HKSAR v. LEUNG HO YAN

DCCC 1270/2024

[2025] HKDC 660

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1270 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 8 counts of theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

Facts

Background

2.  The defendant was a former sales employee of “Chinese Arts & Crafts (H.K.)  Limited”, located on the G/F, Chinese Resources Building, 26 Harbour Road, Wan Chai (“Shop”).  He was hired on 18 February 2015 and was dismissed on 7 August 2023.

3.  In mid-April 2023, the manager of the Shop, Mr Yip (“PW1”), confirmed that there were no missing items.

4.  On 5 October 2023, the manager of the Shop, Mr Mok (“PW2”), found that 14 pieces of jewelry were missing, including: -

(a)  One wrist chain (valued at HK$56,683)  (corresponding to charge 1);

(b)  One wrist chain and one bracelet (valued at HK$31,440 in total)  (corresponding to charge 2);

(c)  One pair of earrings (valued at HK$15,657)  (corresponding to charge 3);

(d)  One pendant (valued at HK$32,600)  (corresponding to charge 4);

(e)  One ring and one wrist chain (valued at HK$62,410 in total)  (corresponding to charge 5);

(f)  One pendant (valued at HK$7,956)  (corresponding to charge 6);

(g)  One wrist chain and one pair of earrings (valued at HK$25,298)  (corresponding to charge 7); and

(h)  One pair of earrings, two wrist chains and one ring (valued at HK$55,961)  (corresponding to charge 8).

5.  PW1 suspected the defendant of stealing from the Shop, since the defendant had been staffed at the Shop most of the time.  Consequently, the case was reported to the police.

Charges 1 - 4

6.  A pawnshop check at Tung Tak Pawn Shop, located at 367 Hennessy Road, Wan Chai, revealed that the defendant pawned item 3(a)  on 27 May 2023 (charge 1); item 3(b)  on 9 June 2023 (charge 2); item 3(c)  on 17 June 2023 (charge 3); and item 3(d)  on 29 June 2023 (charge 4).

7.  Items 3(a)  - (d)  were later seized from Tung Tak Pawn Shop. Additionally, Tung Tak Pawn Shop’s record books contained relevant entries of the defendant’s full Chinese name, HKID number and residential address.

Charges 5 - 7

8.  A pawnshop check at Shing Lung Pawn Shop, located at 192 - 198 Hennessy Road, Wan Chai, revealed that the defendant pawned item 3(e)  on 12 May 2023 (charge 5); item 3(f)  on 12 June 2023 (charge 6); and item 3(g)  on 24 June 2203 (charge 7).

9.  Items 3(e)  - (g)  could not be recovered.  However, Shing Lung Pawn Shop’s record books contained relevant entries of the defendant’s full Chinese name, HKID number and residential address.

Charge 8

10.  Item 3(h)  could not be recovered, and records of it being pawned could not be located in any pawn shops.

Arrest of the Defendant and the Investigation

11.  At around 1315 hours on 3 November 2023, DPC 25103 (“PW3”)  arrested the defendant for “Theft”.  Under caution, the defendant admitted to pawning the jewelry pieces from the Shop because he was in need of money.  He had originally intended to redeem the jewelry pieces.

12.  A video-recorded interview was conducted with the defendant on 3 November 2023 by PW3.  During the interview, the defendant admitted, inter alia, the following under caution: -

(a)  The jewelry pieces from the Shop that the defendant pawned included some bracelets, wrist chains and jade pendants;

(b)  The defendant worked as a sales at the Shop from May to June or July 2023, but could not recall the exact employment dates. He was later dismissed;

(c)  The defendant had stolen items 3(a)  - (h)  from the Shop, the total cost of the items were around HK$200,000. After stealing the items, the defendant pawned them on the same day at two pawn shops in Wan Chai from May to June 2023; and

(d)  Items 3(a)  - (d)  were shown to the defendant. He admitted to stealing and pawning them.

Conclusion

13.  At all material times, while being an employee of the Shop, the defendant stole items 3(a)  - (h)  (valued at HK$288,005 in total), which were properties of the Shop.

Previous Convictions

14.  The defendant has 2 previous convictions, both were related to dishonesty.  He was convicted of one count of theft in 2015.  In 2024 he was convicted of one count of fraud and was sentenced to 2 months’ imprisonment.

Background Report

15.  The court obtained a background report on the defendant prior to sentence.

16.  The contents of the report indicated that the defendant was 41 years of age at the time of the interview.  He lived with his wife and their 7 months old son at his parents-in-law’s residence.  The defendant completed a Certificate in Culinary Arts programme after completing Form 5 secondary education.

17.  The defendant worked as a cook at different hotels from 2002 to 2005. In 2005 he worked as a salesman at the Chinese Arts & Crafts Company.  In 2007 he worked at the Prince Jewelry & Watch Company.  He was dismissed in 2014 by Prince Jewelry after his arrest for the offence of theft.  From 2014 to 2016, the defendant worked for a mainland company as a marketing and sales director.  In 2022 he ceased operation of his company and returned to work in Hong Kong after the outbreak of Covid.  In June 2023 he returned to work as a salesman at the Chinese Arts and Crafts Company, earning a monthly salary of HK$20,000. His employment was terminated in September 2023 because of his frequent absence from work and application for sick leave.

18.  The defendant attributed the commission of his first offence of theft to greed and grey areas in retailing.  In respect to the conviction of fraud in 2024, he failed to refund payment to his customer when he failed to fulfill the customer’s order of a Rolex watch.  A pattern of engagement in grey area retailing and high risk business ventures were apparent in the defendant’s business dealings which led him to repeated financial failures.  Instead of learning from experience, he chose to repay his debts by committing thefts.

19.  For the present offence, he admitted that he owed payments to the supplier of his free-lance business.  He stole and pawned some of the jewelry pieces from Chinese Arts & Crafts for HK$30,000.  He admitted inadequacy in his financial management which resulted in financial difficulties.  He expressed remorse for his offence.  He promised to engage in proper employment and not to re-offend in the future. 

20.  His wife and mother were committed to supporting the defendant in his rehabilitation and trust that he would not re-offend.

Mitigation

21.  In mitigation, the defence submitted that the present offences involved the same victim company and were committed within a short period of time. Police was successful in recovering a large proportion of the stolen property. It was submitted that the court should treat all 8 offences as a single offence.

22.  The defence accepted that the offences involved a breach of trust and agreed that the guidelines laid down in the authority HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 were applicable in the present case.  The defence stated that the appropriate starting point after trial for cases involving a stolen amount between HK$250,000 to HK$1,000,000 would be 2 to 3 years’ imprisonment, while for sums of less than HK$250,000 would be less than 2 years.  It was further submitted that Cheung Mee Kiu was decided in 2006, if inflation were taken into account then the equivalent value of goods stolen would place the defendant in the lowest category.  In relation to the issue of the calculation and the appropriate level of inflation to be taken into account, the defence conceded that they did not have any relevant information and/or further submission.

23.  It was submitted that the defendant admitted his guilt upon arrest and fully cooperated with the police.  He was clearly remorseful for his actions.  His remorse was apparent when he chose to be remanded in custody prior to sentence. The possibility of re-offending was minimal.  The defendant was determined to return to work as a productive member of society, a good husband and father.

Sentencing Consideration

24.  Theft is a serious offence, especially when it involves breach of trust. In the present case, the total value of goods stolen was HK$288,005.  The defendant stole pieces of jewelry from his employer, the Chinese Arts & Crafts Company which constituted a breach of trust.

25.  According to the guidelines for theft cases involving the element of breach of trust, the appeal court in Cheung Mee Kiu indicated where the total value of goods stolen amounted to HK$250,000 to HK$1,000,000, the appropriate range of sentence should be within 2 to 3 years.

26.  I have considered the circumstances of the case, the overall criminality of the defendant, the total value of goods stolen and mitigation advanced by defence counsel.

27.  The defendant was employed by the victim company as a salesman in June 2023.  It was not a position in which the company would repose a high level of responsibility and/or trust.  The charges were committed within a relatively short period of approximately 2 months.

28.  The total value of goods stolen by the defendant was HK$288,005, while stolen items valued at HK$136,380 were recovered, other items valued at HK$151,625 were not recovered thereby causing loss to the victim company.

29.  The defendant had 2 previous convictions, both of which involved dishonesty.  His first conviction was in 2015, almost 10 years ago.  However, his last conviction was in 2024.  It was submitted that if the case was heard with the present case, it would be likely the court would order a concurrent sentence.

30.  The defendant is entitled to one third deduction of his sentence to reflect his guilty pleas.  The court considers, as a starting point, a sentence of 27 months’ imprisonment to be appropriate.

31.  For charge 1, I adopt a starting point of 24 months’ imprisonment, after one third deduction, I sentence the defendant to 16 months’ imprisonment.

32.  For charge 2, I adopt a starting point of 18 months’ imprisonment, after one third deduction, I sentence the defendant to 12 months’ imprisonment.

33.  For charge 3, I adopt a starting point of 15 months’ imprisonment, after one third deduction, I sentence the defendant to 10 months’ imprisonment.

34.  For charge 4, I adopt a starting point of 18 months’ imprisonment, after one third deduction, I sentence the defendant to 12 months’ imprisonment.

35.  For charge 5, I adopt a starting point of 27 months’ imprisonment, after one third deduction, I sentence the defendant to 18 months’ imprisonment.

36.  For charge 6, I adopt a starting point of 12 months’ imprisonment, after one third deduction, I sentence the defendant to 8 months’ imprisonment.

37.  For charge 7, I adopt a starting point of 15 months’ imprisonment, after one third deduction, I sentence the defendant to 10 months’ imprisonment.

38.  For charge 8, I adopt a starting point of 24 months’ imprisonment, after one third deduction, I sentence the defendant to 16 months’ imprisonment.

39.  The offences were the same in nature and committed within a short period of time.  I consider a concurrent sentence to be appropriate, I order the imprisonment terms of charges 1 to 8 to be served concurrently.  The defendant is sentenced to 18 months’ imprisonment.