HKSAR v. HO KA KIT

DCCC454/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 454 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges of theft. He has admitted the facts and I have convicted him of the offence.

2.  The facts admitted by the defendant show that he was employed by a Madam Chong at the Mariane Jewellery & Watch Company in Tsim Sha Tsui.  He was employed as a watch salesman.  The defendant failed to attend work on 9 March 2011, and a stock check was taken.  It was discovered that a total of six Rolex watches with a value or a total value of $670,700 were missing.

3.  On 17 March this year, when the defendant was leaving Hong Kong for Shenzhen, he was arrested or intercepted, and a total of five pawn tickets were found in his wallet.  In a video-recorded interview, he admitted that he had stolen the Rolex watches.  He said that on 6 March, he stole a Rolex watch from the shop, and on 7 March, he stole two Rolexes.  On 8 March, he stole another Rolex.  He received a total of 398,000 - I think it is the figure - by way of pawning the watches and had lost all that money in gambling.  The pawn tickets seized by him related to those stolen watches.

4.  Although the admissions appear to relate to four watches, the charge to which the defendant has pleaded guilty relates to the six watches.

5.  The defendant has been convicted in the past of criminal offences.  He was convicted in 2003 and placed on probation for theft and attempted theft.  Then in 2006, for managing a vice establishment, he was sentenced to 6 months’ imprisonment. 

6.  The defendant is a 26-year-old man and so the most recent offence committed in 2006 was some time ago, so five years ago when he was 21 years old. 

7.  Now, I obtained a background report on the defendant because despite his theft from his employer, his employer is standing by him and appears to understand the defendant has committed a lapse from grace, so he is prepared to in fact employ him again in the future.  And the defendant is, as I said, a 26-year-old man.  He is married, he is a family man, he has two children aged 7 years old and 4 years old, and he has had other employment but his main employment has been since 2009 at the Mariane Jewellery & Watch Company where he had a good job and was an appreciated worker. 

8.  What appears to have happened is the defendant has involved himself in gambling.  In the report, he said he was previously what he called a social gambler engaged in football gambling and was able to keep within a budget for his gambling.  But on a visit to Macau, he became interested in gambling at casinos there, particularly in the game of baccarat.  His explanation is that he suffered heavy losses in the gambling and that he took and pawned the watches in order to make good those heavy losses that he had made.

9.  The theft itself is a serious matter because it involves a theft from his employer which involves a breach of trust, and there are in fact clear guidelines as to how breach‑of-trust cases should be approached in terms of sentencing and the length of sentencing.   

10.  Against that, I have the following factors. Firstly, the defendant is, as I said, a family man.  He has young children and a wife to support and maintain.  And by being sentenced to prison, his children will be denied as well as his wife his society and company over some period of time.  But suffice it to say both his family and his previous employer are standing by him through this.  That is an important factor and shows that he must have made a favourable impression on all of them.

11.  As far as the sentencing is concerned, the total loss of the employer was in the region of $670,000.  Now, between thefts of employers in the region of a quarter of a million to $1 million, a starting point for sentence of between 2 and 3 years should normally be adopted.  Aggregating that figure through the three charges would lead to a figure slightly over $200,000 in respect of each charge but in fact aggregate it, which would mean the sentence would be at large up to 2 years’ imprisonment for each offence.

12.  What I have decided to do is adopt a starting point for sentence in respect of each charge of 18 months’ imprisonment.  That I will reduce to 12 months’ imprisonment on each charge, having regard to the defendant’s plea of guilty. 

13.  Now, I have taken into consideration what the correct overall total sentence should be.  I consider that in a theft from an employer concerning valuable items such as this up to a value of $670,000, a starting point for sentence which should be adopted should be around 27 months’ imprisonment.  And after deduction for plea of guilty, that would be reduced to 18 months’ imprisonment.  There are some other factors to be borne in mind here, particularly the defendant’s undertaking to his employer to pay back this money through his employment when he is able to resume it, and also the fact that he will be able to resume employment.

14.  For those reasons, I shall reduce the sentence of imprisonment by a further 2 months, down to 16 months’ imprisonment.  I consider that to be an appropriate overall total sentence for these offences, and I shall achieve that total by ordering that the sentence of imprisonment on the first two charges run concurrently to each other.  And as far as the 3rd charge is concerned, 4 months of that will run consecutively to the first two charges and 8 months will run concurrently, giving a total overall sentence of 16 months’ imprisonment.