HKSAR v.NG SIU FAI

DCCC 201/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 201 OF 2011

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Reasons for Sentence

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Introduction

1. The defendant is convicted after trial of 12 charges of theft, contrary to section 9 of the Theft Ordinance, Cap.210.

Facts

2. The offences took place at Mong Kok Police Station (the “Police Station”) on various days between 26 August 2009 and 23 August 2010 inclusive when the defendant, a senior police constable, was on duty at the Police Station as a Report Room Receptionist. When a member of the public went to the Police Station, the defendant as a Report Room Receptionist would make a preliminary enquiry with that person in order to ascertain the purpose of that person’s visit and then to direct that person to go to the appropriate counter.

3. On the respective dates when the offences took place, soon after the respective finders of the wallets (or card-holder in Charge 6 and $400 cash in Charge 15) had handed over the wallets/card-holder/$400 cash to the defendant, the defendant stole from those found property the respective sums of money stated below so that when the respective owners of the found property (except for the owner of the wallet in Charge 12 who had never been informed to collect her wallet from the Police Station) went to the Police Station to collect their wallets/card-holder/cash they lost, the respective sums of money stated below were already gone:

Charge	Date of Offence	Property stolen
2	26 August 2009	cash of HK$500
3	22 December 2009	some cash of Hong Kong currency
4	2 April 2010	cash of about HK$100
5	12 June 2010	cash of about HK$600
6	16 June 2010	cash of about HK$150
7	26 June 2010	cash of HK$60
8	26 June 2010	some cash of Hong Kong currency
10	15 July 2010	cash of about HK$60
12	25 July 2010	cash of HK$150
13	7 August 2010	cash of HK$120
14	11 August 2010	some cash of Hong Kong currency
15	23 August 2010	cash of HK$200

The defendant’s antecedents

4. The defendant has a clear record. He was born in December 1965 and is now 46 years old. He has received education up to Form 5 level in Hong Kong. He joined the Hong Kong Police Force in August 1984. He is married and has a one-year-old daughter. His wife and daughter live in the Mainland.

Mitigation

5. In mitigation, Mr Loftus submitted that:

(i) the defendant was a person of good character and had received a number of commendations;

(ii) as a result of the convictions, the defendant’s career as a police officer ended and he lost his entitlements to pension, accommodation, etc;

(iii) the defendant was co-operative with the police during the cautioned video-recorded interviews and had not exercised his right to silence;

(iv) the defendant was co-operative with the prosecution by admitting a number of evidence by virtue of sections 65B and 65C of the Criminal Procedure Ordinance; and

(v) the total amount stolen in the present 12 charges was around $2,000 only.

Background report

6. I called for a background report which is now available. In the report, it states inter alia that having completed his Form 2 education, the defendant went to the then Royal Police Cadet School, completed three years of training and education there and subsequently joined the Police Force in August 1984. He got married in 2005 and has a 1-year-old daughter. As the defendant would be terminated from government service and would lose his pension as a result of the present convictions, the defendant and his elder brother asked for leniency from the court.

Sentencing authorities

7. It was laid down in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 and HKSAR v Yeung Chiu CACC105/2009 that for an offence of theft involving a breach of trust involving the amount of $250,000 or below, the range of sentence should be 2 years’ imprisonment or less.

8. In R v Barrick (1985) 7 Cr App R(S) 142, the Lord Chief Justice said:

“The following are some of the matters to which the court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public confidence; (vi) the effect upon fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like …”

The sentencing principles and guidelines in Barrick, applied in R v Clark [1998] 2 Cr App R 137,have also been applied in Hong Kong: Secretary for Justice v Wong Kay Din CAAR 7/1998, HKSAR v Leung Shuk Man [2002] HKLRD 377 and Secretary for Justice v Chiu Chun Wai CAAR 1/2007.

9. The present case is a serious and gross breach of trust case – not only did the defendant abuse the trust placed in him by his employer, i.e. the Hong Kong Police Force, he also abused the trust placed in him and the police by the respective finders of the wallets/card-holder/cash who conscientiously took the trouble to go to the Police Station to hand in the found property hoping that the police would find the property owners. As the finders did not know the police procedures and how detailed the defendant’s notebook entries should be when recording a found property report, the defendant also abused the trust placed in him by the respective finders when he deliberately omitted to record in his notebook entries that the found property consisted of money, or deliberately recorded “money” in his notebook without specifying the exact amount of money. The defendant’s conduct definitely eroded the confidence of the public in the police, and brought the police into disrepute. I have no doubt that other police officers are ashamed of the defendant for what he did. His conduct was despicable. 

10. This case is further aggravated by the fact that it involves multiple offences of very similar nature committed at different times from August 2009 to August 2010.

Sentence

11. Having carefully considered the facts of the present case, the background of the defendant and the matters discussed above, I am of the view that although the amount involved in each of the offences was not significant (the highest amount being $600 in Charge 5), a starting point of 4 months’ imprisonment for each of the offences is appropriate.

12. I do not consider there being any valid mitigating feature justifying any reduction in sentence. In this connection, I have the following comments on the mitigation submitted by Mr Loftus:

(i) Although the defendant did not have any previous conviction, he having been convicted of multiple offences cannot be regarded as a first offender: Shum Ming and others v R [1978] HKLR 41;

(ii) The defendant received a number of commendations and awards which were produced as Exhibits D1 to D4 at trial. It was also submitted that as a result of the convictions, the defendant would lose his entitlements to pension, accommodation, etc. In this connection, Mr Justice Wright said in HKSAR v Leung Ping Nam [2007] 5 HKC 413:

“46. I recognize that the appellant has had a long career with the police during which he has executed his duties diligently, resulting in many commendations. He is a mature man who inevitably will face difficulty in re-establishing himself in another career. He potentially stands to forfeit considerable benefits which have accrued to him over the years. The fact remains that these were all serious offences upon which he embarked quite willingly and in respect of which he can hardly be said to have been unaware of the potential consequences were his conduct to be discovered.

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48. In my judgment the appropriate starting point is one of six months imprisonment. That is the same as the starting point which the magistrate identified. She then went on to reduce it by one month for, apparently, the appellant’s “positive personal background and good services”, apparently his career achievements, as well as the delay in prosecution.

49. With respect, the magistrate seems to have confused the existence of “positive good character” with a simple lack of previous criminal convictions, albeit that that in itself is frequently referred to as “good character”. Where a convicted person is able to demonstrate to the court positive good character, in whatever form that may take, then it would be open to the court to allow a reduction in sentence. There is no such evidence in this matter as would justify a reduction on that basis: of itself, discharging ones duties properly does not constitute what is to be regarded as positive good character.”

In HKSAR v Ng Ship Ping CACC 364/2004, the Court of Appeal said:

“24. Clearly, the judge had a discretion as to whether or not he took into account as a mitigating factor the loss of the applicant’s right to a ‘long service’ payment. Although the judge has not articulated his reasons for not taking into account this factor in mitigation of sentence, we are satisfied that there exist obvious, substantial grounds for disregarding it as a factor of mitigation. As Mr Zervos has pointed out, the applicant’s conduct over a period of three years and was a gross breach of the trust reposed in him by his employer, in that not only did he deal corruptly with their suppliers but also he did so in a way which disadvantaged them, and that they had to pay more for the goods so supplied. It is hardly surprising that his employment was terminated and it is right and proper that he is not entitled to a ‘long service’ payment. Equally, we are satisfied that it cannot be prayed-in-aid as a mitigating factor.”

The defendant joined the police in August 1984. By August 2009, he had been a police officer for 25 years. When the defendant embarked upon and subsequently continued with the commission the present twelve offences, he must have realized the potential consequences if his conduct was discovered. I therefore do not consider the defendant’s loss of various entitlements/benefits a mitigating factor. Neither do I consider the fact that the defendant received a number of commendations a mitigating factor.

(iii) I note that the defendant did not exercise his right to silence while he was being interviewed by the police, hence various video-recorded interviews produced as Exhibits P2A, P3A, P4A and P5A. However, the statements contained in the video-recorded interviews were mixed statements containing exculpatory parts. I do not consider the making of mixed statements in the video-recorded interviews a mitigating factor.

(iv) I also note that at trial, a number of evidence was admitted by virtue of sections 65B and 65C of the Criminal Procedure Ordinance. In this connection, I note that the major contention of the defence case was that when the finders handed in the found property to the defendant, the found property did not contain any money (or contained only $20 odd in Charge 3, $601 in Charge 14 and $200 in Charge 15). On the other hand, the evidence admitted by the defence by virtue of sections 65B and 65C of the Criminal Procedure Ordinance did not form part of the major contention of the defence case. I therefore do not consider the admission by the defence of a number of evidence by virtue of sections 65B and 65C of the Criminal Procedure Ordinance a mitigating factor.

As I do not consider there being any valid mitigating features justifying a reduction in sentence, I sentence the defendant to 4 months’ imprisonment for each of the offences.

13. Having considered the totality principle, I order one month’s imprisonment in each of the sentences in Charges 2 to 8, 10, 12, 13 and 14 to run consecutively with the 4 months’ imprisonment in Charge 15, and all the remaining sentences to run concurrently, thus making a total sentence of 15 months’ imprisonment.