HKSAR v. CHENG XIANGRONGAND ANOTHER

[English Translation – 英譯本]
CACC 42/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 42 OF 2016

(ON APPEAL FROM DCCC NO. 838 OF 2015)

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the reasons of judgment of the Court):

Introduction

1.  The two appellants (Cheng Xiangrong, Zhou Lingyun) were sentenced to 3 years’ imprisonment after they pleaded guilty to one charge of attempted theft before HH Judge WK Kwok (“the trial judge”) in the District Court.  The trial judge adopted 4½ years as the starting point.  As the appellants pleaded guilty, the sentence was reduced by one third to 3 years.

2.  Aggrieved with the sentence, the appellants applied for leave to appeal against sentence. On 8 June 2016, a single Justice of Appeal granted leave for their applications. We are now dealing with their appeals against sentence.

3.  After the hearing, we allowed the two appellants’ appeals and reduced their sentences from 3 years to 32 months.  The following are the reasons for judgment of the Court.

Facts of the case

4.  The crime took place at the Hong Kong Convention and Exhibition Centre (HKCEC) where the Hong Kong Jewellery and Gem Fair was being held at the time.

5.  The two appellants registered as trade visitors with passports and business cards, thereby obtaining admission badges for the fair at the HKCEC.  When the two appellants were visiting a booth, they asked the staff to show them some diamonds.  While inspecting a 3.02 carat diamond valued at US$130,000, Cheng Xiangrong used a price list to obstruct the view of the staff whereas Zhou Lingyun tried to substitute a fake diamond for the said diamond worth US$130,000.

6.  When the crime of the two appellants was uncovered by the staff, Zhou Lingyun snatched back the fake diamond and put the said US$130,000 worth diamond back on the table. Nevertheless, the crime was exposed and the police were involved.  After a report was made, the police arrived at the scene and arrested the two appellants. The police found two fake diamonds on the chair between the two appellants and on the floor behind Cheng Xiangrong.  The police searched the two appellants and found on Cheng Xiangrong an admission badge registered in the name of “Ng Tiu Chen” (transliteration) and on Zhou Lingyun an admission badge registered in the name of “Wong Lai” (transliteration).  Both Ng Tiu Chen and Wong Lai are mainland residents.  After they obtained the admission badges by dishonest means, they handed them over to others to use in return for RMB 600.

7.  The results of a police investigation showed that the two appellants came to Hong Kong at around 3:30 pm on 24 June 2015, namely one day before the crime took place.

Sentence

8.  This is a crime of extreme gravity.  The two appellants came together to Hong Kong to commit a crime in which they targeted a large-scale jewellery show booth in an attempt to steal a diamond valued at US$130,000.

9.  Apart from the value of the diamond involved and the modus operandi, the present case is serious in that the appellants, acting in concert, came specifically to Hong Kong to commit a crime which is organised and pre-planned.

10.  The crime the appellants committed is not only serious but also prevalent, so that a heavy sentence is required to have a deterrent effect.  However, it is necessary for the Court to consider the appropriateness of their sentences.

11.  We have dealt with sentences of similar cases before including the one referred to by the trial judge HKSAR v Tu Xuzhi DCCC1102/2013.  We are of the view that the sentence faced by the two appellants is excessive in comparison with other similar cases.

12.  In HKSAR v Padilla Gerardo Gonzaga & Others CACC275/2011, five visitors coming from the Philippines stole a diamond worth about HK$250,000 when they were attending a jewellery show at the HKCEC.  The Court of Appeal considered the appropriate starting point was 3 years’ imprisonment.

13.  In HKSAR v Tsogbadrakh Otgon CACC393/2013, 5 Mongolian   visitors came to Hong Kong to commit a crime.  They stole diamonds worth about US$20,000 when they were attending a jewellery show.  The Court of Appeal confirmed a starting point of 4 years.

14.  In many other similar theft cases, a number of District Court Judges adopted a starting point of about 3 years 6 months to 4 years (see HKSAR v Yang Hao DCCC837/2015, HKSAR v Lau Siu Ping (transliteration) DCCC965/2014, HKSAR v Chau Man Hei (transliteration) DCCC631/2012, HKSAR v Yeung Man Hung (transliteration) and another DCCC955/2014).

15.  In HKSAR v Tang Guozhen and Liu Guiluan DCCC364/2015, both defendants were mainlanders who came to Hong Kong together to attend a jewellery show at the HKCEC.  They brought along a fake diamond in an attempt to substitute it for a genuine one worth about HK$980,000 in order to steal the same.

16.  The trial judge considered a starting point of 4 years was not excessive.  However, taking into account the stolen diamond was recovered and the victim did not suffer any loss, the two defendants were sentenced to 3½ years’ imprisonment.

17.  In Yeung Man Hung, the two defendants brought along three fake diamonds and attempted to substitute one for a 3.04 carat diamond valued at US$176,000 at a jewellery show.  The trial judge adopted 3 years and 9 months as the starting point. However, as the case did not involve any cross-border criminal activities and the victim did not suffer any loss, the starting point was adjusted to 3 years and 6 months.

18.  There are striking similarities in the facts between the present case and the above-mentioned Tang Guozhen and Liu Guiluan and Yeung Man Hung.  Both cases involved two mainlanders coming to Hong Kong to commit a crime.  They also planned to steal a diamond in the value of about one million Hong Kong dollars at a jewellery show.  As their criminal activities were uncovered, the victim had suffered no loss. However, we should point out that in Yeung Man Hung, the trial judge, in accordance with the prosecution’s stance, had ruled that the case did not involve any cross-border criminal activities.

19.  The trial judge adopted 4½ years as the starting point which was higher in comparison with the above-mentioned Tang Guozhen and Liu Guiluan and Yeung Man Hung.

20.  The trial judge took the view that the crime committed by the two appellants was more serious in comparison with Gonzaga and Otgon.  However, despite the diamond the two appellants attempted to steal having a higher value, we do not agree the crime committed by the two appellants is more serious in comparison with Gonzaga and Otgon.

21.  All three cases involved visitors coming deliberately to Hong Kong to steal valuable property at jewellery shows.  Their crimes were certainly pre-planned and also involved elements such as cross-border criminal activities and several persons acting in concert.

22.  The trial judge stressed that the two appellants obtained two admission badges of the fair before they came to Hong Kong, which showed their intent to steal and there were accomplices helping to get the admission badges for them.

23.  However, in Gonzaga and Otgon, both cases involved visitors coming deliberately to Hong Kong to commit offences which were pre-planned involving elements of cross-border criminal activities.  Moreover, in Gonzaga and Otgon, there were five defendants acting in concert and the number of criminals involved was more in comparison with the present case.

24.  Furthermore, as the stolen items in those two cases were not recovered, the victims suffered substantial economic losses, whereas the victim in the present case did not suffer any loss.

25.  Mr Leung Man Liang Matthew, Senior Public Prosecutor for the respondent, stressed that the diamond involved was worth US$130,000.  He agreed that the starting point of 4½ years adopted by the trial judge was on the high side, but it was not manifestly excessive and therefore we should not interfere.

26.  The value of the diamond involved is certainly a factor to be considered when it comes to sentencing.  If a defendant steals specifically diamonds of considerable value and asks the staff to show him diamonds of very high value with intent to steal the same, it is certainly an aggravating factor.  However, on many occasions, in other similar cases, the value of the diamonds the defendants intended to steal were only picked incidentally or randomly.  In the present case, there is no sufficient evidence to suggest that the two appellants were targeting those diamonds of extremely high value.  The facts of the case showed that they just randomly asked the staff to show them three diamonds with intent to stealone of them when inspecting the same.

27.  The trial judge pointed out in Tu Xuzhi, the criminal also stole a diamond valued at US$124,000 at a jewellery show, and the court adopted 4½ years as a starting point.

28.  Even though the above starting point of 4½ years was appropriate, the trial judge had overlooked the fact that the US$124,000 worth diamond was not recovered.

29.  Although the sentence for attempted theft may not necessarily be lighter than that of a completed offence of theft, for offences of stealing, whether there is economic loss and the extent of economic loss suffered by the victims are certainly factors to be considered at the time of sentencing.  In the above case of Yeung Man Hung, the trial judge also took the view that the victim suffered no loss of property was a mitigating factor favourable to the defendant.

30.  In the present case, we should not overlook the fact that there is no evidence to suggest the two appellants were targeting a diamond of considerable value, nor can we overlook the fact that the appellants’ attempt to steal the diamond was not successful, thereby causing no economic loss to the victim.

31.  Having regard to the overall circumstances of the case, we are of the view that the starting point of 4½ years adopted by the trial judge was manifestly excessive. We consider a starting point of 4 years sufficiently reflects the gravity of the offence committed by the two appellants.  In fact, in respect of theft, if the amount involved is around one to three million dollars, even if a breach of trust is involved, the starting point is only 3 to 4 years’ imprisonment (see HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776).  The 4 years starting point adopted by this Court has already reflected the gravity of this particularly serious offence of stealing jewels at a jewellery show.

32.  In our view, for similar cases, a starting point of four years sufficiently reflects the gravity of this type of offences unless there are special aggravating factors, such as the defendant targets some particularly or extremely valuable property; the victim suffers substantial economic loss; the theft involves very large-scale criminal activities with highly elaborate planning.  For the convenience of the sentencing judge, the prosecution should, according to the circumstances, submit as much evidence related to the above factors as possible for the court’s consideration.

33.  The two appellants pleaded guilty to the charge.  Therefore, they are entitled to a discount of one third.  The proper sentence for them should be 32 months.  Accordingly, we allow their appeal and reduce their sentences from 3 years to 32 months.