HKSAR v. CHAU CHUN YU AND OTHERS

DCCC 693/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 693 OF 2013

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REASONS FOR SENTENCE

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Introduction

1.  D1 to D3 appeared before me and they all pleaded guilty to a joint charge of theft, contrary to section 9 of the Theft Ordinance, Chapter 210. The subject matter of the stolen properties are 700 smartphones valued at US$298,697 which is approximately HK$2.3 million.

Facts

2.  According to the amended Summary of Facts which was agreed by all three defendants, the 700 smartphones stolen were part and parcel of a parcel of goods which consists of 12,000 units of Samsung Galaxy S3 smartphone which belonged to Samsung Electronics Huizhou Company Limited (“Samsung”) which were first delivered to Hong Kong and then eventually to Texas in the United States of America.

3.  The theft was planned and executed by D1 to D3 together with one Fok Ho Ting (WP).  D1, D2, D3 and WP knew each other.  D1, D2 and WP were current warehouse workers employed by OWN Logistics Company Limited (“OWN”) at the time of offence while D3 was an ex-employee of OWN.  OWN is one of the subcontractors used by Expeditors Hong Kong Limited (“Expeditors”) which was used by Samsung as the forwarding agent of the goods. 

4.  After the goods of the 12,000 units of smartphones arrived in Hong Kong on 24 March 2013, they were first properly packed on a wooden pallet and wrapped in a plastic wrap.  The goods were placed in a storage area of Asia Airfreight Terminal (“AAT”) where Expeditors was situated.  D1 and WP were on duty at AAT on the dayshift on 24 March 2013 whilst D2 was on the nightshift on the same day.

5.  After the buyer in the USA discovered and reported the loss of the 700 smartphones, a report was made to the police, and eventually all the three defendants were arrested. 

6.  According to their full confessions made by all three defendants after they were arrested, the theft of the 700 smartphones actually took place between 24 March to 25 March 2013.  The three defendants and WP actually planned and discussed about the offence.    

7.  Mr Alex Wong, public prosecutor, representing the prosecution, has succinctly consolidated and summarised the content of the full confessions of all three defendants in paragraph 11 of his amended Summary of Facts which have been agreed by all the defendants and here I shall adopt the whole paragraph for the purpose of describing the roles played by the defendants in this case:-

“11. In the video-recorded interviews, D1 to D3 admitted under caution that:-

(a) D1, D2, D3 and WP knew each other;

(b) D1, D2 and WP were employed by OWN while D3 was an ex-employee of OWN;

(c) They discussed about and planned the offence some time ago and had mutual understanding that they would execute the plan together;

(d) Their plan was to steal the smartphones and put metal sand bags back in the guise of the Stolen Properties;

(e) Metal sand bags were prepared prior to the offence using metal sands purchased from sports shops. Such metal sands were put into plastic bags;

(f) The metal sand bags were prepared by all four of them together and stored in WP’s home with the aid of a weighing scale, to ensure that each of the metal sand bags was of similar weight and that they were of similar weight to the Stolen Properties;

(g) On the day of offence, D1 drove NV8059, with the Stolen Properties, ie 700 smartphones, to Chun Yue Road in Chek Lap Kok;

(h) D2 drove his father’s private vehicle NP4163 (“NP4163”), with D3 and the metal sand bags, to meet D1 at Chun Yue Road;

(i) D2 acted as a lookout while D1 and D3 moved the Stolen Properties to NP4163 and replaced them with the Faked Goods, ie the metal sand bags;

(j) Afterwards, D1 drove NV8059, with the Faked Goods, back to AAT. D2 drove NP4163, with D3 and the Stolen Properties, to Goldway Carpark in Yeung Uk Road, Tsuen Wan;

(k) WP assisted D1 t offload the Faked Goods and place them together with the Ordered Goods in AAT. D2 and D3 stayed inside Goldway Carpark to count and package the Stolen Properties;

(l) D1 and WP drove a private vehicle RS7166 (“RS7166”) to Tusen Wan to join D3 to do the packaging, ie installing batteries into the smartphones and putting them into 2 newly purchased luggage. D2 drove RS7166 to AAT to work as he was on nightshift duty;

(m) D2 drove RS7166 to Tsuen Wan to join D1, D3 and WP after getting off work (in the early hours on 25 March 2013). The Stolen Properties, now packed in 2 luggage, were moved to and kept in RS7166;

(n) D2 drove NP4163 home while the others left;

(o) In the afternoon on 25 March 2013, D1 and D3 went to Tsuen Wan again to retrieve the 2 luggage containing the Stolen Properties from RS7166;

(p) D3 then took the Stolen Properties to Shau Kei Wan where he delivered them to a buyer, pre-arranged by a Mainland contact of D3;

(q) D3 received a total of HK$1.4 million as proceeds within about two weeks after the offence and divided it among D1 to D3 and WP;

(r) Almost all the proceeds had been spent, primarily on repaying gambling debt, personal loan and on entertainment. Learning that D1 was arrested, D2 passed HK$105,000, from his portion of the proceeds, to his girlfriend. D3 spent his portion of the proceeds, with HK$10,570 and RMB¥1,350 remaining; and

(s) WP was last known to be in Guangzhou.”

Criminal record and background of the defendants

8.  All three defendants in this case have a very similar background. Firstly, each defendant has a clear record.  D1 is aged 23.  He is still single.  He has a Form 5 education level and he has worked as a lorry driver for OWN for one and a half years, earning a monthly income of HK$14,000.  He lives together with his parents and a brother in a public housing estate in Yuen Long.

9.  D2 is aged 22.  He is also single.  He has also a Form 5 education standard and he has been working as a warehouse worker for about two years.  He lives together with his parents and an elder brother in a private residence in Yuen Long. 

10.  D3 is aged 22 also.  Similarly, he has a Form 5 education level and he has worked as a warehouse worker for two years.  He is still single and he resided with his parents and two elder brothers at a public housing estate in Yuen Long.

Mitigations

11.  The legal representatives of each defendant all prefaced their mitigation by submitting to the court letters of mitigations written by the defendants as well as their family members and friends for consideration.  In their letters, each defendant has expressed their remorse in this matter.  They all realised and were much regretted for their wrongdoings during their remand in custody and they all expressed their remorse to the court and heartfelt apologies to their family members and loved ones for letting them down and they all promised to turn a new leaf after serving the sentence.  Needless to say, they all asked the court to be as lenient as possible.

12.  Here, I am not going to go into the details of the content of these mitigation letters one by one.  I had the opportunity of reading them all. Suffice it to say, in the eyes of their family members and their friends, each defendant has a hitherto good character.  All the defendants were described as filial sons, loving and caring brothers, boyfriend or diligent student.  They have expressed shocks after learning the defendants’ misdeed.  While they all knew and acknowledged that the defendants should deserve some forms of punishments according to the law, they still hope the court can give them a chance so that each defendant can return to them as soon as possible.

13.  Mr YC Tong, solicitor for D1, acknowledged that this is a case involving a breach of trust.  He submitted that all three defendants had a joint discussion and they came up with the idea of the theft together so that their criminality was the same.

14.  According to Mr Tong, D1 was originally promised a sum of HK$350,000 by D3 after the stealing of the smartphones but he only received about half of the sum so far.  The remaining sum was still kept by D3 pending their further disposal or distribution.  However, after D3 was arrested, it came to D1’s knowledge that the sum was kept in D3’s home and was taken by WP.  All the money that was received by D1 has been spent by him and he was not in a position to offer or make any compensation.

15.  Mr Steven Liu, counsel for D2, readily accepted that this is a breach of trust case and the guideline laid down by the Court of Appeal would apply to his client.  In mitigation, Mr Liu stressed that his client had made full confession and co‑operated with the police at a very early stage after his arrest.  He submitted that this is but a single and isolated offence committed by D2 and therefore the chances of D2’s re-offending in the future is low.  

16.  Mr Liu told the court that the mastermind of this scheme is WP but he also properly acknowledged that D1 to D3 had pulled their heads together to carry out the scheme. 

17.  Mr Ivan Tang, solicitor for D3, acknowledged that this is a serious case of theft.  There is however one point which has been emphasised by Mr Tang and that is D3 had already left employment of OWN for about six months at the time of the offence.  Therefore it is Mr Tang’s submission that there is no element of a breach of trust insofar as D3 is concerned, and to that extent, D3 is less culpable.  He urged the court to impose a sentence to reflect the situation.

18.  Lastly, Mr Tang submitted that D3 had a clear record and had great family support and he therefore asked the court to pass a lenient sentence. 

Sentencing considerations

19.  Before sentencing, I had carefully considered the facts of the case as well as the mitigations advanced on behalf of each defendant by their legal representatives.  The present case is no doubt a very serious case of theft involving a breach of trust for D1 and D2 and with such a background in the case of D3.  The value of the stolen goods amounts to approximately HK$2.4 million and therefore it is substantial.

20.  Apart from the money which can be recovered by the police after the three defendants were arrested, which were small in comparison with the total value of the stolen goods, the company has suffered a great deal financially. The defendants were either current or ex-employee of the logistics company, OWN, who were the sub-contractor of the forwarding agent, Expeditors, who were entrusted by the owner of the goods, Samsung, to deliver the same.  

21.  The case, as can be seen from their confessions to the police, is also carefully planned and sophisticated, involving in particular the substitution of metal sands of the same weight of the stolen goods in order to evade detection in Hong Kong before they were delivered abroad.  While it is true and I accept that, strictly speaking, D3 was no longer an employee of OWN at the time of the offence but in terms of criminality, I judge that he was no less culpable than the other two defendants in that being an ex-employee of OWN, he had conspired together with two current employees of the company to commit the theft of the goods under the custody of the company. 

22.  What is more, he had later actually and fully participated together with the three others in carrying out and executing the theft.  In so doing, D3 was actually aiding and abetting the three other current employees of the company to commit a serious breach of trust against their own employer.  By reason of the principle of joint enterprise, he therefore should be criminally responsible for the acts of the other co-defendants.  I therefore decided that the degree of criminality is the same among the all three defendants in this case.

23.  The Court of Appeal has laid down guidelines for sentencing in breach of trust case in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 770 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  Given that the range of sentence for an amount between 1 million and $3 million is 3 to 5 years, for an amount such as the present offence involving HK$2.3 million, the sentence should therefore be 4 years and 3 months and that is 51 months.

24.  This is yet another case where defendants with hitherto good characters have fallen from grace and succumbed to the temptation of greed.  I have of course every sympathy for the family members of the defendants who have come to the court and support their loved ones, but the Court of Appeal has already said in many authorities that in serious cases, family circumstances virtually play no part in mitigation.  

Order

25.  The only effective mitigation in each defendant’s case in the end is his plea of guilty and for which, each defendant would be given the full one-third discount. 

26.  I therefore sentence each defendant in this case to 2 years and 10 months’ imprisonment accordingly.