HKSAR v LO KWOK WA, PATRICK

DCCC1311/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1311 OF 2010

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Reasons for Sentence

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1.   The Defendant pleads guilty to one count of theft.  In 2005, the Defendant was employed as a gold refining technician in a gold refining Factory (“the Factory”) owned by Johnson Matthey Hong Kong Limited.  The Factory was located at the ground floor of an industrial building in Kwai Chung.  At all material times, the Defendant’s duty as a gold refining technician was to purify gold, and he had to handle gold grains in the course of his work.  All the relevant staff members, including the Defendant, had to undergo a security check of metal detection and X-ray scanning every time before leaving the Factory.

2.   In 2007, the ownership of the Factory was changed to Metalor Technologies (Hong Kong) Limited (“Metalor”).

3.   On 12 October 2010, the gold refining technician supervisor of the Factory noticed that the chemical waste storage area of the Factory was messy.  In the course of tidying things up in the area, he moved a plastic box in which the Defendant stored his personal belongings. The plastic box was unreasonably heavy, and therefore the supervisor took a look inside.  The supervisor found some personal belongings of the Defendant, as well as a white plastic bag containing a purple plastic bag containing gold grains, E1.

4.   The supervisor reported the matter to the security manager of the Factory.  On 13 October 2010, the security manager confronted the Defendant about the matter, and the Defendant admitted having stolen E1 out of greed.  The case was reported to the police. 

5.   The Defendant was arrested by the police on 13 October 2010.  Under caution, the Defendant admitted having stolen E1 out of momentary greed. 

6.   During house search, the police found in the Defendant’s residence some further gold grains, E2, though in much less quantity.  Under caution, the Defendant admitted that E2 was also stolen from the Factory.  He kept E2 in his bedroom so that he could occasionally take a look at it. 

7.   Two video-recorded interviews were conducted with the Defendant under caution.  The Defendant said, amongst other things:

(a) He had stolen gold grains from the Factory twice, once in 2006 and once in 2007. In each of the two occasions he took approximately 3 kilograms of gold grains and hid them behind the water tank at the chemical waste area of the Factory;

(b) Later in May 2007, when the Factory was taken over by Metalor, he was assigned to deliver some old plastic water karts from the Factory to the office on the 5th floor of the same building. He hid some of the stolen gold grains, namely E2, in the plastic water karts and delivered them to the office on the 5th floor. He retrieved E2 from the office on the 5th floor after work and took it home;

(c) At one stage he intended to sell E2, which he kept at home, but he was afraid of being suspected, so he did not do it. He just kept E2 in his bedroom and took a look at it when he was alone at home; and

(d) He also intended to take out the remaining hidden gold grains, namely E1, from the Factory, but he had no opportunity to do so. Later he was afraid that E1 would be discovered, so he placed E1 in his personal belongings plastic box in the Factory, and used black adhesive tapes to wrap some of the E1 to make them less obvious.

8.   The total weight of E1 and E2 was 5,972.63 grammes. 

9.   According to the witness statement made by a staff of the Factory, the value of E1 and E2 at different points in time are as follows: early 2006, $771,362; mid-2006, $913,652; end of 2006, $952,594; early 2007, $952,594; mid-2007, $988,566; end of 2007, $1,248,053; 13 October 2010, $2,053,220.

10.   The Defendant is aged 41.  He has a clear record.  He received education up to Form 5 level, and he is now living with his girlfriend and her daughter. 

11.   According to the documents supplied by the Defendant’s counsel, the Defendant had received some certificates of appreciation from his previous employers relating to his work.  The Defendant has also taken part in some charity functions, most of them related to trail-walker events.  He occasionally acted as volunteer in these functions. 

12.   According to the Defendant’s counsel, the Defendant is deeply remorseful for this offence.  He committed the offence only out of a moment of greed.  That was a stupid and foolish act on his part, and there was no loss to the employer.  He therefore asks the court to treat the Defendant as leniently as possible. 

13.   Theft involving a breach of trust is always regarded as a very serious offence.  The Defendant has abused the trust placed on him by his employer.  This kind of offence is also not easy to be detected.  In the present case, it was only by coincidence that the employer was only able to find out the crime committed by the Defendant. 

14.   There are established sentencing guidelines for such kind of offence as laid down in the case of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 as revised in the subsequent case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, depending very much on the amount of money or the value of goods that had been stolen. 

15.   In the present case, one of the issues is whether I should sentence the Defendant based on the value of the gold at the time of the commission of the offence or at the time of his arrest.  In my judgment, the court should sentence the Defendant based on the value of the goods at the time of the commission of the offence.  As that was the value of the goods to the Defendant by that time, that truly reflects the criminality of the offence.  To me, the increase in the value of gold in the last few years, nearly double in value in the context of the present case, has nothing to do with the criminality of the offence.

16.   There is some confusion as to when the Defendant committed the offence.  As the theft was committed some time in 2006 and 2007, the value of the gold grains was in the region of $1 million.  I would therefore adopt such figure for the purpose of sentencing the Defendant.  The Defendant’s counsel also does not dispute such approach.

17.   According to the sentencing guidelines, theft involving breach of trust in the region of $1 million would attract a sentence of 3 years' imprisonment.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 2 years' imprisonment.

18.   The Court of Appeal has always emphasised in the past that, for a serious offence of this nature, clear record carries very little weight in term of mitigation.  However, the documents provided by the defence counsel shows that the Defendant did take part in some charity events in the past.  In my judgment, this would amount to a positive good character and I would reduce his sentence by a further 2 months. 

19.   I therefore impose a sentence of 1 year and 10 months’ imprisonment.