HKSAR v. YOUNG WILLIAM LEE YURI

DCCC 250/2019

[2019] HKDC 1379

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 250 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one count of theft.

The facts of the case

2.  On 6 March 2018, two delivery vehicles and an armoured vehicle arrived at the pavement outside Kaiser Estate for delivery of jewellery which had been packed in a locked luggage.  One package of jewellery containing 2,043 pieces of jewelleries valued at around HK$2.2 million (“the stolen jewelleries”) was found missing.

3.  Review of the CCTV footage confirms that the defendant took one unattended blue plastic bag containing the stolen jewelleries.  Later on, he disposed of the blue plastic bag.  He then pushed a black suitcase and left the scene, and he went to a hotel room with the black suitcase.

4.  He left Hong Kong on 8 March 2018.  Upon his return to Hong Kong in December 2018, he was arrested.  The defendant now admits that he stole the stolen jewelleries.

Background of the defendant

5.  The defendant is a British National and is now 58 years of age.  He is a single man and has no children.  His mother, 83 years old, is now living in London.  His girlfriend separated him since his arrest.  Before his arrest, he was self-employed in buying and selling furniture with a monthly income of about 2,000 Sterling.  Due to his incarceration since December 2018, he lost his home in London and is expecting to find a new accommodation upon release from prison in this case.  He has a clear record and he wrote a letter expressing his remorse.

Mitigation

6.  Mr Marray, counsel for the defendant, submits that the theft was an opportunistic one.  In March 2018, the defendant went to Hong Kong as a tourist and to meet his girlfriend.  At the material time, the guards had left the items on the pavement unattended.  The defendant took advantage of the situation and picked up one of the bags and left.  He wore a face mask because he suffered from allergies.  He put on a Muslim hat due to religious belief.

7.  On opening the bag in the hotel room, he found the stolen jewelleries but considered them as costume jewellery, so he discarded all of them without realising the value.  I do not accept that the present case can be categorised as an opportunistic one.  The face mask and the Muslim hat could not be a pure coincidence in light of what happened at the material time, in particular the defendant stood near one of the delivery vehicles for about nine minutes before taking the stolen jewelleries.  Also, there were security guards at the material time and it would be impossible for the defendant to believe that what he took away were simply costume jewellery.  Therefore, I do not accept these mitigation as put forward by Mr Marray in his written submission, and at the end Mr Marray tells me that the defendant decided not to give evidence and will not pursue these mitigation factors anymore.

8.  I found that it was a pre-planned theft.  For reasons unknown, the stolen jewelleries was unattended and in that circumstances I accept it was committed at the negligence of the security.

9.  There is no sentencing guideline for this kind of theft.  I have considered the case of HKSAR v Cheng Xiangrong [2017] 5 HKLRD 219 which involved stealing a diamond.  The defendants in that case intended to steal a diamond worth US$130,000 by swapping it with a fake diamond at the jewellery fair.  The Court of Appeal, taking into account of the gravity of the offence, said that the starting point of 4 years’ imprisonment is appropriate for a similar case without aggravating factors.  That case was a cross-border organised and planned crime committed by more than one defendant acting in concert.

10.  Obviously the facts in the present case is quite different.  I think that the present case should attract a lower starting point than 4 years’ imprisonment.  I have also considered a 3 to 4 years’ imprisonment as appropriate for theft of $1 million to $3 million involving a breach of trust (see the case of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776).

11.  In the present case, there is no evidence that the defendant came to Hong Kong for a specific purpose of committing any offence.  There is no suggestion that he committed the present case with other persons.  Also, he was unable to commit this offence without the negligence of the security guard.  No breach of trust involved.  No violence involved.  However, given the amount involved exceeds HK$2 million, all the stolen jewelleries were not recovered and the defendant was on face mask and Muslim hat at the time of the commission of the offence, I found that a proper starting point shall be 3 years and 3 months’ imprisonment.

12.  I have considered all the mitigation, but I do not accept that the personal background of the defendant warrants any reduction in sentence.  Given the usual one-third discount for a guilty plea, the defendant is sentenced to 2 years and 2 months’ imprisonment.