HKSAR v. Yip Hing Ming

DCCC 316/2018

[2018] HKDC 1038

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 316 OF 2018

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

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

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

REASONS FOR SENTENCE

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

1.The defendant pleaded guilty to 7 counts of “Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210.

Facts

2.“Brown Gems (HK) Limited” (“Shop 1”) carried on the business of diamond trading at the address as particularized in charges 1-5. Owner of Shop 1 came to know the defendant as a jewelry trading agent during a jewelry exhibition in 2014.  Shop 1 had since had around 6 transactions with the defendant, which were all successful.  In those transactions, the defendant did not pay Shop 1 immediately, but he usually paid within 10 days after obtaining the diamonds from Shop 1.

3.Subsequently, on 5 occasions as particularized in charges 1-5 respectively, the defendant obtained diamonds from Shop 1 without making any payment.  As a result, Shop 1 had suffered a loss of diamonds in the total value of around HK$2.38 million.

4.“Gopal Gems Limited” (“Shop 2”) carried on the business in jewelry trading at the address as particularized in charge 6. Owner of Shop 2 came to know the defendant in 2014 during the same jewelry exhibition mentioned above.

5.On 4 May 2015, the defendant visited Shop 2 and obtained diamonds from Shop 2 allegedly for selling to a customer of the defendant. It was orally agreed that if the defendant’s customer accepted the diamonds, the defendant should pay for the diamonds.  The defendant could not be contacted after 15 May 2015 and had not made any payment for the diamonds.  As a result, Shop 2 suffered a loss of diamonds in the total value of around HK$207,000.

6.“Sunmohit Dimon Limited” (“Shop 3”) carried on the business of diamond selling at the address as particularized in charge 7.  The defendant had been employed as a salesman at Shop 3 since February 2014.  He was mainly responsible for liaising with the Chinese customers of Shop 3.

7.On 13 May 2015, the defendant claimed that a regular customer in Shenzhen would like to buy some diamonds.  On 14 May 2015, the defendant was able to obtain from Shop 3 diamonds allegedly for selling to the said customer.  After the defendant had obtained the diamonds from Shop 3, he could not be contacted.  As a result, Shop 3 suffered a loss of diamonds in the total value of around HK$1.93 million.

8.According to the travel movement records, the defendant departed Hong Kong via Lo Wu at 11:36 p.m. on 14 May 2015.

9.The three shops reported the matter to the police in late May 2015.   

10.On 24 February 2018, the defendant was intercepted when he entered Hong Kong via the Shenzhen Bay Control Point.  In a subsequent video-recorded interview, the defendant only admitted that he was employed as a salesman of Shop 3.    

Mitigation

11.The defendant is aged 35, single and lives with his mother.  His elder sisters are married and living apart.  His elder brother and his family reside in the Mainland.  He has a clear record.

12.In mitigation, it was revealed that the defendant came to Hong Kong in 1998 at the age of 16.  After completing a 3-year course at the Vocational Training Council, he went to work in the United Kingdom for 4 years.  Thereafter, he returned to Hong Kong in 2011 and started his own jewelry trading business in Shenzhen in 2012.   Since 2013, he started to work for Sunmohit Dimon Limited, the victim of charge 7.  He later came to know the other two victims and became their agent.  Everything went smoothly until the customers of his business in Shenzhen failed to pay him on time or at all.  The bad debts became more serious causing him serious problem of cash flow.  As a result, he pawned the diamonds of the victims to get cash for gambling, hoping to be able to win some money to solve the problem.  At the end, he lost all the money.  He was panic and confused and decided to hide in the Mainland.  During his stay in the Mainland, he tried to engage lawyer to pursue the customers for the outstanding debts but in vain.    As the defendant’s mother is suffering from dementia, the defendant decided to return to Hong Kong to make sure the mother is well taken care of.  He was intercepted when he returned to Hong Kong. 

13.It was submitted that the defendant was very remorseful and was sorry that he was not able to compensate the victims.  Given the health condition of his mother, the court was urged to impose a lenient sentence on him.    

Sentence

14.The present case is a serious case of theft involving breach of trust against 3 victims.  In respect of the first victim, the total value of diamonds stolen is around HK$2.38 million (charges 1-5).  In respect of the second victim, the total value of diamonds stolen is around HK$207,000 (charge 6).  In respect of the third victim, the total value of diamonds stolen is around HK$1.93 million (charge 7).  The total value of all stolen diamonds in relation to all charges is around HK$4.53 million. 

15.The Court of Appeal has laid down sentencing guideline for theft involving breach of trust (see HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 770 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017).  For theft of less than HK$250,000, the sentence is less than 2 years.  For theft of HK$1 million to HK$3 million, the sentence ranges from 3 to 5 years.

16.Charges 1-5 relate to the same victim.  I consider it appropriate to adopt a global starting point for charges 1-5.  Given the total amount involved is around HK$2.38 million, the appropriate starting point is 4 years and 3 months.  The sentence for each of charges 1-5 is reduced to 34 months for the defendant’s plea.

17.For charge 6 which involves an amount of around HK$207,000, I consider the appropriate starting point to be 21 months.  Given the defendant’s plea, the sentence is reduced to 14 months.

18.For charge 7, the amount involved is around HK$1.93 million.  The appropriate starting point is 4 years.  The sentence is reduced to 32 months for the defendant’s plea.

19.Apart from the defendant’s plea, there is no other mitigating factor justifying further reduction of the sentence.  Taking into consideration the totality principle, I consider a total sentence of 42 months will be sufficient to reflect the criminality of the defendant’s act. I therefore order that the sentences for charge 1-5 to run concurrently, that 4 months of the sentence for charge 6 and 4 months of the sentence for charge 7 to run consecutive to the sentences for charges 1-5, making a total sentence of 42 months.  I hereby sentence the defendant to a total sentence of 42 months’ imprisonment.