HKSAR v. NG KWOK KEI

HCMA 181/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 181 OF 2013

(ON APPEAL FROM ESCC 356 OF 2013)

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J U D G M E N T

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1. The Appellant was charged with one charge of theft and had pleaded guilty in the Magistrate’s court.

2. The facts of the case revealed that the Appellant stole some cameras and lens from his employer when the employer was away and those cameras and lens had a value of about HK$245,142.  The items were subsequently recovered from a pawn shop at which the Appellant had pawned the items and had only received HK$50,000 for all the items.  The Appellant was aged 29 years and had a previous conviction for a similar offence.  That was in 2012 when he was sentenced to three months’ imprisonment on each count of theft, when he faced two counts of theft and he was ordered to serve 3 months’ on each count of theft concurrently.

3. The present offence was committed within months of his release from prison.  It was urged in mitigation by Counsel on his behalf that the Appellant committed the present offence because he owed debts to a loan shark. The Learned Magistrate was correct in identifying that this theft was serious because it involved a breach of trust.  This kind of offence would undermine Hong Kong’s reputation as a city of commerce and in this case there was no restitution to the victim and it was not likely that any repayment to the victim was forthcoming, so the Learned Magistrate took the starting point of 2 years imprisonment and discounting it for a plea of guilty, sentenced the Appellant to 16 months’ imprisonment.

4. The Appellant appeared in person, on his appeal, and has urged the court to consider that the only gain he made was HK$50,000 and that the equipment were “used” equipment although they were valued at HK$245,142 when acquired, therefore his sentence was manifestly excessive.

5. It is a fact that the very nature of the crime is serious because of the breach of trust aspect.  It is often easy for employees to steal from employers and therefore deterrent sentences are necessary.  The sentencing guideline in the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 776 had said that theft from employees involving HK$250,00 or less would attract a sentence of less than 2 years’ imprisonment.  The fact that the Appellant had committed a similar offence after serving sentences for theft is a factor that The Learned Magistrate had taken into account when considering sentence.

6. The only mitigating factor in the case is the fact that the Appellant had pleaded guilty.  I see no ground to interfere with the sentence of the Learned Magistrate, so the appeal is dismissed.