HKSAR v. IP CHUN NAM

DCCC 198/2018

[2018] HKDC 1487

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 198 OF 2018

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REASONS FOR SENTENCE

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1.  There are 3 defendants in this case. The first and second defendant pleaded guilty to 2 joint charges of “theft”, contrary to section 9 of the Theft Ordinance, Cap 210 (charges 7-8). Today, I deal with the sentence of the second defendant.

Facts

2.  “Yau Ming Engineering Company Limited” (“the Company”) had a Standard Chartered Bank (Hong Kong) Limited cheque book for the account as particularized in charge 7.  The owner of the Company would sign the cheques in advance and keep them inside a locked drawer at the office of the Company. Whilst the first defendant was working in the Company, he noticed where the cheque book of the Company was kept.  He subsequently burgled the office of the Company on 4 occasions and stole a total of 5 cheques.

3.  Enquiries with the bank revealed cheque No 925459 in the sum of HK$50,000 was presented by the second defendant on 27 October 2015 and cheque No 925458 in the sum of HK$80,000 was presented by the second defendant on 11 November 2015. 

4.  The second defendant was arrested on 12 April 2016.

5.  In subsequent video-recorded interview, the second defendant admitted that he had worked for the Company from May to June 2015 and the first defendant was his supervisor.  The first defendant had asked him to present two cheques and promised to pay him 10% commission in return.  On 27 October 2015 and 11 November 2015, the first defendant gave him a cheque in the amounts of HK$50,000 and HK$80,000 respectively.  The second defendant then presented the cheques and later handed over the money to the first defendant.  He had received a total of HK$13,000 from the first defendant and had already spent all the money received.

Mitigation

6.  The second defendant is aged 22, single and lives with his family.  He has a clear record.  Since May 2017, he has been working as a construction site worker earning about HK$10,000 per month and would contribute HK$3,000 per month for family expenses.

7.  In mitigation, it was submitted that the offences did not involve breach of trust as the second defendant had already left the Company at the time of the offences.  He committed the present offences out of greed.  Although he only received HK$13,000 as reward, he was willing to compensate the Company for the loss in the sum of HK$65,000.  At the time of the offence, the second defendant was aged 19.  It was submitted that there was delay in prosecution of the offences.  Had the proceedings been brought up earlier, the second defendant would be under 21 and the sentencing requirement in section 109A of the Criminal Procedure Ordinance, Cap 221 would apply.  Mitigating letter from the second defendant’s current employer revealed that the second defendant was hard working and his employer was willing to continue to employ him if he was not imprisoned.  The court was urged to consider Community Service Order in view of the young age, the minor role, the clear record and the stable job of the second defendant.  

Sentence

8.  Before sentencing, a suitability report for Community Service Order was called for.  The report reveals that the second defendant has good family relationship.  He has been working since he completed Secondary One in 2011. Since May 2017, he has been working for the same employer, who considers the second defendant a hardworking, responsible and honest staff.  His current employer is willing to continue to employ him if he was given the chance for open supervision.  The second defendant is remorseful and determined to reform.  With the support from his family, the second defendant is considered suitable to perform work under a Community Service Order.   

9.  As far as the two charges are concerned, I accept that there is no element of breach of trust.  Given the amount stolen, I consider the appropriate starting point for each of charges 7-8 is 6 months’ imprisonment. Given the second defendant’s plea, the sentence for each of charges 7-8 is reduced to 4 months’ imprisonment. 

10.  In mitigation, it was submitted that there was a delay in prosecution. Having considered the nature of the offences, that the facts of this case is simple, all the defendants admitted the offences upon their arrest in April 2016 and that they were only charged in February 2018, I am satisfied that there was a delay in prosecution.  In the circumstances, I am prepared to reduce each of the sentences of charges 7-8 by 1 month.

11.  Regarding restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249).  As the second defendant has the money ready to be paid into court today, he is entitled to a discount of 1.5 months from his sentence for each of the two charges.  That means the sentence for each charge is 1.5 months’ imprisonment.

12.  Apart from the above, I do not see other mitigating factor justifying further reduction of sentence. 

13.  Taking into consideration the totality principle, I would have ordered 0.5 months of the sentence for charge 8 to run consecutive to the sentence for charge 7, making a total sentence of 2 months’ imprisonment.

14.  That said, given the second defendant’s young age, his remorse, his good family support, his restitution, his clear record, his stable job and the short period of imprisonment I have in mind, I consider it more appropriate and beneficial to the second defendant’s reform to sentence him to 200 hours of Community Service Order.  I hereby sentence him to 200 hours of Community Service Order for each charge, all sentences to run concurrently. 

15.  There is a compensation order in the sum of HK$65,000 to Yau Ming Engineering Company Limited, to be paid into court today.