HKSAR v. FOK HO TING

DCCC 420/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 420 OF 2014

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Reasons for Sentence

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1.  You have pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  The particulars are that you between the dates of 24 March to 25 March 2013, with Chau Chun-yu, Au Chak-ming and Choi Chun-po, stole 700 smartphones.

3.  I say from the outset, this is a breach of trust case. 

The items stolen, 700 smartphones, were valued at approximately HK$2.3 million.

4.  The facts are that these 700 phones were part of a consignment that were destined for the USA market.  They were to be exported by airfreight.

6.  The defendant is one of four accomplices.  The other three were jointly charged and dealt with in DCCC693/2013.  After plea, all were sentenced to 2 years and 10 months’ imprisonment.  The defendant, you, left Hong Kong before you were arrested.

7.  It is agreed that the four of you planned this theft.  You and two others worked in the warehouse where the phones were delivered prior to their export.  700 phones were actually part of a 12,000-piece consignment.  The consignment was delivered to the warehouse in the afternoon of 24 March.  They were stored overnight in this warehouse and flown out the next day at about 5 pm to the USA.  Upon receipt of the phones, it was discovered that a total of 700 pieces were missing and replaced with bags containing metal powder. 

8.  Once they were reported stolen, the CCTV footage around the warehouse was immediately checked.  It was seen on the CCTV that a pallet of phones was taken from the warehouse and driven away.  They were returned one hour later and put back in their original place.  It was during this time that the phones were stolen and items containing metal powder replaced the phones.

9.  According to the company records, the defendant and another Chau were on duty during the afternoon of 24 March.  The other three accomplices were arrested between 17 and 26 April.  Upon arrest, they made full confessions.

10.  Obviously, when the defendant heard of their arrest, he left Hong Kong and remained in mainland China until he returned on 31 March this year.  He told the police that in fact the 700 phones had been sold, the proceeds of the crime split between the four and he lived off his share until he returned to Hong Kong.  When he attempted to return to Hong Kong, he was arrested.

11.  Subsequently, he made a full admission to the police.  He told the police the four of them planned the theft meticulously. All had different responsibilities and the defendant’s responsibility was for replacing the genuine goods with sandbags-filled fake goods.  This was to make sure no one discovered the theft until the goods were abroad. 

12.  Paragraph 9 of the Statement of Facts give full details of the defendant’s confession.  I do not intend to repeat them, but he does describe the role played by each of the four accomplices.  What transpires from his confession and the confession of others is that all four are equally culpable; a truly joint enterprise.

13.  The defendant told the police that the 700 phones were sold for $1.3 million and it was split equally between the four of them.  There has been no restitution in this case.  The loss suffered by Samsung is significant. 

14.  I have had sight of the Reasons for Sentence for the other three accomplices.  As it is a breach of trust case, the guidelines of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 770 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 were followed.  The Court of Appeal were of the view that where the loss was between 1 to 3 million dollars, a starting point of between 3 to 5 years would be appropriate.  That guideline was followed by my learned brother and will be followed by myself. 

15.  You, defendant, had, like the other three accomplices, a clear record before committing this offence.  You were all of similar ages, early 20s, and you all expressed remorse for committing this offence.  Now, you have written a letter today expressing your remorse and promising to turn over a new leaf.  And I hope you will keep your promise.

16.  Your father is here today in court.  He has also written a letter of mitigation.  It shows he still supports you. 

17.  Defendant, please stand up.  Having taken the guidelines into account as well as the facts, mitigation put forward and your plea, I will take a starting point of 4 years and 3 months.

18.  Because you have pleaded guilty, you are entitled to a discount of one-third.  After that discount, I sentence you to 2 years and 10 months’ imprisonment for this offence.  Do you understand that?

DEFENDANT: Understood.