HKSAR v. CHO CHUN MAN PHILIP

 DCCC1323/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1323 OF 2009

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

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

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

Reasons for Sentence

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

1.  The defendant pleaded guilty to a charge of Theft.  He was an employee of Kwok Queen International Tour Limited.

2.  On 28 May 2006, the defendant stole HK$133,620.70 and ¥200,996.50 which were kept in the company safe.  He left Hong Kong to China on the same day and has not been back to Hong Kong since then. 

3.  He was brought back to Hong Kong by the PRC Public Security Bureau and was arrested in Hong Kong on 30 September 2009.

Criminal Record

4.  The defendant has one conviction of a gambling record in 1982 and fined for $600.  I shall treat this record as spent.

Mitigation

5.  The defendant is now 48, divorced and has a daughter.  The defendant’s father just passed away last night.  I understand that arrangement can be made by the Correctional Services Department for him to attend the funeral service of his father. 

6.  His mother is now aged 75 and she suffers from diabetes and ankle problems. 

7.  The defendant committed the present offence because of financial problems as his employer failed to pay his salary for five months.  He earned $9,000 per month at the material time.

8.   He was arrested on 7 September 2009 and has been detained in China until 30 September 2009 before he was brought back to Hong Kong.  The defendant is now remorseful.

Sentence

9.  There is no doubt in my mind that the defendant has committed a very serious offence.  The defendant also knew at the time when he committed the presence offence - and that can be explained by the fact that he abscond to China - the employer of the defendant had placed trust on the defendant by giving him keys to the shop.

10.   The defendant, being the manager of the shop, also knew there was a key being kept in a particular place for the safe to keep cash.

11.  The defendant came back from Macau at 7 am on 28 May 2006 after spending a day in Macau.  He then went back to the shop at 7.30 am when the shop was not yet open.  It was a Sunday.  Obviously the building was still quiet as the defendant would not expect anyone to return to the shop so early in the morning, as the shop did not open until 8.30 am. 

12.  And, therefore, it involved a certain degree of planning for the defendant to steal the money.  He stole the money and left for China for some 3 years.

13.  In his admission to the police, he lost all the stolen money in gambling.  Perhaps the defence has not told me the defendant in fact has a bad gambling habit but that was beside the point. 

14.  In HKSAR v Cheung Mee Kiu CACC 99/2006,  the Court has laid down guideline for theft involving a breach of trust:-

a)     over 50 million 10 years or more;

b)      3 million to 15 million 5 to 9 years;

c)      1 million to 3 million 3 to 4 years;

d)      250,000 to 1 million should be 2 to 3 years; e)

e)      less than 250,000 should be less than 2 years.

15.  In the present case, the sum involved was about $330,000.  I therefore take a starting point of 2 years.  Having considered the circumstances of the case and mitigating factors, I also reduce to 16 months to reflect his guilty plea. 

16.  In mitigation I am told since the defendant has been detained in China for three weeks before he was sent back to Hong Kong, I also deduct 3 weeks from the 16 months and it comes to 15 months and one week.