HKSAR v. IENG WAI SENG, KELVIN

DCCC 1061/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1061 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of theft involving the theft of 34 pieces of jewellery.

2.  The agreed background of the offence is that the defendant was employed by the victim company and the company operated out of a retail store at the Police Married Quarters in Sheung Wan.  The defendant’s employment commenced on 1 August 2015 and he was the sole employee of the shop, entrusted with the keys and passcodes of the safe of the shop where the jewellery was stored.

3.  On 21 August 2015, the defendant left Hong Kong, and it was found on that day that a total of 34 pieces of jewellery had gone missing and the matter was reported to the police.  19 of those pieces of jewellery were later recovered from four different pawnshops.  The defendant had pawned those 19 pieces of jewellery for some $36,700 and that had been between 6 and 20 August. 

4.  The defendant eventually returned to Hong Kong on 13 October 2015 and was arrested and cautioned.  And he made a video-recorded interview and he made a full admission in that recorded interview.  He admitted the jewellery recovered from the pawn shops had been stolen from the shop by him and pawned by him.

5.  He started stealing around 7 August when he took away a ring and then took about 30 more pieces of jewellery around 14 August 2015.  He pawned some jewellery in pawnshops in Hong Kong, then ran away to mainland China when he realised the police were aware of what he had done, and the rest of the jewellery were pawned in pawnshops in China.  He spent all the proceeds of the stolen properties which were money from the pawning and admitted he had stolen those 34 pieces of jewellery.

6.  The agreed fact as far as the 34 pieces of missing jewellery is that they are valued at around $1 million.  I have in fact been handed a document which says, without discount, the proposed sale price of the jewellery which should be at $1,091,500 and the actual direct cost of the jewellery which is $758,942. 

7.  And the defence has submitted in terms of the facts for sentencing that it may well be onerous to take the sale price of the jewellery as the price of the overall price of the goods because it is well known, they say, that jewellery is discounted when it is sold.  Certainly if a jeweller wants to sell it, it can be expected for there to be a discount in the region of 10 to 15 per cent and that is the normal trade practice and would be expected by a customer.  So they say a valuation somewhat under the 1 million, at around 930,000 would be more appropriate to take as the valuation for sentencing.  I will deal with that in a minute.

8.  As far as the defendant, the defendant agreed all those facts.  He is convicted on the basis of that.  He is a 31-year-old man, secondary education, has worked as a salesman in various companies between the age of 19 and 30.  He is currently serving a sentence of imprisonment.  He lives with his mother, I understand, in a public housing unit in her name.  He has a wife in China, but no children. 

9.  The defendant has three previous recorded convictions.  The conviction in 2009 is not really material to what I am dealing with today.  Two convictions recorded in 2015, one for theft which the defendant was sentenced to 6 months’ imprisonment; another for theft for which the defendant received a 3 months’ sentence, two months of which were to be served consecutively to the first offence, giving a total of some 8 months’ imprisonment which the defendant is now serving. 

10.  Third offence recorded was in fact committed in 2013 and the defendant had apparently been charged to court in respect of that offence and then had jumped bail.  Notwithstanding that he was able to commit further offences and also to leave Hong Kong in respect of these matters, but in any event he finally was brought to justice in respect of those matters in 2015. 

11.  As far as his mitigation is concerned, he prays in aid to plead guilty for which one would expect in the normal course of events a discount of one-third of sentence.  He also refers to the value of the goods which will be relevant to the application of the guideline of sentence. And, as I said earlier, he submits that a lower figure than 1 million should be taken which would put the case into a lower bracket for sentencing.

12.  It is common ground as far as the brackets for sentencing are concerned that a valuation of between one to three million, a guideline sentence between 3 to 5 years should be appropriate.  Of course, in this case it would be at the bottom of that guideline sentence.  So, well, if you take a valuation of 1 million, then a sentence of 3 years’ imprisonment would be appropriate. 

13.  The bracket below that is quite a broad bracket.  That varies between 250,000 to 1,000,000 where the guideline sentence would be from 2 to 3 years’ imprisonment.  Obviously, even on the valuation that has been addressed to me by the defence, it would be at the higher end of that bracket but not necessarily on the 3-year figure. 

14.  I also have to bear in mind the overall totality of sentencing here because the defendant already has a sentence that he is serving and it may well be that if the 2015 offence and even the 2013 offence had been dealt with together, that would have been taken into account by the sentencing court in regard to the overall totality.  Of course those matters have been dealt with in the Magistrates’ Court, so it is not appropriate to bring them into this court in the first place.  But I still have to consider that in relation to the overall totality of sentence in determining to what extent these sentences should run concurrently or consecutively to those existing sentences.

15.  Dealing with the appropriate point to take on the guideline in this sentence.  It would be fair in sentencing in this case to adopt the figure put forward by Miss Chan for the defence; it is a figure under 1 million, but not substantially under it.  So I would say this case falls on its face within the guideline of between 2 to 3 years of imprisonment, at the upper end of that guideline.

16.  What I shall take is the starting point at this point of sentence of 33 months’ imprisonment.  However, there are aggravating features in this offence that I must also take into account.  One is the fact the defendant has previous convictions of dishonesty, so the defendant has not been deterred by previous sentencing.  Although an argument against that of course is that the defendant committed these offences or sentenced for these offences after he had committed the instant offences I am dealing with, at least these sentences were imposed in October 2015 whereas the defendant had committed the offences in 2013 and 2015 before his sentencing for this matter, so to say that the defendant failed to be deterred by his sentencing would be inaccurate in this case.  But it does show part of a pattern of offending that I believe I must take into account when determining the sentence because at least one of the offences has been committed prior to the offences that he committed in respect of these matters.

17.  Also is the fact that the defendant was released on court bail in 2013 and despite not being apprehended until he voluntarily surrendered himself, then he has effectively been on bail ever since and has committed these offences whilst on bail which is an aggravating factor.

18.  Taking all those factors into account, I would say they would add a further 3 months to the sentence that I shall impose.  So my actual starting point for sentence will be 36 months’ imprisonment. Defendant is entitled to one-third discount, so the sentence in respect of this offence should be one of 2 years’ imprisonment; 24 months.

19.  Of importance in this case is how I order those sentences to be run because I must indicate while sentencing at this point whether they are to be run concurrently or consecutively, or partly concurrently or partly consecutively to the offences which he is currently serving.  Now, I have already indicated that it may well be that the overall totality of these sentences would have been considered if they had been sentenced together, and so I think it is appropriate that I also make that evaluation when sentencing the defendant today.

20.  What I actually consider is that - you pardon me, and I need to think for a minute about how this would operate in terms of -- in the sentencing because part of the sentence has already been served, hasn’t it?  Yes, from October.  What I believe the correct approach is that 4 months of the existing sentences the defendant is serving should be served -- it will be 4 months consecutively and 4 months concurrently to the sentence the defendant is now serving.  However I do not think that is appropriate because the defendant has actually served part of the sentence already. 

21.  Given the length that the defendant has actually served of those sentences, I am going to order the sentence to be served concurrently.  This sentence is served concurrently to his existing sentence of imprisonment which in fact -- in fact I would need to do that, or else they would be served consecutive -- it would be served consecutively.  He would have to complete his existing sentence and then the sentence would then be served following that.  But what I shall do is to order they can run together, given the length of time the defendant has already served in respect of his existing sentence and the fact that it should be counted in the overall totality of this sentence.  Is that clear?  Do you understand what I have done?

MISS CHAN: Yes. Yes.

22.  It is to be served concurrently.