HKSAR v. Zuo Meiying

DCCC 732/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 732 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to the 2 charges that she faces, namely Charge 1 of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210, and Charge 2 of attempted fraud, contrary to Section 16A of the Theft Ordinance, Cap. 210 and Section 159G of the Crimes Ordinance, Cap. 200.

Facts

2.The Hong Kong Jewelry & Gem Fair (“the Fair”) was held at the Hong Kong Convention & Exhibition Centre (HKCEC) between 23 and 26 June, 2016.  Every person visiting the Fair must provide their personal particulars and produce identity documents for registration purposes.  Upon successful registration, they will be issued with a permit for entry into the Fair.  Only people working in the jewelry industry were eligible to apply for an entry permit and had to provide proof, such as a name card, for registration purposes.  When visitors entered the Fair through the different checkpoints, they have to produce their passports together with their entry permits and the name stated on the entry permit must match that on the passport.

Charge 1

3.Ms. Lau was a saleslady of the Royal Trading Company, situated at Booth No. 626, hall 3G, 3/F of the HKCEC. The company was one of the exhibitors at the Fair selling jewelry products.  Ms. Lau was proficient in speaking and understanding putunghua.

4.At about 14.20 hours on 23 June, 2016, there were a few customers in the booth including the Defendant, and PW1 was serving them.  There was a rack in the booth displaying 12 pearl necklaces including a gold necklace valued at US$1,200 on a shelf facing the customers.  The Defendant asked Ms. Lau the price of the gold necklace and said it was expensive after she was told the price.  There was a Chinese male standing beside the Defendant. Ms. Lau noticed that they had eye contact with each other and were standing close to each other.  They soon left the booth together. At this point, an unidentified customer told PW1 in putunghua that the Defendant had taken away a necklace. Ms. Lau immediately rushed out of the booth and intercepted the Defendant outside Booth No. 615, about 30 metres away.  The Chinese male was out of sight.  Ms. Lau asked the Defendant in putunghua if she had taken away the necklace – the Defendant tried to turn around and flee but was stopped by Ms. Lau. The Defendant told Ms. Lau in putunghua not to report to the police and said “I call him to bring it back to you”.  The matter was reported to the police. The necklace the subject matter of Charge 1 was not recovered.  The Defendant was arrested by the police. She was found in possession of HK$1,477,   RmB2,055, one mobile phone and two pearls in her purse and handbag.   The CCTV of the company showed that at 14.28 hours (CCTV time) the male stood beside the Defendant and they appeared to be inspecting jewelry items displayed in the booth.  Whilst the Defendant was taking something from the display rack, the male took out a paper from his belongings and used it to block the view of what the Defendant was doing.   They left the booth together at 14.30 hours.

Charge 2

5.CCTV records of the HKCEC and entry records provided by the organizer of the Fair revealed that the Defendant used an entry permit under the name of ‘TANG Xiang-ping’ and Tang’s passport to enter the Fair through Checkpoint No. 9 at around 11.09 hours on 23 June, 2016. Tang had applied for the entry permit at 9.37 hours on 23 June, 2016. The permit had been used to enter the Fair at 10.59 hours, 11.09 hours and 11.26 hours on the same day.  CCTV footage at Checkpoint No. 9 captured that the Defendant met Tang at 11.05 hours and Tang gave the Defendant her entry permit.  Registration records revealed that the Defendant’s own application for an entry permit to the Fair was rejected at 10.10 hours on 23 June, 2016. The Defendant had provided a name card stating that she was working as the shopkeeper of a jewelry company in Shenzhen, but her application for an entry permit to the Fair was rejected. At the material time, the Defendant was not working in the jewelry trade.

6.The Defendant was interviewed under caution in the presence of an interpreter on 24 June, 2016, and stated, inter alia, that she was working at a beauty salon on the Mainland with a monthly income of around RmB2000.  She came to Hong Kong alone as a tourist on 22 June, 2016, and she had with her cash of HK$5,000.  She wanted to look at some jewelry items and applied for an entry permit to the Fair, using a name card of a Shenzhen jewelry shop but her application was rejected. She claimed to have worked for the jewelry company named on the name card as a saleslady for 2 months in 2015.  She picked up the entry permit at the HKCEC without noticing the name on it and used it to enter the Fair – she did not know Tang.  After entering the Fair, she had visited the booth of the Royal Trading Company but denied she had stolen anything, and denied knowing the person who stood beside her. 

7.Travel index check confirmed that the Defendant had arrived in Hong Kong on 22 June, 2016.

8.By her pleas, the Defendant has admitted stealing the necklace from Booth No. 626 belonging to the Royal Trading Co. Ltd. together with an unknown person at the material time and place. She has also admitted attempting to induce UBM Asia Limited,  the Exhibition Organizer, to process her application and issue an entry permit for the Fair by deceit, namely by dishonestly and falsely representing to a staff member of UBM Asia Limited, the Exhibition Organizer, that she was working for a jewelry company in the PRC and was eligible to apply for an entry permit to the Fair held at the HKCEC between 23 and 26 June, 2016, which would have resulted in a benefit to her or a prejudice or substantial risk of prejudice to UBM Asia Limited, the Exhibition Organizer.  I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charges and accordingly I convicted the Defendant on her own pleas and admission of the facts on both charges.

Previous Convictions

9.The Defendant has a clear record.

Antecedent Statement

10.The Antecedent Statement was read into the record by the Prosecution. The Defence took no issue on the contents.  The Antecedent Statement disclosed that the Defendant was born in China on 6 October, 1985, and is now aged 30 years. She is a resident of Hunan, and came to Hong Kong on a two-way entry permit. She had received junior secondary education in China. She is divorced and unemployed. She is currently pregnant.

Mitigation

11.Counsel for the Defendant very helpfully prepared his submissions in mitigation in writing.  He submitted that the Defendant was divorced 3 years ago, and she has a son now aged 8 years. She had been working as a beautician in China for about a year from March 2015, earning RmB2,600 a month. She is now 7 months pregnant and due to deliver her baby in December, 2016.

12.Counsel submitted that the Defendant committed the offences purely out of greed and her eagerness to earn some quick money to cope with her financial need with a baby on the way.  She was now very remorseful, as reflected by her plea.  She was unable to compensate the victim company for its loss as she had no savings. But she offered her apologies to the victim.

13.Counsel submitted that there was no tariff for offences of this nature.  He referred to HKSAR v. Cheung Mee Kiu, CACC 99/2006, a well-known authority for offences of theft involving a breach of trust. The 4^th charge in that case was a conspiracy to steal charge involving a single item – a diamond ring valued at $24,000 that was pawned and subsequently recovered. The sentence passed was 6 months’ imprisonment and this sentence was not disturbed by the Court of Appeal.  Counsel submitted that the facts in the present case are not more serious than in Cheung Mee Kiu’s case. 

14.He also submitted that the Defendant was due to deliver her baby in December, 2016, and did not want her baby to be born in Hong Kong   as she did not have the resources to live with her child here in Hong Kong, and if the child was born in Hong Kong whilst she was in prison here, the child would be a Hong Kong resident and would lose any national benefits a child born in China is entitled to. A letter in mitigation from the Defendant was also submitted.

15.Counsel for the Prosecution was unable to assist in respect of this submission – she needed to look into this.  She submitted two authorities in respect of cases involving theft at jewelry exhibitions, HKSAR v. Padilla Gerardo Gonzaga & Others, CACC 275/2011, and HKSAR v. Tsogbadrakh Otgon, CACC 393/2013, and submitted that the range of sentence where the modus operandi was similar to the present case was a starting point of between 3 to 4 years imprisonment.

16.After hearing Counsel in mitigation, I adjourned sentence until 5 October, 2016, calling for Background and Medical Reports on the Defendant, which are now before me.  I was told by Defence Counsel that the Defendant agreed with the contents of both reports.   I had also asked to be informed in respect of the immigration status of a child born in a Hong Kong prison to a Chinese national serving a term of imprisonment in a Hong Kong prison.  Ms. Tam for the Prosecution informed the Court that she had made inquiries with the Immigration Department and had been informed that if a child is born in Hong Kong and a Chinese citizen, the child is eligible for permanent Hong Kong resident status, even if the mother is a serving prisoner, but this is subject to individual assessment in each case.

17.The Background Report of the Defendant discloses that the Defendant co-habited with her boyfriend in Hunan, China and she is now 7 months pregnant. She had been married in 2006, and had a son aged 8 years from the marriage.  She was divorced in 2013, and her son was with her ex-husband, although she kept contact with her son and had a good relationship with him. In respect of the present offence, she told the interviewing officer that she regretted associating with some clansmen who had made use of her desire to travel to Hong Kong and misled her to infringe the law here.   She said she knew the clansmen who assisted her to apply for the entry permit, but said she did not know the Chinese male who asked her to get the stolen necklace and give it to him.   She could not explain why she had followed the instructions of an unknown male. She maintained her plea of guilty and admission of the facts.  The Medical Report confirms that the Defendant is pregnant   at a gestation of about 31 weeks requiring antenatal medical follow-ups at Queen Elizabeth Hospital. Apart from that, her physical and mental health conditions are described as ‘stable and satisfactory’.

18.Mr. Lo for the Defendant informed the Court that the Defendant’s elder sister and her boyfriend, namely the father of her unborn baby, were in Court to show their support for the Defendant. He also submitted a letter in mitigation that they had written.

Sentencing Considerations

19.I have considered all that has been urged upon me by Counsel on behalf of the Defendant, as well as the contents of the letters in mitigation submitted to the Court and the reports that I have called for. I have also considered the authority submitted by Defence Counsel but I find that it is of little assistance. The fact that the value of the stolen property therein is somewhat greater than the stolen property here is of little assistance – although the offence is theft, the nature of the theft is entirely different.

20.Section 9 of the Theft Ordinance, Cap. 210, provides that a person convicted upon indictment for an offence of theft is liable to imprisonment for 10 years. Although there is no tariff for offences of theft similar to Charge 1,   the Court when approaching sentence looks at guidelines laid down in previous similar cases.  The Prosecution has submitted 2 authorities where the modus operandi is similar to that in the present case.

21.In HKSAR v. Padilla Gerardo Gonzaga & Others, supra, referred to in HKSAR v. Tsogbadrakh Otgon, supra, where the 5 defendants, all visitors from the Philippines, came to Hong Kong to attend an international jewelry show at the HKCEC and stole a diamond worth about HK$251,000 which was not recovered, the Court of Appeal said that a starting point of 3 years was unobjectionable. While finding that the trial judge had erred in enhancing the starting point, the Court of Appeal said:-

“22. The court was however entitled – indeed, duty bound – to give effect to features in aggravation of the offence of theft, though without recourse to the Organized and Serious Crimes Ordinance. The aggravating features were the international element and the facts that the offence was planned and committed by several persons.

23. In our judgment, those aggravating features in the context of a public exhibition of expensive jewelry, warranted in each case a sentence, prior to discount for mitigating features, of four years’ imprisonment.”

22.In HKSAR v. Tsogbadrakh Otgon, supra, the Court of Appeal affirmed a starting point of 4 years’ imprisonment, taking into account the international element, the planning and organization of the offence (Charge 1 in that case), and the involvement of multiple offenders in its commission. 

23.Although the value of the stolen property here is comparatively less than that of the stolen property in both  Padilla Gerardo Gonzaga & Others, supra and Tsogbadrakh Otgon, supra, the modus operandi of the offence of theft here is similar to that in the two cases submitted by the Prosecution.  I do not view the present theft as an opportunistic theft. There was organization, although not necessarily sophisticated planning and organization.  The Defendant arrived in Hong Kong on 22 June, 2016 and tried to apply for an entry permit to the Fair the very next morning, on 23 June, 2016.  She had with her the name card of a jewelry company in Shenzhen and represented that she was the storekeeper of that company. She must have known that only people working in the jewelry industry were eligible to apply for an entry permit and had to provide proof, such as a name card, for registration purposes. She had brought such a name card along to support her application, knowing full well that she was not working as a storekeeper for the jewelry store in Shenzhen and therefore not eligible for an entry permit.  Her application for an entry permit was rejected at 10.10 hours on 23 June, 2016.  She was captured on CCTV footages at 11.05 hours meeting Tang outside Checkpoint No. 9 where Tang gave her entry permit to the Defendant. The Defendant used the entry permit together with Tang’s passport to gain entry to the Fair through Checkpoint No. 9 at around 11.09 hours on 23 June, 2016.  That same entry permit was also used to enter the Fair at 10.59 hours and 11.26 hours on that day.  It is clear that the Defendant went to register to get an entry permit to the Fair almost immediately after her arrival in Hong Kong. She came equipped with a name card of a jewelry company in Shenzhen.  When her application was refused, within an hour she met Tang and used Tang’s entry permit and passport to enter the Fair.  She was at Ms. Lau’s booth, B626,   at 14.20 hours where she committed Count 1 with an unknown person – the male who is seen on CCTV footages standing next to the Defendant and with whom she was seen to have eye contact,   who took paper from his belongings and used the paper to hide her act of taking something from the display rack. They were captured on the CCTV footage leaving the booth together.  Clearly each had a part to play in the theft from the booth.  The Defendant acted in concert with the unknown male for the theft in Count 1.  The Defendant is a visitor to Hong Kong. Almost immediately upon arrival in Hong Kong, she went to the HKCEC and tried to get an entry permit for the Fair, and came equipped with a name card of a jewelry shop in Shenzhen. Under caution she said she had worked at that jewelry shop as a saleslady for 2 months last year.  I find that there is an international element here, the Defendant having come to Hong Kong from China, and almost immediately committing the present offences, and the theft offence was planned and committed by more than one person, and it was organized. When the Defendant was refused an entry permit, she used the entry permit of another person to enter the Fair.

24.The Hong Kong Jewelry & Gem Fair is a public event where expensive jewelries are displayed for sale.  It is for people who work in the jewelry trade.  It is a publicized and an international event held in Hong Kong – there is the inherent danger that thieves and fraudsters, from overseas or local - may try to gain entry to the Fair, as the Defendant herein did, and try to steal at the Fair.  Hong Kong has a good reputation for holding large-scale international jewelry exhibitions where local and international exhibitors exhibit their jewelry, including expensive jewelry,  and there are local and international buyers who attend these exhibitions. Too frequently, jewelry exhibitions held in Hong Kong are targeted by overseas thieves and fraudsters.  It is important to send a clear message that a deterrent sentence will be imposed if perpetrators come to Hong Kong to commit crimes of this nature.  Crimes of this nature adversely affect Hong Kong’s reputation for holding this kind of international jewelry show and also negatively impacts the security arrangements provided by the organizers of these shows.

25.For offences of fraud, Section 16A of the Theft Ordinance, Cap. 210, provides that a person convicted on indictment for an offence of fraud is liable upon conviction to imprisonment for 14 years. Although the Defendant has been convicted of attempted fraud, the sentence is no less than that for the substantive offence.

26.The deceit here was that the Defendant dishonestly and falsely represented to a staff member of the Exhibition Organizer that she was working for a jewelry company in China, when she was not, and thus eligible to apply for an entry permit to the Fair.  She produced the name card of the jewelry company. However, she was not successful in her attempt to apply for an entry permit.

27.The Defendant’s greatest mitigation is her pleas of guilty, which reflect remorse on her part.  Save for her pleas, there is really little mitigation of weight before me.  Counsel on behalf of the Defendant submitted in mitigation that she was pregnant and due to deliver her baby in December, 2016, as confirmed by the medical report, and she wants her baby to be born in China so her child will have all the rights a child born in China will have.  If the child is born in Hong Kong, the baby will be a Hong Kong resident, and not entitled to the benefits of a child born in China.  The Defendant does not have the resources to stay in Hong Kong with her child.   The pregnancy of an accused is no bar to the imposition of a sentence upon an accused which is appropriate to the offence, to quote the authors of ‘Sentencing in Hong Kong’, 7^th edition, at page 390. The authors go on to say:-

“The pregnancy may be disregarded ‘even as an act of mercy’: R. v. Kwok Lai-ling [1989] 1 HKLR 418, 420. In Chan Lai-ha v. R (CACC 78/1994, 2 August, 1994, unreported), a fraudster who sought a reduced sentence on account of her pregnancy was told by Keith JA that ‘we do not regard the fact that the applicant is now pregnant as justifying any reduction in the sentence’.”

The Defendant would have been aware of her pregnancy before she came to Hong Kong and committed the present offences. I do not view her pregnancy as a factor to warrant a reduction in sentence.

28.Taking all the factors into account, the appropriate starting point in respect of Count 1 is 3 1/2 years’ (42 months) imprisonment. In respect of Count 2, I will adopt a starting point of 1 year’s (12 months) imprisonment.

29.Little in the Defendant’s personal and family backgrounds afford viable or significant mitigation warranting any further reduction in sentence save for the one-third discount she is entitled to for the pleas, which in my view is the greatest mitigation.

30.For Count 1, the Defendant is sentenced to 2 years and 4 months’ (28 months) imprisonment.

31.For Count 2, the Defendant is sentenced to 8 months’ imprisonment.

32.I do bear in mind the totality principle of sentence. Although Count 2 is a separate and distinct offence from Count 1,   Count 2 was an attempt by the Defendant to obtain an entry permit to the Fair, wherein the offence in Count 1 was committed. Clearly there is a close nexus between the two offences.  I therefore order that the sentence for Count 2   be served concurrently with the sentence imposed for Count 1. The Defendant will serve a total of 2 years and 4 months’ (28 months)   imprisonment.