HKSAR v. Huang Yanming and Another

DCCC 840/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 840 OF 2015

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REASONS FOR SENTENCE

1.D1 and D2 pleaded guilty to a charge of "Attempted Theft". They tried to steal a 3.54-carat diamond, which was worth US$21,500.

Summary of Facts

2.The Hong Kong Jewellery and Gem Fair ("the Fair") was held at the Hong Kong Convention and Exhibition Centre between 25 and 28 June 2015.  Visitors entering the Fair must present their passports and business cards for registration.  They would each be issued a permit and their entries into the Fair were recorded.

3.Mr. Unmay (PW1) was the marketing manager of "Star Brillian Company", an exhibitor with a booth at the Fair.

4.About noon on 25 June, D1 and D2 entered PW1's booth and requested to see some diamonds.  They sat down at a table and PW1 showed them 3 diamonds.  D1 opened the box of a 3.54-carat diamond ("the Real Diamond") and picked it up to have a look.  She took the Real Diamond and placed a fake one in the box.  D1 then returned the box to PW1.  PW1 noticed something different about the fake diamond.  When he was about to inspect the item inside the box, D2 snatched the box from PW1 and took out the fake diamond.  D1 then put the Real Diamond back into the box.  PW1 alerted his colleagues to block D1 and D2 from leaving the booth.

5.In the course of their scuffle, the fake diamond was dropped on the floor.  D2 immediately picked it up and swallowed it.  D1 and D2 also dropped their fair entry permits on the floor.  They were later arrested by the Police and their fair entry permits were seized.  The names which appeared on the permits were "LI Dan" and "LIANG Ping".

6.D2 was sent to the hospital and guarded by police officers round the clock.  About 8:00 am on 29 June (4 days after her arrest), D2 passed out 2 suspected fake diamonds (E1 and E2) in her stool.  Forensic examination of E1 and E2 confirmed that they are fake diamonds.

7.CCTV footage of the Fair's registration counter captured 2 unknown females (WP1 and WP2) obtaining their fair entry permits under the names of "LI Dan" and "LIANG Ping" at 1:05 pm and 1:24 pm respectively on 24 June.  WP1 and WP2 were seen speaking to each other at the registration counter.  CCTV footage of PW1's booth also captured the commission of the offence by D1 and D2.  In short, D1 switched the diamonds whilst D2 was talking to PW1.

8.Under caution, D1 denied the offence and D2 remained silent.

Mitigation

D1

9.She is now 42 and married with a daughter (aged 21).  D1's lawyer, Mr. CHUI, informed me that D1 has only received education up to Primary 5 in the mainland.  She became a housewife after getting married. 

10.In mitigation, Mr. CHUI submitted that D1 has always been looked down by her mother-in-law and husband.  She does not enjoy a happy family life at home.  Having been suppressed for a long time, D1 foolishly decided to do something to prove herself – by making some money to gain the respect of her mother-in-law and husband.

11.Mr. CHUI further submitted that D1 is truly remorseful.  Her daughter had a divorce 5 months ago and is now pregnant for 7 months.  D1 wants to return home the soonest to give support to her daughter.  Mr. CHUI stressed that the Real Diamond was recovered and its owner did not suffer any monetary loss.  A letter written by D1 was placed before me; its contents are duly noted.

D2

12.She is now 34 and married with 4 children (aged between 4 and 12).  D2's lawyer, Ms. WONG, informed me that about 2 weeks prior to the present offence, D2 went from her hometown in Hunan to Shenzhen to work in order to improve the financial situation of her family.  But shortly thereafter, she was recalled by her mother; D2's mother was unable to look after D2's 4 children due to poor health.

13.In mitigation, Ms. WONG submitted that the 2 fake diamonds indeed belonged to D2; they were given to her by a friend working in a factory producing crystal lamps.  D1 knew that D2 had the fake diamonds and took them from D2.  Ms. WONG further submitted that D2 needs to return home as soon as possible to look after her 4 children.  A letter written by D2 was placed before me; its contents are duly noted.

Sentence

14.Mr. CHUI and Ms. WONG have referred me to a number of cases on the sentencing of theft committed at jewellery exhibitions[1]. In HKSAR v Padilla Gerardo Gonzaga & others CACC 275/2011 (dated 30 November 2011), the Court of Appeal held that for the theft of a diamond valued at HK$251,682, a starting point of 3 years' imprisonment was unobjectionable[2]. With aggravating features (namely international element; the offence was planned and committed by several persons) present in the context of a public exhibition of expensive jewellery, a starting point of 4 years' imprisonment is warranted[3].

15.In the present case, D1 and D2 acted in concert trying to steal a diamond which was worth at least HK$160,000.  They are both mainland residents and have nothing to do with the jewellery trade.  They dressed in business attire to attend the Fair[4].  They were armed with 2 fake diamonds to perform the swap.  Fake names were used on their fair entry permits in order to conceal their identities.  Their fair entry permits were obtained by 2 other females the day before the offence.  Unless D1 and D2 stole the 2 fair entry permits from their genuine owners, I can safely assume that at least 4 persons were involved in this crime syndicate.  But to give them the benefit of doubt, I will sentence D1 and D2 on the basis of a syndicate of 2 persons.

16.Based on the reasons stated above, I consider a starting point of 4 years' imprisonment to be appropriate. Since the Real Diamond was recovered, I am prepared to reduce the starting point to 3.5 years.  With the guilty plea, the sentence is reduced to 28 months. Both defence lawyers have informed me how tough it is for D1 and D2 to make a living and to maintain their families.  It may well be so.  But time and again, the Hong Kong courts have expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime, needless to say crossing the border to commit a crime in Hong Kong.  I sentence D1 and D2 each to 28 months' imprisonment.