HKSAR v. XIONG LIANG AND ANOTHER

DCCC 257/2019

[2019] HKDC 1397

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 257 OF 2019

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REASONS FOR SENTENCE

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CHARGES

1.  This case concerns with 3 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 [Charges (1), (2) and (3)] and one charge of going equipped for stealing, contrary to section 27(1) of the Theft Ordinance, Cap 210 [Charge (4)].

2.  The 1^st defendant pleaded guilty to all Charges (1), (2), (3) and (4).  The 2^nd defendant pleaded guilty to Charges (3) and (4).

FACTS

Charge (1)

3.  The 1^st defendant entered into Hong Kong from the mainland on the 18 January 2018.  He appeared at the victim shop of Charge (1) [hereinafter referred to as “Shop (1)”] the following day.  He posed himself as a diamond dealer and examined packets of diamond presented to him by the keeper of Shop (1).  During the examination, the 1^st defendant skillfully swapped one of the packets with a packet of cubic zirconia.  The 1^st defendant then used some blue papers to wrap and seal the packets of diamonds that he had examined together with the cubic zirconia.  He claimed that he intended to buy those diamonds and would pay for them later.  He told the shopkeeper of Shop (1) that he needed to meet his sister to get some cash for payment.  He then left Shop (1) and never returned.  Shortly after the 1^st defendant’s departure, the shopkeeper of Shop (1) opened the wrapped packets and found that one packet of diamonds weighing 150 carats, worth US$53,250, had been swapped with a packet of cubic zirconia.  The 1^st defendant went back to the mainland on the same day.  

Charge (2)

4.  Close to the mid-day of the 23 May 2018 the 1^st defendant entered into Hong Kong from the mainland.  He then appeared at the victim shop of Charge (2) [hereinafter referred to as “Shop (2)”] some two hours later.  Again, he posed himself as a diamond dealer and examined packets of diamond presented to him by the shopkeeper of Shop (2).  With almost identical modes operandi as Charge (1), he swapped one packet of diamonds weighing 162.03 carats, worth US$61,247.34 with a packet of cubic zirconia.  The 1^st defendant went back to the mainland on the same day.

Charge (3)

5.  At 10:19 am on the 6 September 2018, both the 1^st defendant and the 2^nd defendant entered into Hong Kong from the mainland.  They then appeared at the victim shop of Charge (3) [hereinafter referred to as “Shop (3)”] about two hours later.  They posed themselves as diamond dealers.  Sales representative of Shop (3) provided some packets of diamond for the 1^st defendant to examine.  The 1^st defendant then used some blue papers to wrap and seal the packets of diamonds that he had examined and claimed that he intended to buy those diamonds and would pay for them later.  Both defendants then said that they had to get some money for payment.  They left Shop (3).  Both defendants went back to the mainland on the same day at 10:14 pm.

6.  During the defendants’ stay at Shop (3) on 6 September 2018, its representative had prepared 2 invoices listing out the diamonds that the 1^st defendant had examined and purportedly intended to purchase; and the 1^st defendant signed on one of them.

7.  At 11:40 am on the following day, i.e. 7 September 2018, both defendants entered into Hong Kong from the mainland again.  They re-appeared at Shop (3) some three hours later.  The 1^st defendant asked for the diamonds that had been examined by him the previous day.  The 1^st defendant unsealed the blue paper packets one by one and checked them again.  During the examination, the 1^st defendant skillfully swapped one of the packets with a packet of cubic zirconia.  The 2^nd defendant sat next to the 1^st defendant throughout this examination process.  The 1^st defendant then claimed that he needed to get some cash from a friend for payment.  The 1^st defendant left Shop (3).  The 2^nd defendant stayed there for another 2 minutes and then used “cigarette break” as an excuse to leave.  They never returned to Shop (3) thereafter.  Shortly after the defendants’ departure, it was found that one packet of diamonds weighing 110.7 carats, worth US$53,136, had been swapped with a packet of cubic zirconia.  Both defendants went back to the mainland at around 4:19 p.m. on the same day.

Charge (4)

8.  CCTV footages of Shop (2) depicting images of the 1^st defendant on 23 May 2018 were circulated amongst Indian diamond sellers via social media.

9.  At 10:02 am on 18 October 2018, both defendants entered into Hong Kong from the mainland.  They then appeared at the victim shop of charge (4) [hereinafter referred to as “Shop (4)”] the following day.  Sales representative of Shop (4) recognised the 1^st defendant from the said CCTV footages of Shop (2).  He thus asked the defendants to come back later.  The defendants did exactly that. Meanwhile, representatives of Shops (1) to (3) were alerted by the sales representative of Shop (4) and as a result of which had gathered at Shop (4) shortly afterwards.  By the time the defendants returned to Shop (4), they had been confronted by representatives from all four shops.  The police arrived shortly after that and eventually led to the arrest of the defendants.  It was subsequently found inside a bag carried by the 1^st defendant 12 packets of cubic zirconia, some blue papers, some false business registration documents of a purported Shenzhen jewellery company and a copy of an invoice issued by a diamond seller shop.  It was also found inside a bag carried by the 2^nd defendant a copy of an invoice, issued by Shop (3) on 6 September 2018 and signed by the 1^st defendant.

The stolen diamonds

10.  None of the stolen diamonds of Charges (1), (2) and (3) were recovered.

MITIGATION

The 1^st defendant

11.  The court is told by Mr Chu who represents the 1^st defendant, that he is a 33-years-old married man who was living with his wife, his 4-years-old daughter and his 72-years-old father is Sichuan, the mainland prior to his arrest.

12.  The 1^st defendant used to be a diamond inlay worker earning RMB4,500 per month, a job which he was doing since he was 16 years of age.

13.  He has had a clear record in Hong Kong prior to his current convictions.

14.  Mr Chu urged on behalf of the 1^st defendant that as he was not a well-educated person, he committed the present offences due to his stupidity as he thought it would be an easy way to make quick money.  The court was also told that he was the sole breadwinner of the family and he committed the offences with a view to providing better life for his family.  The 1^st defendant is now remorseful towards his misdeeds and promised not to reoffend.

15.  The 1^st defendant was honest enough to accept, through Mr Chu, that it was him who recruited the 2^nd defendant; and the 1^st defendant was the main culprit in the instant case.

The 2^nd defendant

16.  The 2^nd defendant is a 31-years-old married man.  He too was from Sichuan.  Prior to the arrest in the present case, he was living with his wife, his 7-years-old daughter and his father in Sichuan, the mainland.

17.  The 2^nd defendant received secondary education in the mainland.  He then joined the army for 2 years.  Thereafter he worked as a security guard, a factory worker as well as a pharmacy shop salesperson.  He was the sole breadwinner of the family.

18.  Insofar as the commission of the offences in the instant case, the 2^nd defendant initially did not know that the 1^st defendant was involved in acts of swapping diamonds, at jewellery shops, with fake stones.  It was only in August 2018 that he was informed by the 1^st defendant of the same.  He was tempted by the money which he required, in particular, for his father’s operation fees in an attempt to cure the elderly gentleman’s long term pelvis pain.  This court was also told that after he assisted the 1^st defendant in committing acts relating to Charge (3), the 2^nd defendant had received a reward of RMB40,000 from the 1^st defendant.

19.  Ms Li, who acts on behalf of the 2^nd defendant, urged this court to consider that the 2^nd defendant is a man with a clear record.  He is now very remorseful.  The role he played was a minor one as he was simply sitting next to the 1^st defendant.  Mitigation letter written by the 2^nd defendant as well as a medical report of the 2^nd defendant’s father were also submitted.

SENTENCE

20.  This court accepts that both defendants are remorseful and in view of their timely pleas they would both receive a full one-third sentencing discount to reflect the same.

21.  Charges (1) and (2) were committed by the 1^st defendant alone.  This court is prepared to accept that, in terms of seriousness, they would not be as high as Charge (3), a charge which was committed by both defendants.

22.  This court, however, must take into account that Charges (1), (2) and (3) were obviously pre-planned and executed in a very professional manner.  The 1^st defendant was making good use of his know-how in the diamond industry in the course of committing Charges (1), (2) and (3).  Insofar as the 2^nd defendant was concerned, he complimented the 1^st defendant perfectly in his role to distract the shop representative of Shop (3) during the commission of Charge (3).

23.  This court must also take into account that none of the stolen diamonds of Charges (1), (2) and (3) were recovered.

24.  Further, there is a clear international element to all the charges involved in the instant case.

25.  Insofar as Charge (4) is concerned, it was a professional criminal act on the part of the defendants.

26.  The following authorities were cited by the parties:-

HKSAR v Cheng Xiangrong & Another (CACC 42/2016)

HKSAR v Tsogbadrakh Otgon (CACC 393/2013)

HKSAR v Tang Wing Pui (HCMA 921/2008)

The Queen v Tsang Wing Ming CACC 315/1989

HKSAR v Luo Wude CACC 204/2006

27.  Having considered all the circumstances in the instant case, the submissions made by the parties and the relevant legal principles:-

(1) the appropriate starting point for each of Charges (1) and (2) is three years’ imprisonment.

(2) the appropriate starting point for Charge (3) is three years and nine months’ imprisonment.

(3) the appropriate starting point for Charge (4) is one-year imprisonment.

28.  As mentioned, the defendants are entitled to one-third discount for their respective guilty pleas.  This court however cannot see any of their personal and family background warrants further reduction.

29.  For the 1^st defendant, for each of Charges (1) and (2), he is sentenced to two-years imprisonment.  For Charge (3) he is sentenced to two-years-and-six-months’ imprisonment.  For charge (4), he is sentenced to eight months’ imprisonment. 

30.  As for the 2^nd defendant, for Charge (3), he is sentenced to two-years-and-six-months’ imprisonment.  For charge (4), he is sentence to eight months’ imprisonment.

31.  Charges (1), (2), and (3) involved properties belonging to different companies on separate occasions.  As to Charge (4), although it did not involve any stolen property, it too was committed on an occasion separate from Charges (1) to (3).  Having regard to the totality principle, this court will order:-

(1) that two months of the sentence for Charge (1) be served consecutively to the sentence in respect of Charge (3);

(2) two months of the sentence for Charge (2) be served consecutively to the sentence of other Charges; and

(3) one month of the sentence for Charge (4) be served consecutively to the sentence of other Charges.

ORDER

32.  It is ordered that the sentences of the 1^st defendant are as follows:-

Charge (1): 2 years’ imprisonment [2 months of which are to be served consecutively to Charge (3)];

Charge (2): 2 years’ imprisonment (2 months of which are to be served consecutively to sentences of other Charges);

Charge (3): 2 years and 6 months’ imprisonment; and

Charge (4): 8 months’ imprisonment (1 month of which is to be served consecutively to sentences of other Charges).

Total sentence for the 1^st defendant is therefore 2 years and 11 months’ imprisonment.

33.  It is ordered that the sentences of the 2^nd defendant are as follows:-

Charge (3): 2 years and 6 months’ imprisonment; and

Charge (4): 8 months’ imprisonment [1 month of which is to be served consecutively to sentence of Charge (3)].

Total sentence for the 2^nd defendant is therefore 2 years and 7 months’ imprisonment.