HKSAR v. CHENG KONG-HANG

DCCC21/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 21 OF 2012

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Reasons for Sentence

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1.  The defendant appeared before me and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210.

2.  The offence discloses that the defendant stole 129 pieces of jewellery from his employer, one Legrand Jewellery Manufactory Company, which is situated in Hung Hom, Kowloon between 1st February 2011 and 12 October 2011.

Facts

3.  The fact of the case is simple enough.  The defendant was 28 at the time of the offence and he was a man of hitherto good character.  He had been working as a salesperson of the company since November 2010.  

4.  His main responsibilities were to assist his sales manager in dealing with clients and to handle refunds when clients sent back to them defective jewellery.  The defendant was also entrusted by the company with the pass code to the safe boxes placed in a storeroom of the office of the company which  all jewellery was kept either pending delivery to customers or upon return by customers if found defective in some way. 

5.  Between 1st February 2011 and 12 October 2011, he took dishonest measures to repay his gambling debts in Macau by stealing jewellery from the company. 

6.  In the period of about eight months, the defendant had pawned a total of 128 pieces of jewellery belonging to the company worth about HK$1.27 million in total at five different pawnshops.   

7.  Apart from pawning jewellery, the defendant also admitted that he had stolen an additional piece of jewellery from the company, a sapphire necklace, and sold it to an unknown person through an employee of a pawnbroker at HK$64,251.  The total value of the 129 items stolen by the defendant which is the subject matter of the charge is HK$1,337,867.76.         

8.  When the company discovered the theft, the matter was reported to the police and the defendant frankly disclosed to the police his misdeeds and handed to them three pawn tickets and two handwritten notes prepared by himself which recorded the details of the pawned jewellery.  Subsequently the police recovered 128 pieces of jewellery belonged to the company from the five pawnshops. 

Mitigation

9.  The defendant has a clear record.  He is now 29 years old, single and was living with his parents and two siblings in a public housing estate in Tai Wai, New Territories.  He has completed an associate degree in marketing management in 2004.  After graduation, he has been working as an office assistant for two years before he joined the business and became a jewellery salesperson.  He has a monthly salary of HK$25,000. 

10.  Mr Roy Lau, counsel appearing for the defendant, explained to me that although what the defendant had confessed to the police after arrest under caution was that he started stealing jewellery from the company because he owed large amount in gambling debts, that was in fact primarily due to his failure in his own gem business enterprise which later developed into a serious cash-flow problem.  Finally when the financial situation has not been alleviated and had even gone from bad to worse, in a desperate attempt, the defendant resorted to gamble at the casinos in Macau and eventually lost about HK$300,000.  

11.  In other words, the majority of the money received by the defendant by pawning the jewellery was put into his own business accounts which were in serious deficit, Mr Lau Said.  

12.  Mr Lau prayed in aid in the mitigation the conduct of the defendant after the sales manager of the company discovered the jewellery was missing.  The defendant frankly confessed to the proprietor of his stealing and gave full particulars of the details and records of the pawnshops involved to the company.          

13.  He also surrendered the pawn tickets to the police upon his arrest and confessed his crime under caution.  The defendant pleaded guilty which is a clear indication of his remorse.  Mr Lau said the defendant had learned a hard lesson and he would never be able to return to the jewellery business in future, which he had been involved in the past 6 years.

14.  The family was also in court today to support the defendant and according to Mr Lau, after serving his time, the defendant prepared to work for his father, who himself was an owner of a Chinese Medicine shop.  The chances of the defendant re-offending in the future was said to be low. 

Sentencing consideration

15.  This is of course a serious breach of trust offence.  Despite the short period of time the defendant started working with this company, the quality and the degree of trust reposed in the defendant is high.  Yet, he did not cherish the opportunity given to him by the company and resorted to thievish acts to solve his own personal financial problems.

16.  The Court of Appeal in Hong Kong has laid down clear sentencing guideline for this type of offence in the case of Cheung Mee Kiu [2006] 4 HKLRD 776 which closely followed the English Court of Appeal guideline in the case of R v Clark (Trevor) (1998) 2 Cr. App. R 137. 

17.  According to the guidelines, the present case involves a total of about HK$1.3 million and between HK$1 million to HK3 million, the sentence said to be between 3 to 4 years. However, the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 had adjusted the band HK$1 million to HK$3 million from 3 to 4 years to 3 to 5 years.  

18.  In HKSAR v Lee Lai Kit Kitty CACC379/2008, Cheung JA had explained the adjustment at paragraph 22:

“this upward adjustment was not due to any substantial development subsequent to Cheung Mee Kiu which merited an increase in sentence but rather to give full effect to the five bands of sentences, so as to ensure there is no perceived gap between the sentences for $1 to $3 million dollars and $3 to $5 million dollars and over $15 million dollars.”

19.  Applying the guideline as laid down in Ng Kwok Wing (Supra.), I would adopt in this case 3 years and 3 months as the starting point.  The conduct of the defendant after arrest relied by the defence is noted and of course is much encouraged.  However, one must not lose sight of the fact that the defendant was caught red-handed.  There is no way the defendant will be able to explain away his misdeeds and covered his thievish behaviours.  Thus, to that extent, I do not think that his co-operation with the employer and to the police merit any further mitigation.

20.  The loss to the company is substantial and there is no offer of restitution of any kind by the defendant.  Although nearly all of the items of jewellery were recovered from the pawnshops as a result of the police investigation, it is believed that the company still has to engage in a cross claims between the pawnbrokers to get back the jewellery and very likely that in the end, the company will still suffer some loss in the recovery process.

21.  I have no sympathy for the defendant’s falling from grace.  The court can never accept economic reason for committing crime like this.  The defendant is an educated young man and before this offence, he has a steady employment and also a stable income so he is really the author of his own misfortune.

22.  All in all, the only effective mitigation is his pleading guilty for which he will receive the customary one-third deduction.

Order

23.  The defendant is sentenced to 26 months’ imprisonment.