HKSAR v. Leung Man Chun

DCCC 140/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 140 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to one charge oftheft, contrary to Section 9 of the Theft Ordinance, Cap.210. Particulars are that he on or about 1^st December, 2015 stole 1942 mobile phones.

Facts

2.At the material time, the Defendant was a cross-border driver working for a company called Ocean Union International.

3.The complainant, Mr. Xu Yong-chuan, has a business dealing in second-hand mobile telephones which is based in Kwun Tong. He exports these mobile telephones to the Mainland, and has a regular customer in Shenzhen named Chau Heung-ping. In November 2015, Mr. Xu was asked by Mr. Chau to obtain a batch of second-hand mobile telephones for him and have the second-hand mobile telephones delivered to his premises in Shenzhen.  Mr. Xu bought a total of 1,942 second-hand mobile telephones for HK$855,748 and these were delivered to his warehouse in Kwun Tong.

4.Mr. Xu sought a driver to deliver the mobile telephones to Mr. Chau in Shenzhen. The Defendant was known to him as a cross-border driver working for Ocean Union International. Believing the Defendant would be willing to deliver the goods to Mr. Chau in Shenzhen, Mr. Xu telephoned the Defendant at about 2 p.m. on 30 November, 2015 and asked the Defendant to do the delivery. The Defendant agreed to do so and was promised RMB35,000 for the job by Mr. Xu. Mr. Xu telephoned the Defendant at about 1 a.m. on 1 December, 2015 after checking the goods. The Defendant asked that the goods be sent to his home at Ching Hei House, Tin Ching Estate, Tin Shui Wai and told Mr. Xu he would take the goods to China later the same day on his lorry.  The goods were delivered to the Defendant in Tin Shui Wai by Mr. Tang, a light goods vehicle driver regularly employed by Mr. Xu for such jobs.  Mr. Tang telephoned the Defendant when he was on the way after collecting the goods from Mr. Xu and the Defendant met him when he arrived at Ching Hei House at 2.35 a.m.  The mobile telephones were packed in a number of cardboard boxes. They were unloaded from Mr. Tang’s van and put onto a pushcart. The Defendant checked that the goods were correct and took the delivery notes from Mr. Tang.  Whilst the goods were being unloaded from the pushcart, the Defendant received a telephone call from Mr. Xu and confirmed to Mr. Xu that he had collected and checked the goods. The CCTV installed at Ching Hei House captured the Defendant at 2.50 a.m. on 1 December, 2015 taking the pushcart with the boxes of mobile phones on it into the building and taking the lift to 37^th floor, where the Defendant lived. The Defendant is captured on the CCTV to leave the building at 8.45 a.m. on 1^st December, 2015 without the pushcart and the boxes.

5.At 1.39 p.m. on 1^st December, 2015, the Defendant drove a heavy goods vehicle with registration NN 8122 belonging to Ocean Union International to the Mainland – he produced an export declaration at the border to declare the goods on his vehicle – there was no mention of mobile telephones.  He returned later that night at 8.08 p.m. with a load of goods from Futian and parked the vehicle at a car park in Yuen Long. He did not return to work after that. The heavy goods vehicle NN 8122 with the load he had brought back from Futian was found intact in the car park at Yuen Long by staff of Ocean Union International.

6.On 2^nd December, 2015, when Mr. Xu learned that the mobile telephones had not been received by Mr. Chau in Shenzhen, he tried to locate the Defendant, but failed. He then made a report to the police.

7.Between 2^nd and 13^th December, 2015, the Defendant did not return to work but made 4 trips to Macau. He was arrested at the Macau Ferry Terminal on 13^th December, 2015 on his return from Macau.   When interviewed under caution, the Defendant  was asked if he had seen any mobile telephones packed in cardboard boxes in the early hours of 1^st  December, 2015 and he replied ‘I don’t remember’. 

8.The Defendant was positively identified by both Mr. Xu and Mr. Tang.

Previous convictions

9.The Defendant has 5 previous convictions in 2 court appearances but nothing similar to the present charge. His last conviction was on 13^th October, 2015, when he was sentenced to 3 weeks’ imprisonment for an offence of attempting to import/export unmanifested cargo.

Mitigation

10.The Defendant is 41 years old. No issue was taken on the contents of the Antecedent Statement read into the record save in respect of the last paragraph.  I was informed by Counsel that the Defendant had separated from his wife and 3 daughters since the last 2 years, but he had been co-habiting with another woman for a little over a year – their daughter was born in January, 2016.  The Defendant had been arrested for the present offence in December, 2015, and had been in custody since, so he had only seen his newborn daughter on the few occasions when his co-habitee had brought her to visit him. His co-habitee used to be a saleslady, but as she now has to care for the baby, she is receiving social assistance.    The Defendant had been educated up to Form 1 in Hong Kong. Since leaving school at an early age, he has been working. At the time of his arrest, he was a cross-border driver earning $13,000 to $15,000 each month.  He used to be the sole provider of his ex-wife and family. His mother lived with his siblings, and he would give her some money each month, although this depended on his income.  Counsel submitted that this was a simple case of greed – the Defendant had sold the mobile telephones and then he had gone to Macau and gambled – on one of the 4 trips he made, he had even brought his co-habitee along.

11.Ms. Chan pointed out that although the Defendant is not of clear record, this was his first offence relating to dishonesty. She asks for leniency on behalf of the Defendant.

12.I was informed that there had been no restitution and none was likely in view of the Defendant’s circumstances.

13.Although the matter was adjourned until today for a Background Report on the Defendant, the Probation Officer has informed the Court that when interviewed, the Defendant had decided not to give any background information on himself. Therefore the Background Report could not be completed.  Counsel for the Defendant has confirmed that this is the Defendant’s decision as he did not want his mother to know of these proceedings.

Sentence

14.The maximum sentence for theft on conviction upon indictment is one of 10 years’ imprisonment.

15.It is not disputed, and I do so find, that the theft here was theft involving a breach of trust. Counsel for the Prosecution submitted the case of  HKSAR v. Yeung Chiu, CACC 105/2009 to support his submission that there was a breach of trust herein.  Defence Counsel accepted that there was a breach of trust by the Defendant.  The sentencing guidelines had been laid down by the Court of Appeal for an offence of theft involving a breach of trust in HKSAR v. Cheung Mee Kiu, [2006] 4 HKLRD 776 and HKSAR v. Ng Kwok Wing [2008] 4 HKLRD 1017.  The range of sentence where the stolen amount is between $250,000 and $1,000,000 is 2 to 3 years imprisonment. The value of the stolen mobile telephones here is HK$855,748.  The theft herein was pre-meditated albeit that it was unsophisticated. That the theft would come to light was inevitable once Mr. Xu learned that Mr. Chau had not received the goods and made inquiries.   Save for the Defendant’s plea of guilty, there is little mitigation of weight before me. I have borne in mind all that has been urged upon me by Counsel on behalf of the Defendant.

16.In my view the appropriate starting point would be 2 years and 9 months’ imprisonment i.e. 33 months. He is entitled to the full one-third discount for his plea. He is sentenced to 1 year and 10 months’ (i.e. 22 months) imprisonment.