COURT: Yes, stand up, Defendant. The defendant, Chan Ho-wai, pleaded guilty to a total of seven counts of theft, contrary to section 9 of the Theft Ordinance, Chapter 210.
The Admitted Facts
The defendant, who was a diamond dealer, obtained from seven diamond suppliers numerous pieces of jewellery for sale on consignment between 20 April 2011 and 7 October 2011. The defendant did not pay the suppliers for the jewellery pieces nor did he return them to the suppliers. He later pawned many of the pieces to raise money for his own use. He was unable to settle the payment and was arrested on 24 October 2011. Subsequently, 75 pieces of jewellery valued at $5,830,440.80 were recovered from eight different pawnshops.
The date of offence, number of jewellery items and their value taken from the seven victim companies are as follows:
1st Count
Between 20 April and 10 August 2011, 11 diamond bangles, 42 diamond rings, value: 942,529.40.
2nd Count
Between 27 April and 11 August 2011, one diamond ring and one sapphire ring: $361,488.40.
3rd Count
Between 30 April and 14 September 2011, 11 diamonds and one batch of loose diamonds: $2,177,546.
4th Count
Between 15 June and 12 September 2011, 8 diamond bracelets, 15 diamond necklaces, 5 diamond pendants, 4 pendants, 1 ring and 7 diamond rings: $1,200,735.
5th Count
Between 19 August and 16 September, one diamond valued at 279,848.40.
6th Count
Between 31 August and 8 September 2011, two batches of diamonds: $549,736.
7th Count
Between 26 September and 7 October 2011, eight diamonds: $1,304,600.
The total amount of all seven counts amounts to $6,816,483.20.
Under caution after his arrest, the defendant made full admission to the offences. He admitted he received the items specified in the charges upon his undertaking to return or pay for them. He was in financial difficulties, so he had pawned some of the items at different pawnshops to raise money.
The Background and Mitigation
The defendant was born in January 1969, so he is now 44 years of age. He has no previous criminal conviction. He was educated up to Form 5 level in Hong Kong. He became a jewellery designer and jewellery salesman after he finished his studies. He used to earn around 20,000 a month but he encountered financial problems and was declared a bankrupt between year 2000 and 2004 due to a failure of his jewellery business. The defendant was married but his wife divorced him in 2012, and their two daughters now live with their mother.
Mr Boey Chung mitigating on behalf of the defendant informed the court that the defendant started to commit the present offences as a result of a Japanese buyer running away with the jewellery he sold to him without paying. In order to cover the loss of about HK$1 million, the defendant started to pawn items entrusted to him for sale on consignment, hoping against hope that he could turn his business around. His hope to somehow recover the loss and to retrieve the pawned items did not materialise, and he found himself now convicted of these offences.
Mr Boey Chung emphasised the fact that this is not a sophisticated theft but a straightforward one. Further, though there were some elements of breach of trust, this was not a classic case of breach of trust. Whilst accepting the guidelines laid down in the case of Cheung Mee Kiu, Mr Boey Chung submitted to this court that this court should follow the decision of a differently constituted Court of Appeal in the case of Hung Fan Kit to adopt a lower starting point to reflect the lesser degree of breach of trust.
Mr Boey Chung emphasised the fact that the defendant admitted fully what he had done, and he was fully co‑operative with the police upon arrest. Mr Boey Chung also submitted that as a result of the defendant giving the pawn tickets to the police, most of the pawned items were recovered. While there is going to be interpleader proceedings between the owners and the pawnshop owners, the defendant had not disposed of the stolen items completely, causing total loss to the owners.
Mr Boey Chung asked the court to adopt a lower starting point and to give the defendant the full one-third discount upon his plea.
The defendant, his parents, his former colleagues and a social worker all wrote to me. Suffice it to say that emerging from these letters, the defendant was described as a responsible man who was a filial son. He was mainly responsible for the upkeep of his aged parents prior to his incarceration. The defendant is truly remorseful for what he has done. He lost his wife and the chance of seeing his two daughters growing up. Whilst accepting that he must face the music now that he has committed these offences, all ask for leniency so that he could restart his life earlier.
The Authorities
The present case is very similar to the case of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776. In that case, the defendant, a 61-year-old jewellery company owner with no previous convictions, stole jewellery worth close to $10 million entrusted to her for sale, pawned many of them and put the money into the company’s account which was heavily in debt. She was sentenced to a total of 4 years 4 months’ imprisonment.
The Court of Appeal, after referring to the well-known English case of R v Clark [1998] 2 Cr App Rep 137, set down guidelines for future cases as follows:
(1) over $15 million: 10 years or more;
(2) 3 million to 15 million: 5 to 9 years;
(3) 1 million to 3 million: 3 to 4 years;
(4) 250,000 to 1 million: 2 to 3 years;
(5) less than 250,000: less than 2 years. That is the fifth category.
The Court of Appeal differently constituted in the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 adjusted the second and third bands as follows, that is, the second band, 3 million to $15 million to 5 to 10 years; the third band, 1 million to 3 million, 3 to 5 years to ensure there was no perceived gap between the sentences for 1 to 3 million, 3 to 5 million, and over 15 million.
In HKSAR v Hung Fan Kit [2013] 1 HKLRD 958, again a case very similar to the present one and to Cheung Mee Kiu, the Court of Appeal when considering the sentence imposed by the trial judge said that while there was an element of breach of trust involved, that was not a classic breach-of-trust situation. The 3-year starting point indicated in Cheung Mee Kiu for the theft of property in breach of trust worth $1 million could fairly be mitigated.
I now turn to the sentence of this defendant. The defendant committed these seven offences within a period of about six months. That is from April to October 2011. For each of these seven counts, the defendant acted in breach of trust by stealing jewellery entrusted to him for sale on consignment. I accept that this was not a classic case of breach of trust, so the starting point can indeed be mitigated. I also bore in mind all that was said by Mr Boey Chung on behalf of the defendant both in relation to his background, the reason why he committed the present offences and what he had done upon arrest.
The circumstances of each offence are the same but the values of the jewellery involved are different. I am of the view that the following starting points are appropriate: 1st count involving $942,529.40: 2 and a half years, 30 months, that is. The 2nd count involves $361,488.40: 2 years. That is 24 months. The 3rd count involving $2,177,546, I impose a starting point of 3 years, 36 months. 4th count, just over 1 million, $1,200,735, I impose a starting point of 2 years 9 months, 33 months.
The 5th count, the amount should be $279,848. The starting point is 1 year 9 months, 21 months. The 6th count, the amount is 549,736, 2 years’ starting point, 24 months. The 7th count, $1,304,600, 3 years’ starting point, 36 months.
Now, after giving the defendant the usual one-third discount for his plea, the sentences are as follows: 1st count, 20 months, that is 1 year and 8 months. The 2nd count, 16 months, 1 year 4 months. The 3rd count, 24 months, that is 2 years. The 4th count, 22 months, 1 year 10 months. The 5th count, 14 months, that is 1 year 2 months. The 6th count, 16 months, that is 1 year 4 months. The 7th count, 2 years, 24 months.
Just do have a quick look to see if the one-third discount is correct because with what I have given as the starting point, please, but I will deal with the totality first anyway. So I will now have to consider the totality of sentence. Now, I bear in mind that the total amount involved is 6,816,483.20. That falls into the second band of 3 to 15 million with the appropriate sentence ranging from 5 to 10 years.
I am of the view that if I were to take a global starting point for all these seven offences, bearing in mind all that was said on behalf of the defendant and the circumstances of the offence, I would have adopted 5 and a half years,...
COURT: So with a 5-and-a-half-year starting point, the sentence would be 44 months, 3 years and 8 months. Thank you. And I am of the view that a total sentence of 44 months properly reflects the criminality of the defendant in these offences. So to achieve this result, I will order that the sentences imposed on the 1st to 6th counts all to run concurrently. That would result in a total sentence of 2 years. Now, 2, that will be 48. So of the 24 months imposed on the 7th count, let me see, 1 year and 8 months to run consecutively, and that would result in a total of 44 months.