HKSAR v. LO CHI MING

DCCC 1101/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1101 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of theft, contrary to s.9 of the Theft Ordinance, Cap.210. Particulars of the charge are that the defendant stole 3 wrist watches between 14^th and 15^th October 2012 at 4^th floor, 21 High Street, Sai Ying Pun.

Facts

2.  Mr. Tam was living together with Ms. Fung at the charge address. 3 Rolex watches (total value $134,086) belonging to Mr. Tam were kept inside the bedroom there. On 14^th October, Ms. Fung invited her brother, the defendant, over for dinner. The defendant did go to the premises.

3.  The 3 of them left the premises together a short while after 9pm.

4.  Mr. Tam and Ms. Fung returned to the premises a few hours later at around 1am the following day, whereupon Mr. Tam found that the 3 Rolex watches were missing. There was no sign of ransacking in the premises and a report was made to the Police.

5.  The defendant was arrested on the morning of 15^th October at his home. Upon search, the 3 missing Rolex watches were found on the defendant’s bed. The defendant confessed to stealing the watches under caution.

6.  In a subsequent video recorded interview, the defendant confessed that he stole the watches while his sister was watching television in the living room and Mr. Tam was taking a shower the night before.

Previous Convictions

7.  The defendant has 4 previous convictions, one being similar to the present charge, where he was fined $4,000 for shoplifting a few months before the present offence.

Mitigation

8.  The defendant is 39 years old. He’s separated with wife for a long time and is now in the process of getting a divorce. The defendant was educated up to primary 5 level, with no special skills to make a living. Since the defendant suffers from asthma and depression, he can no longer work as decoration or transportation worker.

9.  On the night of the theft, the defendant was, as he usually would, playing with the computer in the bedroom when he saw the 3 watches. Out of momentary greed, he foolishly took them.

10.  During the defendant’s present remand, his family members, including Mr. Tam and Ms. Fung went to visit him. The defendant’s younger sister is in court and has told the court that her elder sister Ms. Fung and Mr. Tam had forgiven the defendant.

Sentence

11.  The maximum sentence for theft is that of 10 years’ imprisonment.

12.  The defendant stole the watches out of momentary greed. There is no evidence of premeditation. The watches were recovered and Mr. Tam did not suffer any loss. Both Mr. Tam and Ms. Fung had forgiven the defendant and the family is still supportive.

13.  Both counsel for the prosecution and defence agreed that had the defendant been charged with theft instead of burglary from the very beginning, the case would have remained at the Magistracy level.

14.  For the purpose of sentencing, I ordered a background report to be prepared. Having read the background report, I find that a short term of imprisonment is necessary in the present case to punish the defendant and to try to deter him from re-offending in future. This is not a first offence of dishonesty for the defendant, he has a previous conviction for shoplifting dated 28^th August 2012. The property he stole in the present case are valued at a total of HK$134,086, which is not a small amount.

15.  Bearing in mind however the slightly unusual circumstances of the case and that his family members including the victim of the crime has forgiven him, I will adopt a starting point of 6 months’ imprisonment, discounting it to 4 months in recognition of the defendant’s guilty plea. The defendant is therefore sentenced to 4 months’ imprisonment.