HKSAR v. LAM KA CHUNG AND OTHERS

DCCC 198/2018

[2018] HKDC 1435

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 198 OF 2018

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REASONS FOR SENTENCE

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1.  The first defendant pleaded guilty to 4 counts of “burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (charges 1-4) and not guilty to 2 counts of “theft”, contrary to section 9 of the Theft Ordinance (charges 5-6), the first and second defendant pleaded guilty to 2 joint charges of “theft”, contrary to section 9 of the Theft Ordinance (charges 7-8) and the first and third defendant pleaded guilty to one joint charge of “theft”, contrary to section 9 of the Theft Ordinance (charge 9). Upon the prosecution’s application, charges 5-6 are left on court file and not to be proceeded with without the court’s leave. Today, I deal with the sentence of the first and third defendants.

Facts

2.  Mr Chan Chim Yuen was one of the managers of “Yau Ming Engineering Company Limited” (“the Company”) situated at the address as particularized in charge 1.  The main gate of the Company was not secured in order to allow workers to pick up work equipment throughout the day whenever necessary.

3.  The Company had a Standard Chartered Bank (Hong Kong) Limited (“SCB”) cheque book for the account as particularized in charge 5.  The owner of the Company would sign the cheques in advance and keep them inside a locked drawer at the office of the Company.  The office was open from 9:30 am to 7 pm from Monday to Friday and would be locked outside office hours.

4.  On 17 November 2015, Mr Chan took out the cheque book and discovered five cheques missing.  Three cheques amounting to HK$180,000 had been honoured between 27 October 2015 and 11 November 2015 on three occasions.  He had last used the cheque book on 10 November 2015.  He suspected that the first defendant, an ex-employee of the Company, could be involved because the first defendant had entered the office before for receiving his salary and he had noticed that the cheques were placed inside the drawer.

5.  Enquiries with the bank revealed the following details of the three cheques that had been honoured:

(a) Cheque No 925459 in the sum of HK$50,000 was presented by the second defendant on 27 October 2015

(b) Cheque No 925458 in the sum of HK$80,000 was presented by the second defendant on 11 November 2015

(c) Cheque No 925457 in the sum of HK$50,000 was presented by the third defendant on 11 November 2015

6.  Two fingerprints lifted from pages 1 and 48 of the cheque book were found to match the first defendant’s right thumb and right forefinger.

7.  The first to third defendants were arrested on 21, 12 and 13 April 2016 respectively

8.  In subsequent video-recorded interview, the first defendant admitted that he worked in the Company between 2014 and September 2015.  Lee Pi Yi (“LEE”) and the second and third defendants were part-time workers of the Company.  In October 2015, LEE told him that he was short of money.  Subsequently, he entered the Company and stole 5 cheques on four occasions.  Each time, he would enter the Company at around 1-2 am when nobody was around through the unlocked gate and would use the key to his own drawer at home to open the locked drawer in the office.  He then stole one cheque on each of the first three occasions and two cheques on the fourth occasion.  He passed two cheques to the second defendant and another cheque to the third defendant.  He asked them to present the cheques and gave them 10% commission in return.  He only received HK$57,000 as reward.

9.  In subsequent video-recorded interview, the third defendant admitted that he had worked for the Company from May to October 2015.  On 11 November 2015, he asked the first defendant if there was any job for him.  The first defendant then asked him to present a cheque for him in return for a 10% commission.  He did not ask about the source of the cheque but he heard that the cheque was stolen.  The third defendant then presented the cheque and passed the money to the first defendant.  He received HK$5,000 from the first defendant afterwards as commission and he had already used up the money received.

Mitigation

10.  The first defendant is aged 26, single and lives with his family.  He has 3 previous conviction records with one conviction for theft.  He was last convicted of the offence of dealing with goods to which the Dutiable Commodities Ordinance applies in November 2014 and was sentenced to 4 weeks’ imprisonment suspended for 36 months.

11.  In mitigation, it was submitted that the first defendant has been suffering from epilepsy for 11 years and has been unemployed for a year due to his health condition.  He committed the present offences due to financial difficulties.  Counsel for the first defendant referred to HKSAR v Leung Tsz Fung, Ringo, DCCC 740/2017 & 47/2018 in which a total sentence of 50 months was imposed for 12 counts of burglary and some other offences.  Given the first defendant’s guilty plea and taking into consideration the totality principle, the court was urged to impose a lenient sentence on the first defendant so that he could take care of his 80-year-old father after serving the sentence.  Counsel did not make any submission on the defendant’s breach of the suspended sentence.

12.  The third defendant is aged 21, single and lived with his family.  At the time of the offence, he had a clear record.  He was sentenced to 15 years and 10 months’ imprisonment for trafficking in dangerous drugs on 22 March 2018.

13.  In mitigation, it was submitted that the third defendant was only aged 17 at the time of the offence.  He was approached to present the cheque.  He suspected the cheque was stolen but he was promised a sum of money as reward. Given the third defendant is currently serving a lengthy sentence, the court was urged to impose a lenient sentence on him.

Sentence

14.  Although the first defendant has one previous conviction for theft, I do not intend to enhance the sentence on the basis of his previous conviction.  The third defendant had a clear record at the time of the offence. 

15.  As far as the theft charges are concerned, I consider there is an element of breach of trust in the case of the first defendant in that he was aware of the location where the cheques were put when he worked in the Company.  As a result, he had no difficulty in finding and stealing the cheques when he burgled the Company.  For the case of the third defendant, I accept there is no such element in his case. 

16.  The Court of Appeal has laid down sentencing guideline for theft involving breach of trust (see HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 770 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017).  For theft of less than HK$250,000, the sentence is less than 2 years.

17.  There is a well settled sentencing guideline for burglary of non-domestic premises.  According to the guideline, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2.5 years’ imprisonment.

18.  In considering the appropriate starting point, I take into consideration that the first defendant acted alone, the 4 burglaries were committed at times when the premises were empty, no planning or heavy equipment was involved, no damage was done to the premises and the first defendant was not a professional burglar. 

19.  For each of charges 1-4, I consider the appropriate starting point to be 2.5 years’ imprisonment.  Given the first defendant’s guilty plea, the sentence for each of charges 1-4 is reduced to 20 months’ imprisonment.

20.  For each of charges 7-9, given the amount stolen, I consider the appropriate starting point for each charge is 6 months’ imprisonment in respect of the third defendant.  Given his plea, the sentence for each of charges 7-9 is reduced to 4 months’ imprisonment.  As far as the first defendant is concerned, breach of trust was involved when he committed the offences of theft.  In the circumstances, the starting point for charges 7-9 should be enhanced by 1.5 months to 7.5 months.   Given the first defendant’s plea, the sentence for each of charges 7-9 is reduced to 5 months’ imprisonment.

21.  In the mitigation of the second defendant, counsel for the second defendant submitted that there was a delay in prosecution.  Having considered the nature of the offences, that the facts of this case is simple, all the defendants admitted the offences upon their arrest in April 2016 and that they were only charged in February 2018, I am satisfied that there was a delay in prosecution.  I consider this delay applies to all the defendants.  In the circumstances, I am prepared to reduce each of the sentences of charges 1-4 by 3 months and charges 7-9 by 1 month.

22.  Apart from the above, I do not see other mitigating factor justifying further reduction of sentence. 

23.  All the offences committed by the defendants are entirely separate and distinct offences.  In theory, their sentences should run consecutively. Taking into consideration the totality principles and the fact that the theft of money is part and partial of the burglary, I consider a total sentence of 29 months is sufficient to reflect the criminality of the first defendant’s act. The sentences of charges 1-4 and 7-9 in respect of the first defendant are to run as follows:

Charge 1: 17 months

Charge 2: 17 months, 4 months to run consecutive to charge 1

Charge 3: 17 months, 4 months to run consecutive to charges 1-2

Charge 4: 17 months, 4 months to run consecutive to charges 1-3

Charge 7: 4 months, wholly concurrent to charges 1-4

Charge 8: 4 months, wholly concurrent to charges 1-4 & 7

Charge 9: 4 months, wholly concurrent to charges 1-4 & 7-8

24.  The first defendant was in breach of suspended sentence when he committed the present offences.  In the circumstances, I order the suspended sentence to take effect in that 1 week of the sentence for KT/5530/14 to run consecutive to the sentence of this case.

25.  For the third defendant, the sentence is 3 months’ imprisonment.  He is currently serving a lengthy sentence in respect of a drug related offence.  The present offence is of a different nature to the drug related offence.  In the circumstance, I order that 1 month of the sentence of the present case to run consecutive to the current sentence he is serving.