HKSAR v. YAN WAI HANG also known as YAN WAI HUNG

DCCC 466/2021

[2022] HKDC 92

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 466 OF 2021

________________________

________________________

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.  Mr Yan pleaded guilty before me to three charges of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  Particulars of Charge 1 are that he, on 29 June 2020, at Ground floor, No 169 Cheung Sha Wan Road, Sham Shui Po, Kowloon, in Hong Kong, stole one watch, property belonging to Lung Shing Centre Limited.

3.  Particulars of Charge 2 are that he, on 21 January 2021, at Ground floor, No 71 Tai Po Road, Sham Shui Po, Kowloon, in Hong Kong, stole 3 necklaces, property belonging to Fook Shing Gold Company Limited.

4.  Particulars of Charge 3 are that he, on 4 February 2021, at Shop G12A, Ground floor, No 610 Nathan Road, Mong Kok, Kowloon, in Hong Kong, stole one wrist chain, property belonging to My Jewelry (Garnet)  Limited.

Facts admitted by Mr Yan

Charge 1

5.  On 29 June 2020, shortly before 6 pm, Mr Yan entered a shop known as Lung Shing Centre Limited located in Sham Shui Po.  He indicated to the salesman PW1 that he wanted to look at a Rolex watch on display valued at $68,800.  PW1 let Mr Yan try it on around his left wrist.  While PW1 turned around to fetch a calculator, Mr Yan ran away.  Case was reported.

6.  At about 6:48 pm the same day, Mr Yan and a woman went to a pawnshop and pawned the same Rolex at $55,000.  Mr Yan’s HKID was produced for checking and his personal particulars were taken down.

Charge 2

7.  On 21 January 2021, shortly after half-past-four in the afternoon, Mr Yan entered a shop known as Fook Shing Gold Company Limited located in Sham Shui Po.  He indicated to the salesman PW2 he wanted to look at some gold necklaces.  PW2 let him examine 3 gold necklaces (with a total value of $52,000).

8.  Suddenly, Mr Yan ran away with the 3 necklaces.  Case was reported.

Charge 3

9.  On 4 February 2021, shortly after 11 am, Mr Yan entered a shop known as My Jewelry (Garnet)  Limited located in Nathan Road, Mong Kok.  He indicated to a saleswoman PW3 that he wanted to look at some wrist chains.  PW3 let him examine 3 wrist chains, including a diamond wrist chain (valued at $80,888). Suddenly, Mr Yan attempted to take away all 3 wrist chains with both hands. PW3 held the wrist chains firmly.  Notwithstanding, Mr Yan managed to run away with the diamond wrist chain.  Case was reported.

Arrest and caution

10.  On 6 and 7 February 2021, Mr Yan was arrested for the 3 thefts.  In a cautioned VRI, he admitted:-

(a)  He took away the watch under Charge 1 and pawned it;

(b)  He took away the 3 gold necklaces under Charge 2; and

(c)  He took away the diamond wrist chain under Charge 3.

Criminal record

11.  Mr Yan has 7 convictions 3 of them similar with the last one in 2008.

Antecedents

12.  Mr Yan is 55 years old (54 at the time of the offences), educated to F3 level, was a driver and resided in Sham Shui Po.

Mitigation

13.  Ms Liza Li of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Yan.  The following is a summary of the mitigation submissions.

14.  Mr Yan is a widower.  His wife passed away in November 2020 as a result of lung carcinoma.  He has a daughter aged 29 (married)  who is in court to give her support.  Mr Yan had previously worked as a warehouse worker and a driver.

15.  In 2018, his deceased wife was diagnosed Stage IV.  She therefore ceased working and the couple spent all their savings on care and treatment.  Mr Yan himself became unemployed too.  The couple had to resort to borrowing. Eventually the couple filed for bankruptcy petitions at the end of 2019.

16.  On date of Charge 1, his wife needed $30,000 for target therapy medicine.  Out of desperation, Mr Yan committed the offence.

17.  On date of Charge 2, he was chased by financial institution for repayment of a loan.  Out of folly, he committed the offence and later also the offence subject of Charge 3.

18.  Mr Yan acted alone and there was nothing to indicate the offences were sophisticated or carefully planned.  No weapon was used.

19.  Mr Yan is remorseful.  He made full confessions to the police.  He pleaded guilty to the charges.

20.  There is no sentencing tariff for the offence of theft.  In all of the three offences, Mr Yan entered the shop premises, pretended to be a customer interested in the products.  He then seized the opportunity to take the valuables and fled.

21.  Ms Li referred to 4 cases, namely:-

(a)  HKSAR v Chu Ho Chuen (transliteration), HCMA 421/2009 (Chinese judgment);

(b)  HKSAR v Cheung King Chung (transliteration), HCMA 913/1999 (Chinese judgment);

(c)  HKSAR v Kuok Kam Kuong, DCCC 496/2014; and

(d)  HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.

22.  Ms Li submitted, relying on these cases, that a starting point of 12 to 18 months might be appropriate for one or more of the charges in this case.  Ms Li also urged the court to consider the totality principle in arriving at the final sentence.

23.  Ms Li submitted a total of 6 mitigation letters all written in Chinese with English translation.  They were written respectively by Mr Yan himself, a supervisor of body donation program of CUHK, Mr Yan’s daughter, a district councilor, a pastor and lastly a friend.  The contents are generally that Mr Yan committed the offences because of financial difficulties arising from both his and his wife’s ill-health, and excessive borrowing from friends despite the bankruptcy petition at the end of 2019; that Mrs Yan’s body will be ready for cremation after fulfilling her “teaching” duty after the Lunar New Year; that Mr Yan is remorseful; that Mr Yan is a kind and gentle person.  All the writers asked for a lenient sentence so that Mr Yan may turn over a new leaf and re-unite with his family early.

24.  Ms Li handed up on Mr Yan’s behalf a number of certificates showing variously Mrs Yan’s date of death, the participation of the Yan couple in past voluntary activities and the fact that both joined the body donation program of CUHK.

Sentence

25.  Theft from jewelry shop is a serious offence.  It is incomprehensible why Mr Yan had to resort to stealing under Charges 2 and 3 on the pretext that he needed to repay a loan when he had already filed for bankruptcy petition at least 12 months prior.

26.  I have considered the cases referred to by Ms Li in mitigation.

27.  Although the offences here were carried out without much sophistication, they were clearly premeditated.  I will adopt a starting point of 18 months for each of the charges.

28.  Mr Yan pleaded guilty and is therefore entitled to the full 1/3 discount on sentence.  There is no other mitigating factor of weight to justify any further discount.

29.  The 3 offences were completely separate and ought to attract consecutive sentences, subject only to the totality principle which I shall take into account in imposing the final sentence.

(Mr Yan, please stand)

30.  For each of the 3 charges, the sentence is 12 months’ imprisonment.

31.  I order that 6 months of each of Charges 2 and 3 to run consecutively between themselves and the result is to run consecutively to the sentence on Charge 1, making an aggregate sentence of 24 months’ imprisonment.