HKSAR v. Wong Yin Chun

DCCC 690/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 690 OF 2015

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

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

Reasons for Sentence

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

1.In this case the defendant, Wong Yin-chun, faces a total of six counts of “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210.

2.He is convicted on his own plea and admission of facts.

Facts

3.Since May 2007 the defendant had been working for Kembla (HK) Limited (the victimised company) as a warehouse manager, responsible for all the four warehouses owned by the company.

4.On six occasions during the period of May 2013 and October 2013, the defendant had stolen a total quantity of 14.5 tonnes of copper wire pipes owned by the victimised company and sold them for scrap to a third party.  The depletion of the stock was first noticed during the regular inventory check in December 2013, but it was sometime in early 2014 that full enquiry was carried out.

5.On 2 April 2014 the defendant reported sick and had since been out of reach.  On 9 September 2014 the defendant was arrested upon his arrival in Hong Kong at Lowu. 

6.Upon caution, the defendant admitted to have stolen the copper wire pipes and sold them as scrap metal on six occasions.  He had received a total sale price of HK$842,000.

7.In all, a total of 14.5 tonnes of copper wire pipes had been stolen.  Its estimated value is HK$1.2 million. 

8.According to the defendant, all the monies had been spent.  There was no offer of restitution. 

Discussions

9.This is a crime involving a breach of trust. The defendant had made use of the trust bestowed on him by his employer and systematically pilfered the company’s stock over a period of seven months.  He sold them at discounted prices and pocketed the proceeds.  Any sensible person would know such theft would inevitably be revealed. The defendant must have been desperate to have done what he did, but the fact remains that the crimes had been carried out systematically and persistently.  They had not certainly been done at a momentary lapse of judgment. 

10.Such behaviour rocks the very core of a commercial society, the smooth operation of which is largely dependent on the integrity of the personnel involved.  The court owes a duty to the public to send out a clear message that such behaviour will not be tolerated in Hong Kong.

11.Apart from the facts already admitted, there is no extra evidence of the size of the operation of the victimised company nor the degree of trust bestowed on the defendant.  From the fact that the defendant could repeatedly take stock for sale undetected over a prolonged period of time, I come to the conclusion that as manager of the warehouses, the defendant was probably given full rein in their operation.

12.The undersigned has not been informed of the impact of the loss in the company; so I can only proceed on the basis that there is no aggravating factor.  The sheer quantity and the total value of the property stolen are indicative of the magnitude of the crime. 

13.There are six charges which occurred on different occasions during the seven months in question.  The defendant had stopped pilfering after the victimised company began to suspect something amiss.  I consider all six charges were an ongoing theft and adopt a starting point for the overall criminality of the defendant’s transgressions. 

Authorities

14.The sentence for the crime of theft involving breach of trust has been considered repeatedly by the English courts and the Hong Kong Court of Appeal.  The authorities are consistent and undisputed.  In the case of R v Clark[1] which involved an employee abusing his position of trust and stole from his employers large sums of money, the English Court of Appeal set out five financial bands and the appropriate ranges of sentence within each band.

15.The principles have been followed by the Court of Appeal in Hong Kong in the case of HKSAR v Cheung Mee Kiu[2].  The English guideline is adopted in principle and the Clark bands are converted into equivalent bands in Hong Kong dollars.  The present case falls within the 1 million to 3 million dollars band and warrants a term of imprisonment of 3 to 4 years. 

16.In HKSAR v Ng Kwok Wing[3], the Court of Appeal confirms again the sentencing principle but revises upwards the above guideline.  The sentence for the band of 1 million to 3 million Hong Kong dollars is adjusted to 3 to 5 years’ imprisonment. 

17.Neither the prosecution nor the defence take any issue on the authority of the above guideline. I will therefore adopt a starting point of 3 years for the overall criminality of the defendant’s transgressions, adjust it down to 2 to take into account of his guilty plea.

Mitigation

18.The defendant is a mature adult with a clear record.  I have been told that he had been through two failed marriages and is now the father of a 1-year-old son.  He is still paying the alimony of his first wife.  He is spoken well of by his family members. 

19.The defence lawyer told this court that the defendant had committed the crimes out of financial pressure, he made too little, spent too much, speculated unwisely and was burdened with his first wife’s maintenance.

20.It is also contended that the defendant transgressed as a result of momentary greed.  I beg to differ.  He had pilfered his employer’s stock in trade and resold it as scrap metal systematically and over a period of time, it was anything but momentary.

21.None of the above is valid mitigation.  Since the predominant principle is one of deterrence, the personal circumstances have little impact on the quantum of the sentence to be passed, nor is the fact that the defendant had a clear record.  In fact, it can be argued that it was precisely because of the defendant’s previous good character that he could be placed in a position of trust and commit the crimes in question. 

Therefore, I see no other reason for exercising the discretion of additional clemency.

22.The defendant is hereby sentenced for each count a term of imprisonment of 2 years, all to run concurrently.