HKSAR v. Wong Ming Ping

DCCC 172/2018

[2018] HKDC 948

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 172 OF 2018

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REASONS FOR SENTENCE

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1.Defendant pleaded guilty to a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and was so convicted.

Facts

2.According to the agreed summary of facts, defendant on various dates between 30 November 2017 and 3 January 2018, both dates inclusive, stole a total of 11 pieces of diamonds belonging to his employer and entrusted to him by his employer for prong setting.

3.Total value of the diamonds was HK$2,791,297.98.

4.During the aforesaid period, defendant took away few diamonds at a time when he was off work and replaced the same with colloids.  They were pawned by the defendant for a total amount of $619,000.  The diamonds were later recovered from the pawnshops.

Criminal record

5.Defendant had a clear criminal record in Hong Kong.

Mitigation

6.Defendant is now aged 39.  He was born in Mainland and came to Hong Kong in 1991.

7.He had received education up to Primary 6 level and after he left school he began to work as a jeweller until now.

8.He is married and lives with his wife, two children aged 7 and 9, as well as his parents.  He used to earn $20,000 per month.  It is said by Mr Lam on his behalf that defendant is a filial son, good husband and good father.

9.It is submitted that though the value of the diamonds are $2,791,297.98, the actual loss to the employer is the sum $619,000 repaid to the pawnbrokers by the employer.

10.Mr Lam for the defendant further submitted that defendant is deeply remorseful for the commission of the offence, that he had tendered most of the pawn tickets to the employer, leading to the recovery of those jewellery.  He had pleaded guilty at the earliest available opportunity.

11.Mitigation letter from the defendant was also presented to this court.  Defendant said he has committed the offence out of momentary greed and had caused loss to the employer and that he has lost his job as a result.  He is now deeply remorseful and asks for leniency of the court so that he could return to his family as soon as possible.

12.It is said also that the period within which the defendant committed the offence was not long, only one and a half months, and defence counsel urged this court to adopt the stance taken in the case of HKSAR v Cheung Mee Kiu, CACC 99/2006.

Discussion

13.In Cheung Mee Kiu case, Court of Appeal adopted the sentencing guideline in R v Clark [1998] 2 Cr App Rep 137.  The court in Clark laid down sentencing guideline based on five financial bands.  The court in Cheung Mee Kiu case revised the same so that band 3 deals with cases where the amount involved lies between HK$1 million and $3 million and sentencing is said to range from 3 to 4 years’ imprisonment.

14.Later in 香港特別行政區訴吳國榮, CACC 398/2007, Court of Appeal revised the band 3 sentencing guideline from ‘3 to 4 years’ to ‘3 to 5 years’.  It is stated expressly that the guideline should not be treated as a straitjacket, as there are in each case individual mitigating or aggravating factors which need to be reflected in the ultimate sentence.

15.In the case here, the present case involved a breach of trust.  Amount of diamonds stolen is HK$2.79 million but the actual loss to the employer is HK$0.69 million.  The duration for the commission of the offence is one and a half months.  One can see from the exhibit list that there are altogether 11 pawn tickets carrying seven different dates, meaning that the defendant had at least on seven different dates pawned the individual diamonds to the pawnshops and that in this case the defendant has used colloids to disguise his crime.  This is an aggravating feature.

16.This court is aware that the sentencing guideline in 吳國榮 case is not straitjacket, but, considering the same, and considering the amount of jewellery involved, the actual loss to the employer, and the aggravating feature as said earlier, ie the use of colloids, the appropriate sentencing starting point would be 4 years and 8 months.  The 4 years and 8 months has no regard to the use of colloids. 

17.The defendant had tried to cover up the commission of the offence by placing colloids of a similar size in the toolbox.  This is an aggravating feature and the sentencing starting point would be an additional 1 month, i.e. 4 years and 9 months (i.e. 57 months).

18.Defendant has pleaded guilty and is therefore entitled to one-third sentencing discount, bringing the sentence to 38 months. 

19.As he used to have a clear record, I am willing further to reduce the sentence by 2 months, bringing it to 36 months.

20.The defendant has also volunteered information to the employer, ie by returning the pawn tickets and volunteering information to the employer leading to the recovery of all the jewellery.  I am willing further to reduce his sentence by another 2 months.

21.Accordingly, the defendant is sentenced to a total of 34 months’ imprisonment.