HKSAR v. TOSAYA TOMOKO

DCCC453/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 453 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges of theft. The victim company, Pan Pacific Diamonds Company Limited (“the victim”), is a diamond-trading company in Hong Kong. CCTV cameras were installed inside the victim’s office premises. The defendant had been working for the victim as a sales representative in Hong Kong since 2009. She was mainly responsible for the business in Shanghai and quality inspection of the diamonds. The diamonds were kept in a safe inside the victim’s office. The defendant was one of the few persons who had access to the safe out of working hours. The defendant was also allowed to take away diamonds for business purposes, for example, for showing the diamonds to clients. However, she had to report the same to the managing director.

2.  During a regular stock check in the evening of 27 February this year when the staff of the victim discovered that a 3-carat diamond valued at over $500,000 was missing, the CCTV was checked and it was discovered that the defendant had entered the victim’s office between 11.28 and 11.33 pm on 26 February this year, taken the keys to open the safe and searched through the safe.  The defendant then left after closing up the safe.  She was out of contact on 27 February and the matter was reported to the police.

3.  Upon checking of internal records, it was discovered that the defendant had taken away a further 40 diamonds between 20 November last year and 19 February this year.  The total value of those diamonds was over $5.2 million.  The diamonds were taken out under 10 consignment forms which recorded the names of clients which were handled by the defendant.  In addition, another staff of the company had given another diamond valued at $12,000-odd to the defendant on 25 February this year at the Hong Kong Airport, but the diamond was never returned to the victim.

4.  The defendant was arrested at about 10.15 pm on 29 February when she returned to Hong Kong from Macau.  Upon search, a total of 34 pawn slips were found inside her handbag.  The pawn slips showed that stones valued at about $4,627,550 had been pawned.  

5.  In a record of interview on 1 March this year, the defendant admitted that she had taken the 3-carat diamond from the victim’s office on 26 February and had pawned it for $250,000 for cash in Macau.  She had also taken the 40 diamonds under the 10 consignment forms and had pawned the stones without the victim’s consent.  She agreed that she had received a diamond at the Hong Kong Airport and had pawned the same in Macau.  She agreed that the pawn slips related to the pawning of those diamonds and she had lost all the money in various casinos in Macau.

6.  Immigration record showed that the defendant had been going to Macau almost every day between January and February this year. 

Record and Antecedent

7.  The defendant has a clear record.  She is single.  She left school in 1998 and left her hometown to work in Tokyo. Whilst in Tokyo, she met the majority shareholder of the victim company who encouraged her to take up a gem certification course, and upon her graduation, he employed her in the victim company.  Her monthly basic salary was $20,000 with a commission of up to 30,000 per month.

8.  Her father has passed away, her mother is still in Japan, and the defendant regularly makes contributions to her of about half her income.

9.  Counsel submitted that apart from dealing with well‑heeled and hard-headed clients, the defendant had to certify gems.  Her job was very stressful.  She was underpaid and overworked.  That was why she started gambling.  She lost control as her losses mounted and she tried to recover her losses with increasingly large bets.  Eventually, she became addicted to gambling and was eventually arrested.  She has written to her colleagues and her mentor to apologise.  Her mentor has visited her in custody and has indicated that he wanted compensation for the lost diamonds.  There was no dispute that there is no evidence to show that there is any prospect of ever recovering the diamonds. 

10.  Counsel submitted that the defendant was now very remorseful.  He asked the court to pass a lenient sentence.

11.  This is a very serious case.  Not only does it involve a breach of trust.  The amounts involved are very substantial.  There are sentencing guidelines for these type of cases.  If the amounts involved are between $250,000 to $1 million, the appropriate starting point is 2 to 3 years.  If the amount involves 3 million to 15 million, the appropriate starting point is between 5 to 10 years.  Apart from the amount stolen, the court should also consider all relevant factors, including those set out in R v Barrick [81] Cr App R 78. 

12.  I understand that this is not a very sophisticated theft.  However, the amounts involved are very substantial.  She was given access to the diamonds during out-of-work hours and clearly a high degree of trust was reposed in her.  The diamonds were pawned to feed her gambling habit.  Apart from her guilty plea, there is really no mitigation.

13.  In all those circumstances, for Charge 1, I adopt a starting point of 2 and a half years.  I give the defendant full credit for her guilty plea.  The sentence is reduced to 20 months.

14.  For Charge 2, I adopt a starting point of 6 years.  I give the defendant full credit for her guilty plea.  The sentence is reduced to 4 years.

15.  As for Charge 3, I adopt a starting point of 9 months.  After giving the defendant full credit for her guilty plea, the sentence is reduced to 6 months.

16.  Each of the charges involved different stones. They were committed at different times.  Technically, the sentences should be consecutive.  However, I have to take into consideration the principle of totality.  I order that 8 months of the sentence in Charge 1 be served consecutively to Charge 2.  The sentence in Charge 3 is to be served concurrently to the two other charges.  That makes a total of 56 months.