HKSAR v. SHUM KIN HOI

DCCC572/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 572 OF 2010

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to two charges of theft, being Charges 6 and 7, each contrary to section 9 of the Theft Ordinance, Cap.210, and guilty to one offence of evasion of liability by deception, contrary to section 18B(1)(b) of the same ordinance.

2.  You admitted the brief facts and I convicted you.

3.  You denied five charges of theft.  I ordered those to remain on the file and not to be proceeded with without leave of this court or the Court of Appeal.

4.  Briefly, the facts are as follows.

5.  PW1 and PW2 were respectively the daughter and wife of the proprietor of Chi Shing Trading Company, a wholesale and retail company of dried seafood.  Regular business customers were given an extended payment period. 

6.  PW3 met you in 2004.  About November 2005, you set up a company together, Tak Hing, which dealt in dried seafood and Chinese medicines.  You each held 50 per cent of the shares.  You were in charge of daily operations; payments were made by cheque, both of you had to sign, and a chop was attached.

7.  In 2006, Tak Hing commenced doing business with Chi Shing.  Chi Shing allowed Tak Hing one month to settle payments.

8.  In April 2007, you claimed to be running your own business in the Mainland and offered to deal personally with Chi Shing.  As Tak Hing had settled all payments promptly in the past, Chi Shing allowed you a payment period of one month also.

9.  From 13 to 27 April 2007, you placed five orders for bird’s nest products valued at $157,100.

Charge 6

10.  On 8 May 2007, you obtained from Chi Shing, purportedly on behalf of Tak Hing, four catties of bird’s nest products and 10 boxes of nests worth $72,800.

Charge 7

11.  On 23 May 2007, you similarly obtained 17 boxes of bird’s nests worth $100,800.

Charge 8

12.  On 23 May 2007, Chi Shing delivered the goods in relation to Charge 7 to Tak Hing.  You signed for them and gave Chi Shing a personal cheque for $157,100 for the goods obtained between 13 and 27 April 2007.  The cheque was post-dated to 10 June 2007, drawn on your personal account at the Bank of Communications.

13.  The cheque was dishonoured and you could not be contacted.  Four times the cheque was represented but was returned because of insufficient funds on each occasion.

14.  PW1 contacted the police.

15.  Bank records show that your account was opened in may 2007 with an opening balance of $1,000.  No other money was ever deposited.

16.  On 16 March 2008, you were arrested at Lo Wu. Under caution, you admitted obtaining the bird’s nests from Chi Shing and selling them in the Mainland.  You knew you had insufficient funds to pay when you issued the cheque.

17.  You admitted to four previous convictions on three different occasions.  None were similar, all resulted in fines.

18.  I adjourned the case for a probation officer’s background report, which is now before me.  I have read that report and I take its contents fully into consideration when imposing a sentence.  I understand there is nothing in that report with which you disagree.

19.  Mr Kan on your behalf entered mitigation and produced a letter from you.  Dealing first with the letter, you express your remorse and promise to repay the $330,000 by instalments.  Also, I understand you have written to the victim to apologise.

20.  Quite rightly, Mr Kan points out that you have no similar convictions, you have pleaded guilty, and you are remorseful.  He points out that there is no question in this case of any breach of trust.  He suggests a starting point of 18 months to 2 years.

21.  I turn now to the sentence.

22.  Defendant, these are serious offences involving over $300,000.  Goods were obtained from the victim.  I fully accept there is no formal breach of trust but the goods were obtained partly on a basis of the trust established between you and the company you had established.  I do note that you have apologised to the victim and you have a fairly light criminal record.

23.  I also note that you promise to repay the money taken by instalments, but this seems to me to be based more on optimism than realism.  However, it would do you credit if you can repay that money.

24.  The offences were deliberate.  You took advantage of the trusting nature of the victim and that victim has suffered loss.  As things stand at the moment, it seems unlikely to me that that loss will ever be made good, though it is to your credit that you promise to try.

25.  I also note from the time of your arrest you were entirely co-operative with the authorities and that you have carried that through by your plea of guilty.

26.  There are three offences but it seems to me that this is one course of conduct and the correct sentencing approach is to treat it as such.

27.  Taking into account all the factors I have mentioned, I take as an overall starting point 27 months’ imprisonment.  You are entitled to receive one-third discount.  That reduces it to 18 months.

28.  You will therefore go to prison for 18 months on each of the three offences, concurrent.

29.  Finally, I thank Mr Omar and Mr Kan for their assistance.