HKSAR v. YANG HAO

DCCC 837/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 837 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.  On 13 November 2015, the defendant pleaded guilty to one charge of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 (“the Ordinance”) and section 159G of the Crimes Ordinance, Cap 200 (Charge 1) and to one charge of theft, contrary to section 9 of the Ordinance (Charge 2). 

FACTS OF THE CASE

2.  The defendant entered Hong Kong from the mainland on the morning of 24 June 2015.  That afternoon, he obtained an entrance permit at the registration counter of Hong Kong Convention and Exhibition Centre in Wanchai, at which the Hong Kong Jewellery and Gem Fair was conducted.  The next morning, he attended the Fair again and wandered around Booth 626 in Hall 3G; the Booth was being operated by Royal Trading Company Limited for jewellery exhibition.  The defendant stole four brooches there valued at US$3,360.  (Charge 2) 

3.  The defendant next presented himself at Booth 315 in Hall 3D, where luxury items belonging to Galaxy Diamonds (Belgium) Bvba were displayed.  He asked a sale representative Mr Kumar of Galaxy Diamonds to show him a 7.88-caret diamond valued at HK$1.3m.  Not being able to communicate in English, the defendant requested Mr Kumar to speak over the phone with a friend of the defendant’s.  Next, the defendant took out a black folder from his right pocket and asked Mr Kumar to place the diamond on the defendant’s left hand.  His request was refused and he was told to put his folder away, which he did and in the course of which Mr Kumar saw a glint in the defendant’s right hand.  Mr Kumar got hold of the defendant’s right hand and found him holding a fake diamond (subsequently ascertained to be a 3.46-gramme synthesized diamond stimulant); the case was reported to the police.  (Charge 1) 

4.  Under caution, the defendant admitted the offence in Charge 2; in a subsequent cautioned interview, he said he had intended to replace the real diamond in the Fair with the diamond stimulant – which he had taken into Hong Kong from the mainland – because he was in need of money.

MITIGATION

5.  The defendant, a mainland resident, is 23 years old.  He has had a clear record in Hong Kong prior to his current convictions.  He has received education up to secondary level on the mainland and has worked at a supermarket, making RMB2,000 a month.

6.  In his plea in mitigation, Mr Louis Fung appearing for the defendant submitted that the defendant’s parents had both been injured, his father in the thumb, his mother in the knee, and that the defendant’s younger brother had recently entered the university and needed some RMB20,000 to pay for the school fees.  Mr Fung explained that the defendant had acted foolishly in coming to Hong Kong to commit the two offences due to his financial needs. 

7.  Mr Fung stressed that the diamond and the brooches concerned had been recovered and that the defendant had acted by himself in the offending.  He sought to distinguish his client’s case on these two grounds from the case relied on by Mr Alan Chan, Public Prosecutor, namely HKSAR v Padilla Gerarod Gonzaga and ors[1].

8.  By his handwritten letter, the defendant expressed remorse to the court and said he regretted he would not be able to look after his parents as a result of his criminal acts in Hong Kong.  He vowed to turn over a new leaf and asked for a lenient sentence.

REASONS FOR SENTENCE

9.  The case of HKSAR v Padilla Gerarod Gonzaga and ors[2] involved a total of five defendants, all of whom were visitors from the Philippines.  They attended an international jewellery show at Hong Kong Convention Centre and stole a diamond from a showcase.  The Court of Appeal said in that case:-

“12. The first point taken by Mr Tsz on behalf of the applicants is that the starting point of three years is manifestly excessive. We do not agree. This was the theft of a diamond valued at $251,682; and we think a starting point of three years was unobjectionable.”[3]

10.  The Court found that the trial judge was not entitled to enhance the sentence, on the basis on which he acted, under the Organized and Serious Crimes Ordinance, Cap 455, but the Court in the end adopted a starting of four years on the following basis:

“22. The court was however entitled – indeed, duty bound – to give effect to features in aggravation of the offence of theft, though without recourse to the Organized and Serious Crimes Ordinance. The aggravating features were the international element and the facts that the offence was planned and committed by several persons.

23. In our judgment, those aggravating features in the context of a public exhibition of expensive jewellery, warranted in each case a sentence, prior to discount for mitigating features, of four years’ imprisonment.”[4]

11.  In HKSAR v Tsogbadrakh Otgon[5], five Mongolian females acted in concert in circumstances almost identical to those in HKSAR v Padilla Gerarod Gonzaga and ors and stole diamonds and other luxury items worth in excess of US$89,000.  The Court of Appeal affirmed a starting point of four years’ imprisonment, taking into account the international element, the planning and organisation of the offence (Charge 1 in that case), and the involvement of multiple offenders in its commission.  In addition, the Court in that case approved a 3-month imprisonment on account of multiplicity of offences:

“31. As indicated by Judge Chan, and endorsed by Lunn JA, Charge 2 involved a different victim, albeit that the offence occurred on the same day and in the same general area, it was entirely proper to order 3 months of the 3 1/2 years’ imprisonment to run consecutively to the 4 years’ imprisonment imposed in Charge 1.”[6]

12.  Turning to the instant case, the defendant acted alone in the commission of the two offences, offences which did not involve a marked degree of planning and organization.  The presence of a high degree of planning and organisation in the commission of an offence is invariably an aggravating factor, the absence of which does not, in the court’s view, necessarily make the offence significantly less serious, particularly where there is a strong reason to deter those who might be of a like mind as the accused – whether acting alone or in concert with others.

13.  The salient feature (thus constituting the most significant consideration in sentencing) common in the two Court of Appeal cases referred to above and that of the defendant’s  is that the offences took place in a public exhibition of expensive jewellery. Such an exhibition deserves special protection; a publicised event as it is, it carries with it the inherent danger that thieves and fraudsters are likely to be attracted to try their luck there, as the defendant did in this case.  A sentence with clear and strong deterrence is called for.

14.  The diamond involved in the first charge in this case was worth HK$1.3m, which was in excess of five times the value of the items concerned in HKSAR v Padilla Gerarod Gonzaga and ors and more than twice of the worth of the valuables in HKSAR v Tsogbadrakh Otgon.  The sentence in respect of theft, a financial crime, must be such as would adequately reflect the amount involved.  In addition, there is a clear international aspect the defendant’s case.

15.  There does not appear, at common law, to be any rules that the sentence in an attempt case should be lesser than the sentence for the corresponding substantive offence.  In The Queen v Vy Van Kien and anor[7], a case of theft, Penlington JA (sitting as an additional High Court Judge) said: “There are two factors which with this type of offence seem to me to be irrelevant to sentence.  One is whether there was an attempt, as against the actual offence.  Clearly this has in the past made no difference to sentence and quite rightly so.” (see, for other types of offences, HKSAR v Chiu Kwok-wai[8], HKSAR v Nguyen Quyet-tam[9], and HKSAR v Chang Chio-fun[10])

16.  In all these circumstances, the appropriate starting point for each of the two charges of which the defendant stands convicted is three years and nine months’ imprisonment.

17.  The defendant is entitled to one-third discount for his guilty pleas.  Little in the defendant’s personal and family background affords viable or significant mitigation.   For each of Charges 1 and 2, he is accordingly sentenced to two and a half years’ imprisonment.

18.  Having regard to the totality principle and given that the two offences involved property belonging to different companies, it is ordered that two months of the sentence for the second charge be served consecutively to the sentence in respect of the first charge, making a final sentence of two years and eight months’ imprisonment.

CONCLUSION

19.  For the offences in Charges 1 and 2, of which the defendant stands convicted, he is sentenced to two years and eight months’ imprisonment.