defendant committed the theft for a
E E
$10,000 reward.
F F
16. In relation to the theft of the goods, I adopt a starting point of
G G
27 months’ imprisonment. I would have adopted a starting point of 30
H months’ imprisonment but for the fact that the breach of trust was not a H
serious one.
I I
J 17. I adjust this sentence upwards by 6 months for the said J
aggravating factors, resulting in a sentence of 33 months’ imprisonment.
K K
L L
18. Personal circumstances such as the fact that the defendant
M
committed the offence because he was bankrupt and needed the money do M
not amount to mitigating factors. I also find that the voluntary work that the
N N
defendant had previously undertaken pales into insignificance in light of
O the seriousness of the offences that he had committed. O
P P
19. As for the defendant’s clear record, I would like to refer to the
Q following passage from HKSAR v Wong King-wai, CACC 364 of 2006: Q
R R
“35. Personal circumstances including a clear record may, of
S course, have a bearing on mitigation for offences which are S
comparatively minor in nature. However, for serious offences we
T T
have indicated time and again that, with the introduction of the
U U
CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V
- 6 -
A A
B ‘one-third rule’ which in usual circumstances provides a discount of B
a third of the prison sentence that would normally have been
C C
imposed after trial following timely pleas of guilty, there should be
D no further discount for a clear record unless evidence of positive D
good character is forthcoming.”
E E
F 20. I find, therefore, that there are no mitigating factors other than F
the defendant’s timely guilty plea.
G G
H 21. Granting the defendant the full one-third discount for his H
guilty plea, the final sentence for charge 1 is that of 22 months’
I I
imprisonment.
J J
Charge 2
K K
L L
22. The defendant misled the Police officer in order to conceal his
M
own role in the theft of the goods, as well as the fact of the theft itself. The M
defendant allowed his light goods vehicle to be rammed by one of the
N N
accomplices in the theft in order to prepare for the lie that he was about to
O tell the Police. The defendant’s commission of this offence must be O
regarded as being at the more serious end of the spectrum of seriousness.
P P
Q 23. I find that an immediate custodial sentence is appropriate and Q
the appropriate starting point is that of 21 weeks’ imprisonment. There are
R R
no mitigating factors other than the defendant’s guilty plea. The sentence is
S therefore discounted to that of 14 weeks’ imprisonment. S
T T
Totality
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V V
- 7 -
A A
B B
24. In order to try to get away with the theft of the goods, the
C C
defendant made up the robbery story. I find that the two offences arose out
D of the same set of facts and are inter-connected. The offences can be said to D
have occurred in the course of a single transaction.
E E
F 25. I will therefore order the sentences to run concurrently. The F
defendant is sentenced for the 2 offences to a total of 22 months’
G G
imprisonment.
H H
I I
J (Douglas T.H. Yau) J
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V
A A
B DCCC 899/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 899 OF 2014
E E
-----------------------------------
F HKSAR F
v.
G G
HA LUNG KUEN
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 6th January 2015 at 10:39 am I
Present: Mr. Charles Chan, Counsel on fiat, for HKSAR
J J
Mr. Chau Hing Pang, instructed by M/s L & L Lawyers,
K K
assigned by DLA, for the Defendant
L
Offences: [1] Theft (盜竊罪) L
[2] Knowingly misleading a police officer by giving false
M M
information (明知地提供虛假資料以誤導警務人員)
N ---------------------------- N
Reasons for Sentence
O O
----------------------------
P 1. The defendant pleaded guilty to one charge of theft1 and one P
charge of knowingly misleading a Police officer by giving false
Q Q
2
information .
R R
Summary of facts
S S
T T
1
Contrary to s.9 of the Theft Ordinance, Cap.210
2
Contrary to s.64(b) of the Police Force Ordinance, Cap.232
U U
CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V
- 2 -
A A
B 2. The defendant was the driver of a lights goods vehicle and he B
was supposed to pick up 38 boxes of mobile phones and 2 boxes of luxury
C C
wood pieces (“the goods”) that belonged to PW1 Chung Kwok Tung from
D a warehouse in Mai Hing Industrial Building in Kwun Tong and to deliver D
them to Mr. Chung’s home in Tuen Mun on 6th August 2014.
E E
F 3. At around 2:09am on 6th August, the defendant picked up the F
goods from the said warehouse and drove away from Mai Hing Industrial
G G
Building. About 24 minutes later at 2:33am, the defendant called to tell
H PW2, the son of PW1, that the defendant’s light goods vehicle carrying the H
goods was hit by a black coloured 7-seater outside Manulife Financial
I I
Centre at no.223 Wai Yip Street in Kwun Tong, and that 4 people got out
J of that car and robbed the defendant of the goods. The matter was reported J
to the Police and the defendant falsely claimed to Police officer PC14560
K K
that he had been robbed.
L L
M
4. Later on the same day, the defendant confessed that he had M
made a false report regarding the robbery. The defendant was arrested and
N N
under caution alleged that it was a Chan Ka-wai who had asked the
O defendant to steal the goods and to pretend that the defendant had been O
robbed. The defendant, Chan and one Cheung Tak-wai met beforehand to
P P
discuss the execution of the theft. The defendant claimed that Chan Ka-wai
Q had agreed to pay him $10,000 for taking part. After the defendant had Q
picked up the goods from the warehouse, he drove to Kwun Tong Public
R R
Pier where two men (Cheung Tak-wai and Fan Ka-lok) moved the goods to
S another light goods vehicle. One of the men then used his black 7-seater S
vehicle to ram into the rear of the defendant’s light goods vehicle.
T T
U U
CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V
- 3 -
A A
B 5. The value of the stolen goods totalled $600,000. B
C C
Previous conviction
D D
6. The defendant had a clear record.
E E
F Mitigation F
G G
7. The defendant is 26 years old. He was born in China but came
H to Hong Kong when he was just 3 or 4 months old. He was educated in H
Hong Kong up to secondary level and then started to work as an audio
I I
technician. He started to run his own business and got loans from the bank
J in the amount of about $300,000. Unfortunately, his business failed and he J
went bankrupt. The defendant agreed to commit the offence out of
K K
desperation.
L L
M
8. The defendant’s family members and friends are in court to M
show their support. The defendant frankly disclosed the entire event to the
N N
Police at an early stage.
O O
9. A letter from District Councillor Mr. Or speaks to the fact that
P P
the defendant took part in voluntary work in the local community.
Q Q
Sentence
R R
S 10. The maximum sentence for theft on conviction upon S
indictment is that of 10 years’ imprisonment. The maximum sentence for
T T
U U
CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V
- 4 -
A A
B knowingly misleading a Police officer upon a summary conviction is a fine B
of $1000 and 6 months’ imprisonment.
C C
D Charge 1 D
E E
11. Both Mr. Charles Chan for the prosecution and Mr. Chau for
F the defendant are of the view that by way of a contractual agreement the F
defendant had been put in a position of trust with regard to PW2, who was
G G
acting under the authority of PW1 the owner of the goods, and in stealing
H the goods, the defendant was in breach of the trust so reposed. H
I I
12. Parties are also in agreement that the sentencing guidelines as
J set down in the case of HKSAR v Cheung Mee Kiu, CACC 99 of 2006 J
apply in our present case, and that the applicable band for the $600,000
K K
value of the stolen goods is that of 2 to 3 years’ imprisonment.
L L
M
13. Mr. Chan very fairly pointed out that given the quality and M
degree of trust reposed in the defendant in the present case, the court
N N
should regard the breach of trust as at the lower end of the spectrum of
O seriousness. Coupled with the short time that the goods was entrusted to O
the defendant, and the lack of impact on the public and public confidence
P P
or fellow employers or partners, I agree with Mr. Chan and find that the
Q breach was not a serious one. Q
R R
14. Both for the fact that the theft involved property worth
S $600,000 and 4 accomplices, and for the fact that it is a breach of trust case, S
I find that the appropriate sentence is that of an immediate custodial
T T
sentence.
U U
CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V
- 5 -
A A
B B
15. I find the following aggravating factors in the commission of
C C
the theft. In addition to the defendant, there were 3 others accomplices
D involved. The theft, although straightforward in its execution, was D
premeditated and well planned, and the defendant committed the theft for a
E E
$10,000 reward.
F F
16. In relation to the theft of the goods, I adopt a starting point of
G G
27 months’ imprisonment. I would have adopted a starting point of 30
H months’ imprisonment but for the fact that the breach of trust was not a H
serious one.
I I
J 17. I adjust this sentence upwards by 6 months for the said J
aggravating factors, resulting in a sentence of 33 months’ imprisonment.
K K
L L
18. Personal circumstances such as the fact that the defendant
M
committed the offence because he was bankrupt and needed the money do M
not amount to mitigating factors. I also find that the voluntary work that the
N N
defendant had previously undertaken pales into insignificance in light of
O the seriousness of the offences that he had committed. O
P P
19. As for the defendant’s clear record, I would like to refer to the
Q following passage from HKSAR v Wong King-wai, CACC 364 of 2006: Q
R R
“35. Personal circumstances including a clear record may, of
S course, have a bearing on mitigation for offences which are S
comparatively minor in nature. However, for serious offences we
T T
have indicated time and again that, with the introduction of the
U U
CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V
- 6 -
A A
B ‘one-third rule’ which in usual circumstances provides a discount of B
a third of the prison sentence that would normally have been
C C
imposed after trial following timely pleas of guilty, there should be
D no further discount for a clear record unless evidence of positive D
good character is forthcoming.”
E E
F 20. I find, therefore, that there are no mitigating factors other than F
the defendant’s timely guilty plea.
G G
H 21. Granting the defendant the full one-third discount for his H
guilty plea, the final sentence for charge 1 is that of 22 months’
I I
imprisonment.
J J
Charge 2
K K
L L
22. The defendant misled the Police officer in order to conceal his
M
own role in the theft of the goods, as well as the fact of the theft itself. The M
defendant allowed his light goods vehicle to be rammed by one of the
N N
accomplices in the theft in order to prepare for the lie that he was about to
O tell the Police. The defendant’s commission of this offence must be O
regarded as being at the more serious end of the spectrum of seriousness.
P P
Q 23. I find that an immediate custodial sentence is appropriate and Q
the appropriate starting point is that of 21 weeks’ imprisonment. There are
R R
no mitigating factors other than the defendant’s guilty plea. The sentence is
S therefore discounted to that of 14 weeks’ imprisonment. S
T T
Totality
U U
CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V
- 7 -
A A
B B
24. In order to try to get away with the theft of the goods, the
C C
defendant made up the robbery story. I find that the two offences arose out
D of the same set of facts and are inter-connected. The offences can be said to D
have occurred in the course of a single transaction.
E E
F 25. I will therefore order the sentences to run concurrently. The F
defendant is sentenced for the 2 offences to a total of 22 months’
G G
imprisonment.
H H
I I
J (Douglas T.H. Yau) J
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT21/6.1.2015 DCCC899/2014/Reasons for Sentence
V V