HKSAR v. Tso Man Lap and Another

DCCC 322/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 322 OF 2017

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

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

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

Reasons for Sentence

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

Charge

1.D1 and D2 plead guilty to a joint charge of theft.

Facts

2.D1 was employed by Apple Store, located at 1st Floor, International Finance Centre Mall, Hong Kong (the “Store”) as a salesperson since 5 March 2012.

3.On 30 June 2014, FAN Chung-kong (“PW1”), Manager of the Store discovered that some electronic products of the Store were missing.

4.Computer records of the Store showed D1 took electronic products, which were worth a total value of $272,824 (the “Stolen Property”), from the Store but cancelled the relevant record without returning the Stolen Property.

5.Subsequent investigation revealed that D2 posed as a customer and made fake purchases from D1.  D2 take the Stolen Property without payment, together with accessories he purchased. The relevant transactions for accessories by D2 were cancelled and refunded. D2 only returned the purchased accessories on each occasion.

6.It was later confirmed by Au Kin-lun (“PW2”), the manager of the Store, that the Stolen Property that D1 and D2 took from the Store comprised 46 iPhones and 2 iPads for the total value of $272,824 on 12 occasions between 26/1/2014 and 6/7/2014.   

7.Credit card statements of D2 showed the relevant transactions and refunds.

8.Duty list of the Store confirmed that D1 was on duty on all 12 occasions. CCTV captured the last 5 incidents in question. 

9.After arrest and caution, D2 admitted to have stolen electronic products from the Store together with D1. 

10.In his video-recorded interview under caution, D1 said that:

(1)   He found out the loophole in the Store’s system, became greedy and started looking for a partner to steal iPhones and iPads from the Store for resale;

(2)   D2 asked him for his employee discount in July 2013, and therefore he recruited D2 and D2 agreed after he told D2 his plan;

(3)   In execution of the plan, D2 pretended to be a customer for iPhones or iPads, D1 scanned the Stolen Property with “Easypay” and immediately deleted it for D2 to take them away without making payment, D2 left after purchasing some accessories and sold the Stolen Property in Mong Kong or Tsuen Wan, and D2 went back to the Store within 14 days from each purchase to cancel the purchase and be refunded;

(4)   He stole from the Store in the period in question.

11.In his video-recorded interview under caution, D2 said that:

(1)   He was D1’s classmate in secondary school;

(2)   In 1/2014, D1 invited him to earn quick money and he agreed to help because he needed money at the time;

(3)   In execution of the plan, he pretended to be a customer for iPhones or iPads, then purchased some accessories and took the Stolen Property away with the accessories without paying for the Stolen Property;

(4)   He committed the offences out of momentary greediness;

(5)   His reward on each of the 12 occasions was either one of the iPhones or its resale price.

Mitigation

12.D1 is 31 years of age.  He has a clear record.  He committed the present offence as he wanted to purchase a burial ground for his deceased father, who died in 2014.  He worked as a salesman of computer after the arrest.  Presently he is unemployed.  His mother works as a cleaner.  He has no siblings.  His gambling habit led to a debt of $200,000 owed to money-lending companies.  He had to repay several thousand a month.  He committed the present offence also to get quick money.  

13.D2 is 30 years of age.  He has a clear record.  He was a salesman before arrest. Upon the request of his solicitor Mr. Lee, I adjourn the sentence for 3 months so that D2 and his family can make full compensation, namely $272,824, to the Store.  I understand that full compensation has been paid before today.  His family is fully supportive of his reformation.  His current employer is satisfied with his work performance and expressly willing to continue with his employment. 

14.Mr. Iu for D1 does not dispute that D1 was the instigator and had committed a breach of trust.  D1 was more culpable than D2.

Sentencing considerations

15.The Court of Appeal in HKSAR v Cheung Mee-kiu [2006] 4 HKLRD 776 and states that, in the absence of aggravating factors, for breach of trust cases resulting in monetary loss of $250,000 - $1,000,000, the sentence shall be 2 years – 3 years. 

Sentencing D1 and D2

16.If the present offence had been committed by a single offender, I would have considered a starting point of 2 years.  D1 had recruited D2 to execute his plan to exploit the flaws in his employer’s payment system.  I now take a starting point of 2 years and 3 months for D1.  After the one-third discount for his timely plea of guilty, his sentence is 18 months.   

17.D2 joined in whilst fully aware of the breach of trust in the crime.  Playing a secondary role and not committing a breach of trust himself, he was much less culpable than D1.  Besides, he has paid full compensation, which is a very hefty sum to him and his family, to the Store covering his own takings as well as D1’s takings.  The probation officer recommends a community service order. According to R v Brown (1981) 3 Cr App R (S) 294 and as explained by HKSAR v Chow Chak-man [1999] 2 HKC 659, he is one who:

(1)   Is a first offender, or one with a light criminal record;

(2)   Comes from a stable home background, perhaps with a family;

(3)   Has a good work record;

(4)   Is in employment, or has a realistic prospect of such;

(5)   Has shown genuine remorse; and

(6)   Presents no more than a slight risk of re-offending.

18.I am satisfied that he fits all such criteria and the circumstances of the offence pertaining to him do not inevitably call for a term of imprisonment.  I put him on community service for 240 hours.