HKSAR v. MA WING HANG

DCCC 19/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 19 OF 2014

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Reasons for Sentence

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1.  The prosecution applied to amend the charge relating to the dates of the offence and the application was granted. The defendant pleaded guilty to one count of theft and was convicted. It was the prosecution’s case that the defendant was the jewellery salesman of Polygold Enterprises Limited at the material time. The defendant was authorised to keep the company’s jewellery for one business day for sales purpose. This would be recorded on the computer system. The defendant was required to return the said jewellery to the company for storage at the end of each business day.

2.  The defendant was authorised to pass the jewellery to the custody of a potential buyer for up to three months awaiting confirmation of the sale.  If the purchaser wanted to keep the jewellery, the buyer must sign an “On Trust Voucher” documenting the temporary custody.  The computer record of the company would still show the jewellery as being in the defendant’s custody until sold.

3.  According to the computer record, between 22 February 2012 and 4 October 2013, 53 jewellery items comprised of four pairs of earrings, two pendants, 28 rings and 19 wrist chains, with a total selling price of about HK$2.24 million, were in the defendant’s custody.  The “On Trust Vouchers” indicated that these jewellery were kept by four potential buyers.

4.  The owner of the company, Chu Kwok-keung, felt suspicious when some of the alleged potential buyers had kept the jewellery for more than three months.  Chu urged the defendant to follow up the matter in August 2013.  Eventually Chu contacted two of the four alleged buyers in early October 2013.  They confirmed that they had already returned the jewellery.  On 7 October 2013, Chu confronted the defendant about the missing items.  The defendant confessed that he had pawned the jewellery concerned because he was in need of money.  The defendant also admitted that he had forged the “On Trust Vouchers”.  It transpired that the defendant had falsified a total of 13 “On Trust Vouchers” in order to cover up his misdeeds.

5.  The matter was reported to the police and the defendant was arrested on 7 October 2013.  Under verbal caution, the defendant said he had suffered a great loss in the stock market and had pawned the jewellery.  The police recovered 38 pawn tickets from the defendant. All the 53 stolen jewellery were recovered and were identified by Chu.  The alleged potential buyers confirmed that they either had the jewellery returned or had never kept the jewellery.

6.  In the video-recorded interview, the defendant admitted, inter alia, the following:

(1) In late October 2012 he started to pawn the jewellery belonging to the company.

(2) He intended to redeem the jewellery from the pawn shops when he had the money.

(3) He failed to do so as he kept on losing money in soccer gambling activities.

(4) He obtained a total of about HK$200,000 from pawning the jewellery.

(5) He forged the “On Trust Vouchers” to cover up the pawning of the jewellery.

(6) He pawned the jewellery at different pawn shops.

7.  The prosecution also tendered a letter dated 20 March 2014 issued by Kenny Chu of Polygold Jewellery Company saying that the actual value of the goods after a discount of 55% would be about HK$1.01 million.  There will be interpleader proceedings between Polygold and the various pawnshops.

Mitigation

8.  The defendant, now aged 35, had a clear record. The defence counsel submitted that this was an unusual case as the defendant kept the interest payments throughout.  It was further submitted that the actual loss should be about $247,000, which was the money the defendant received from the pawn shops.  It was said the defendant lost his money in the stock market and the defendant had done everything to minimise the loss.  This is not one of the most serious cases, and the court was urged to adopt a lower starting point.  The defendant is remorseful and he admitted everything to the police.  The actual loss was just a fraction of the value of the stolen property.  Defence counsel also tendered eight mitigation letters from the defendant, the defendant’s father, the defendant’s girlfriend, the defendant’s relatives, the defendant’s pastor and other persons who know the defendant through the community projects or organisations.  In his mitigation letter, the defendant said that he had a wrong value judgment and had lost a lot of money in investments.  During the period of remand, the defendant has the chance to return to his religious belief and was touched by the care and concern of his family members and girlfriend.  The defendant promised to turn a new leaf, and pleaded for leniency.  The defendant’s father wished the court to pass a lenient sentence and was sure that the defendant would reform himself.  The defendant’s current girlfriend appraised the defendant to be a passionate man who was doing a lot of community service.  The defendant had a setback in his relationship with the defendant’s previous girlfriend, and after some struggle, the defendant managed to return to his normal life subsequently.

Sentence

9.  This was a typical breach of trust case involving an employee stealing the property belonging to his employer.  The span of time that the defendant perpetrated the crime lasted for some 19 months, from late February 2012 to early October 2013.  The defendant forged the “On Trust Vouchers”, and that is an aggravating feature in this crime.  The defendant pawned 53 pieces of jewellery items with the total value of some $2.2 million at different pawn shops.  In his cautioned interview, the defendant claimed that he pawned the items for $200,000 only. Today defence counsel said the total value that the defendant pawned the items was around $247,000.  The prosecution informed the court that the actual value of the stolen items after discount would be in the region of $1.01 million.

10.  I would not accept that the defendant did not plan for the stealing, as the offence lasted for more than 19 months, and that forged vouchers were uttered.  The fact that the defendant kept the interest payments throughout did not assist the defendant, as this was just one of the ways to conceal the defendant’s crime.  The defendant might have the false hope that somehow he might be able to redeem the goods, and so his crime would be covered.  I do not accept that the actual loss to be suffered by the company confined to the amount that the defendant pawned the items.  The defendant’s culpability is that the company suffered the risk of losing all these jewellery items.  In fact, it is also arguable if the actual value of the items should take into account of the possible discount to be offered to the purchaser, and even if a discount is to be offered, whether it could be offered to the tune of 55% off.  In any event, I accept that the value of the stolen goods was less than what is stated in the Summary of Facts.

11.  It is accepted that HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 provided the sentencing guideline for those theft cases involving a breach of trust.  The Court of Appeal set the guideline that for cases involving $1 million to $3 million, the sentence range would be 3 years to 5 years.  I am of the view that the value of the stolen property is just one of the factors to consider in sentencing.  In the present case the defendant premeditated the theft with the creation of forged vouchers and the deliberate act of pawning the goods to various different pawn shops in order to avoid detection.  That said, I am convinced that the defendant is a man of relatively good nature, and he has the support of his family and girlfriend in order to overcome difficulties in life.  I have confidence that the defendant would not reoffend.

12.  The defendant made a wise move to plead guilty to the charge, for which he will receive one-third discount in sentence. Otherwise, the defendant would certainly face a longer sentence after trial.

13.  Taking all factors into account, I will adopt a starting point of 3½ years. With the defendant’s plea, I will reduce the sentence to 28 months.  Given the defendant’s clear record and remorsefulness, I will give further discount, and sentence the defendant to 24 months in prison.  I hope and do believe that the defendant will take this hard lesson seriously and keep his promises after discharge.