HKSAR v. GUO CHAOMU

DCCC 383/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 383 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to seven charges of theft. He is a mainland resident running business in Hong Kong. He shipped goods to the mainland.

Charges 1 to 5: Theft of Red Wine

2.  Cheng Mang Yip (PW1) and Cheung Wai Kei (PW2) were in the business of reselling red wine to the mainland.  PW2 engaged the defendant for delivering his cargo to purchasers in the mainland several times since 2012.

3.  In December 2016, PW2 delivered a shipment of red wine at a total value of around HK$1.4 million to a warehouse in the New Territories (the “warehouse”) rented by the defendant.  The defendant promised to deliver the wine to the mainland address to be provided by PW2.  The wines were purchased by PW1.

4.  On five occasions between 8 and 19 December 2016, without the consent and authority of PW1 and PW2, the defendant sold and delivered a total of 1,887 bottles (stolen property 1) of the wines of PW2 to one Lui Kwan Shu, Ken (PW3).  PW3 paid a total of RMB853,850 to the defendant.  The details of the delivery are particularised in Charges 1 to 5.

5.  PW2 chased up the defendant on delivery of the wine.  The defendant claimed that the mainland customs had tightened their enforcement on parallel goods and therefore there was a delay in the delivery of the wine.  Eventually, on 20 December 2016, the defendant confessed to PW2 by message that he had stolen the wine and sold it because he had lost a lot of money in gambling. He asked PW2 to report the matter to the police.

6.  PW2 later recovered 90 bottles of wine from the defendant’s warehouse and 1,440 bottles of wine from the premises of PW3. 

7.  In a cautioned video-recorded interview, the defendant confessed that he had without authority sold stolen property 1 on five occasions to Ah Fai.  He received around RMB900,000 for the five transactions and lost all of it in gambling. 

Charges 6 and 7: Theft of Facial Masks

8.  Zhou Can (PW4) traded through his company, Golden River International Trading Limited.

9.  On 16 December 2016, Beautiful House Limited delivered to the defendant’s warehouse a total of 300,000 pieces of facial masks purchased by PW4 at RMB1,795,500 (approximately HK$2 million) (stolen property 2).  The defendant agreed to deliver the masks to Shenzhen for PW4.

10.  On two occasions in December 2016, without consent and authority of PW4, the defendant sold and delivered stolen property 2 to one Li Daibin (PW5) on the mainland.  PW5 paid the defendant a total of RMB1,281,600 (approximately HK$1.37 million).

11.  On 20 December 2016, PW4 received a message from the defendant, informing him that the defendant had sold stolen property 2 in order to cover his own debts.  The police was therefore informed.

12.  On 22 December 2016, the defendant was arrested when he entered into Hong Kong via Lok Ma Chau Control Point.  Under caution, he admitted that he was guilty.

13.  In a subsequent video interview, the defendant admitted that he sold stolen property 2 to PW5 for around RMB1.2 million and he lost it all in gambling.

14.  The defendant is aged 29.  While he is not a Hong Kong resident, he has one criminal conviction which was recorded after he had committed the present offences. 

15.  Mr Leung, solicitor for the defendant, submits in mitigation that the defendant is a divorced person having custody of his two daughters aged 6 and 7 respectively who are now under the care of the defendant’s parents.  The defendant used to contribute RMB6,000 each month to his parents.  In 2012, the defendant started to rent a warehouse in Hong Kong, storing goods for delivery to the mainland for his clients.  He had shipped goods for value over HK$20 million for the two victims before the offences were committed, as a result of his heavy loss in gambling.  After he informed the two victims of his wrongdoing, he returned to Hong Kong, intending to surrender to the authorities.  On arrest, he made full confession of the offences to the police.

16.  Mr Leung, apparently accepting that the offences involved breach of trust, draws my attention to the sentencing guidelines in the cases of Cheung Mee Kiu and Ng Kwok Wing. 

Reasons for Sentence

17.  The offences in this case indeed involved a breach of trust reposed in the defendant by his clients, involving a significant value of property.  The sentencing guidelines in Cheung Mee Kiu and Ng Kwok Wing are therefore applicable in the present case.  Under the guidelines, the range of sentence for amounts of money between 3 million and 15 million is 5 to 10 years’ imprisonment.

18.  I will take into account that the seven offences were committed within a few weeks.  I will treat this series of offences a single transaction for the purpose of sentencing.  It is agreed that the total value of goods stolen by the defendant is around HK$3.15 million.  I will therefore use 5 years’ imprisonment as the overall starting point for the seven offences. 

19.  The defendant had the courage to confess to the victims of his wrongdoing and returned to Hong Kong from the mainland voluntarily.  I accept the mitigation that he returned to Hong Kong with the intention to surrender himself to the authorities which, in my judgment, demonstrates his remorse.  I therefore reduce the overall starting point to 4 years and 9 months.  The reduced overall starting point will be further reduced by one-third for his plea of guilty.  The overall sentence after reductions would be 3 years and 2 months’ imprisonment.

20.  It is admitted that the respective losses of the victims on the charges are: Charge 1, $243,000; Charge 2, $267,900; Charge 3, $174,078; Charge 4, $347,079; Charge 5, $111,000; Charge 6, $377,750; Charge 7, $1,631,561.

21.  Having given reductions for the defendant’s voluntary surrender and plea of guilty, I will impose individual imprisonment terms on the charges as follows: Charge 1, 14 months; Charge 2, 14 months; Charge 3, 10 months; Charge 4, 14 months; Charge 5, 10 months; Charge 6, 14 months; Charge 7, 26 months.  The sentences of Charge 1 to Charge 4 shall run concurrently.  8 months out of the sentence on each of Charge 5, 6 and 7 shall run consecutive to the total sentences of Charge 1 to 4.  The total term of imprisonment is 3 years and 2 months.

(Discussion re defendant’s sentence in another case)

22.  The defendant is now serving a term of imprisonment for 15 weeks for the offence of assault occasioning actual bodily harm.  Defence counsel urges me to order the sentences in the present case to run concurrently with the term that the defendant is now serving.  Having considered the issue of totality, I am of the view that the present offences are completely different from the offence of assault.  I order the sentences in the present case to run consecutively to the imprisonment term in the assault case.