HKSAR v. ANDO HIROKI also known as TAKEUCHI HIROKI

DCCC 969/2017

[2018] HKDC 317

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 969 OF 2017

-------------------------

--------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

Charge

1.  The defendant was charged with one count of theft by stealing cash of ¥28 million Japanese yen from another.

Plea

2.  He pleaded guilty and was convicted upon admission of the facts.

Summary of facts

3.  The victim (a Japanese) became acquainted with the defendant (also a Japanese) in Japan in January 2015.  In October 2015, the defendant offered to purchase gold bars for the victim in Hong Kong.  The victim agreed to purchase 6 gold bars from the defendant at a cost of 30 million Japanese yen.

4.  On 20 October 2015, the victim withdrew 30 million yen from a bank in Japan and passed the said money to his two subordinates (both Japanese).  The subordinates then flew to Hong Kong to meet the defendant. 

5.  On the following day, they had a meeting with the defendant in a coffee shop in a hotel in Kowloon.  Under negotiation, the agreed price for purchasing the gold bars was lowered to 28 million Japanese yen. 

6.  Later, they went to a coffee shop in Wan Chai. The defendant asked them to give him the 28 million yen first, and he would go to buy the gold bars and return within 30 minutes.  The two subordinates then handed the said amount of yen to the defendant, who left the coffee shop. Thereafter, the defendant neither returned nor gave any replies to them.

7.  Immigration record showed that the defendant departed Hong Kong through the Macau Ferry Terminal soon after he left the coffee shop.  The defendant was at large until he was arrested on 31 August 2017 when he entered Hong Kong again. 

8.  So far, no gold bars were delivered to the victim.  The victim has suffered loss of 28 million yen (approximately HK$1.8 million). 

Background of defendant

9.  The defendant is aged 30, a Japanese residing in Japan.  He was divorced with a son.  He has a clear record in Hong Kong. 

Mitigation

10.  The defendant had no financial means at all as to make any compensation. 

Consideration of sentence

11.  I have considered the following:-

(1) The facts of the case involving stealing of around HK$1.8 million;

(2) the mitigation put forward;

(3) no compensation was offered by the defence;

(4) defendant has a clear record.

12.  I was referred by the defence of the case HKSAR v Cheung Mee Kiu [2006] HKCA 451, where the Court of Appeal had set down the guideline for theft involving breach of trust.  For the amount of $1 to $3 million, the starting point is from 3 to 5 years (as later ratified by the case of Ng Kwok Wing [2008] 4 HKLRD 1017. 

13.  However, for the present case, it does not involve any breach of trust.

14.  In sentencing, I have considered the following points:-

(1) the amount involved being HK$1.8 million;

(2) an international dimension being involved;

(3) no compensation being made by defence.

15.  For the amount of HK$1.8 million involving breach of trust, according to the case of Cheung, it should be slightly below 4 years, namely around 3 years and 9 months. 

16.  However, the present case does not involve any breach of trust.  I adopt a starting point of 2 years and 9 months. 

17.  By the aggravating factor of international dimension, 3 months is added.  As a result, the overall starting point is one of 3 years. 

Discount

18.  It should be noted that after the case had been set down for trial, the defendant changed his plea about 1 month before the trial date.  He cannot receive the normal one-third discount.  Under such circumstances, I only allow a discount of 25%. 

19.  After the discount, I sentence the defendant to a term of 2 years and 3 months’ imprisonment. 

Compensation order

20.  Having considered the followings:-

(1) The defendant is not a resident in Hong Kong;

(2) He has no connections at all in Hong Kong;

(3) He has no financial means in Hong Kong at all.

21.  I do not make any compensation order.