HKSAR v. HO CHI WAH

 DCCC1166/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1166 OF 2008

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Reasons for Sentence

1.  You have pleaded guilty to three charges of theft.  The 1st and 2nd charge are thefts from your girlfriend, Madam Wu Sau-fong.  The 1st charge concerns theft of cash in the sum of HK$1,702,100 between 4 May 2002 and 19 April 2007.

2.  The 2nd charge concerns theft of various jewellery, which are watches, diamond rings, gold necklaces and bracelets between an unknown day in 2002 and 19 April 2007.  That jewellery was taken from your abode, which you shared with Madam Wu.

3.  The 3rd charge concerns theft of cash in the sum of HK$5,500 belonging to Lee Kin-keung who is the son of your girlfriend, Madam Wu, who is now approximately 17 years of age.

4.  Madam Wu was widowed in 1995.  She and her two children, a son and daughter, had thereafter been living on interest earned from her money and savings placed in her bank accounts.  In 2001, she met you.  At that time they were living at Flat A, 12th Floor, Tak Tai Court, No. 3 Tak Tai Path, Tai Ha Street, Kwai Chung, New Territories, which is the address in Charge 2.  In about February of 2002, you then moved into her flat to live with her and her two children.  At that time you worked as a decoration worker and contributed about $8,000 every two weeks to Madam Wu as household expenditure.  Since then she and her children relied solely on you for contributions to household expenses.

5.  As Madam Wu trusted you, she gave you a key to her cabinet drawer in her bedroom where she put all her valuables including bank cards, credit cards and letters containing passwords of those cards, and a key to a drawer of her dressing table where she put all her watches and jewellery.  Upon receipt of the credit card and letters containing passwords, Madam Wu did not do anything about the passwords.  She simply left them in the locked drawer.  She occasionally used the ETC card and her HSBC Visa card, while all the other cards were left in the drawer all along.  In addition, you were given a key to the letter-box.

6.  In respect of the discovery of these offences, it was on the morning of 19 April 2007, Madam Wu found various watches and jewellery were missing from her drawer.  They were two ladies’ Rolex watches, a male Rolex watch, three diamond rings, three gold necklaces and nine gold bracelets.  The male Rolex watch, however, was a gift that she had made to you.  Discounting the value of that Rolex watch, the value of the remaining property was approximately HK$117,700-odd.

7.  She suspected that you were responsible for the disappearance of the jewellery, as only you had the other key to the drawer.  When Madam Wu confronted you, you gave her a negative reply and left the flat immediately.  Madam Wu then conducted a thorough check with her bank-related items and found that her passbook and ETC card of HSBC savings account, her HSBC Premier card, Visa card and Gold Visa card were all missing.

8.  Madam Wu immediately made inquiries with the bank and discovered cash withdrawals and overdrafts had been made from her bank accounts since 4 May 2002.  All the withdrawals were made at ATMs in the Tsuen Wan area and the total sum of withdrawals amounted to HK$1,702,100.  Those withdrawals were made with the various cards that went missing.

9.  You surrendered to the police and were arrested on 24 April 2007.  Under caution you said, “Ah Sir, it’s me who stole my girlfriend Wu Sau-fong’s money.”  At that time you produced seven receipts from four different pawnbrokers and you had in your possession three credit cards belonging to Madam Wu.  Subsequently, four cautioned interviews were conducted and you admitted that you had stolen all the jewellery, the watches and bank cards which were in the flat.

10.  You said that you used to give the family HK$5,000 as expenses every two weeks, but when you lost your job you started to use the bank cards of Madam Wu together with the passwords to withdraw cash from the accounts of Madam Wu.  You claimed that part of the cash was used as household contributions.  You knew that Madam Wu was not aware of the withdrawals that you made because she paid no attention to her bank accounts or statements.

11.  The pawnbroker’s receipts:  you produced receipts relating to the stolen items that were pawned by you.  You had torn the bank passbook and ETC card and disposed of them near the Star Ferry and admitted that the three credit cards seized from your wallet belonged to Madam Wu and you had used up all the credit limits before March 2007.  You admitted that you made withdrawals from the bank accounts of Madam Wu.  As far as the money stolen from the son, Mr Lee, was concerned, you had helped him open a bank account in the Standard Chartered Bank.  You therefore became aware of the password of Mr Lee’s bank card, and in March 2007 you stole the Standard Chartered bank card from his wallet and withdrew HK$5,500 from the account.

12.  The total amount involved in the three charges is approximately HK$1.82 million.  I am informed that the property recovered from the pawnbroker were all positively identified by Madam Wu as the stolen properties and she has since had returned to her a ladies’ Rolex watch valued at HK$14,000 and a gold necklace and two diamond rings, at a total value of HK$23,000.

13.  Mr Wong, your solicitor, who appeared for you today, has made a very full and detailed mitigation on your behalf.  He has helpfully submitted his lengthy submissions, in writing, to me.  I have also had submitted to me a letter written by yourself to me and a letter written by the son, the victim of the 3rd charge, Mr Lee, on behalf of himself and his sister.  Madam Wu has also said a few words in court today and those are that she has forgiven you and that she hopes the court will pass a lenient sentence upon you.  She knows it was wrong that you stole the money but the money was used for the family, and, again, she hopes that the court will take this into account.

14.  I have taken into account and consideration all that Mr Wong has said for you and the son and daughter of Madam Wu, and of course your letter expressing your deep remorse for the commission of these offences.  You are 34 years of age and you have four previous convictions in two separate court cases.  The three convictions related to dishonesty, were in 1990 when you were about 14 years of age; some 18 years ago now and you were, of course, of young age.  You have not committed any offences since 1992.  At the time of committing the present offences you were unemployed and have been since May of 2002.

15.  Mr Wong informs me that when you commenced cohabitating with Madam Wu and the children you had an agreement with her that you should be responsible to look after the family financially.  Therefore, through your gainful employment at the time, you contributed to their daily living expenses.  However, some three months later you became unemployed.  Holding out the traditional belief that a Chinese male should shoulder the sole responsibility of a family you dared not inform Madam Wu that you were out of a job.  Therefore, out of stupidity, you chose to steal from her to honour your promise to support the family, that is, herself and the two children.

16.  Mr Wong submits that the fact remains that you gave a substantial part of the stolen money back to Madam Wu as household expenses and you only kept part of the proceeds for your own use.  Mr Wong accepts that there is an element of breach of trust in this case, but he says that as you had used the money stolen as contribution towards family expenses the gravity is less serious than this offence appears to be.

17.  Madam Wu and the children are here in court today.  It is clear to me that they have forgiven you for what you have done wrong against them and you yourself clearly have shown your remorse by your very early plea of guilty and the fact that you have surrendered to the police and co-operated with them fully.

18.  Since July 2007, you have, through your mother, been repaying $3,000 a month to Madam Wu in an attempt to repay her for the money stolen.  It is your vow to continue to repay her in similar fashion if the circumstances allow.  So far, up to today, therefore you should have repaid her approximately $54,000.

19.  Mr Wong has urged this court to call for a Community Service Order report, in view, he says, of this offence ranking at the very low end of the scale of seriousness and of your clear and frank remorse.  I do not consider community service an appropriate sentence for these offences which you have committed.  This offence warrants an immediate sentence of imprisonment.  The total amount stolen, and as admitted, is approximately $1.82 million.  That is not an insignificant amount of money.  The theft continued for a period of approximately five years.  That is, of itself, also not a short period of time.

20.  Although I accept the previous offences that you committed were some 18 years ago, those offences were serious offences - those of burglary and handling stolen goods - and were offences of straightforward dishonesty.  A particularly aggravating factor in this case is the fact that you stole from your girlfriend and her son to whom you were in a relationship with, to whom loved you and to whom you were cohabitating with.  She, as said in the facts, had trusted you and had given you the key to her prized possessions and her very personal belongings.

21.  The trust placed between partners in a relationship is very high indeed.  It cannot be measured.  There is obviously a feeling of great hurt, sorrow and suffering when you know that your loved one has cheated you and been dishonest with you.  To carry on a façade of going out daily, pretending to go to work and bluffing your partner for some five years is an act which must be highly skilful and deliberate on your part.  This is not a one-off theft because of a desperate need.  This is a charade over a five-year period.  It is probably inconceivable that Madam Wu would have ever thought that her partner was stealing from right under her nose.

22.  I accept that Madam Wu and even her children, surprisingly, have forgiven you.  They obviously feel a great sense of passion and compassion towards you.  In respect of the money stolen, to which you say you used part of it to support the family, I do not accept that to be of great weight in the mitigation of these offences.  The understanding was that you were to use your own hard-earned money to support the family, not the money of Madam Wu.  As a result of using Madam Wu’s money, her savings I am informed have now diminished and dwindled to nothing and she is now having to be supported by her sister.

23.  You say that you dared not tell Madam Wu that you had lost your job, as it was your belief that the male should shoulder the responsibility for the family.  This may have been your thoughts at the outset.  But I am convinced that you knew how easy it was to steal from Madam Wu, as she did not care about her finances, and you therefore took advantage of this fact and continued to do so.  As you said under caution, she did not bother to care about her bank accounts or her statements.  You took advantage of her laissez faire attitude and used that to your best benefit over a period of five long years.  This, in my view, as I have said, is a very serious offence aggravated by the fact that you were Madam Wu’s trusted partner.

24.  I accept that you are remorseful through your plea of guilty.  You have attempted to make some restitution to her.  I have taken into account the feelings of Madam Wu and the children and I have also taken into account the principle of totality when I sentence you.  The total amount of the value is about HK$1.8 million.

25.  Had I convicted you after trial, I would have taken a starting point of 3 years and 3 months’ imprisonment.  However, I must give you full credit for your plea of guilty and reduce that term to one of 26 months.  That is a total term of 2 years and 2 months’ imprisonment, to which you shall be so sentenced.  I will, however, need to sentence you separately for each charge and they shall be as follows:

Charge 1: a starting point of 3 years, reduced to one of 2 years’ imprisonment;

Charge 2: 12 months’ imprisonment, reduced to 8 months;

Charge 3: 6 months’ imprisonment, reduced to 4 months.

Charges 1 and 2 to be served concurrently to each other and two months of Charge 3 are to run consecutively to Charges 1 and 2.  That makes a total term of 2 years and 2 months’ imprisonment.