HKSAR v. Song Wende

DCCC 776/2018

[2019] HKDC 16

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 776 OF 2018

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REASONS FOR SENTENCE

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1.A thief pulled a fast one on the sales assistants of jewellery’s shop by sleight of hand – a little sleight of hand but not a slight crime – the thief had stolen two expensive diamonds worth, in total, over a million dollars from two jewellers within a period of three weeks.

2.The defendant, a Mainlander who is the thief in question, pleaded guilty before me to two counts of theft – the subject matter of the first offence is a 2-carat diamond worth $566,558 (Not recovered)(Charge 1) while the second offence concerns a 2.39-carat diamond worth $410,000 (Recovered)(Charge 2). His other charge (Charge 3) of going equipped for stealing (in possession of 3 pieces of gemstone) is left on court’s files.

3.In the afternoon of 19 December 2017, the defendant, posing as a customer, visited a jeweller’s shop in Whampoa Garden, Hung Hom, and asked to look at some diamonds. The unsuspecting sales assistant showed him a 2-carat diamond on a display tray, and by sleight of hand the defendant quickly replaced the diamond with a worthless fake one. By the time the sales assistant discovered it, the defendant had long gone.

4.About three weeks later on 11 January 2018, the defendant played the same old trick yet again in a different jeweller’s shop in Tsim Sha Tsui. This time luck was not on his side – he did replace a diamond worth $410,000 with another fake one, but no sooner had he stepped out of the shop than the sales assistant found it out. She then chased after him shouting for help along the way; it just so happened an off-duty police officer was passing by, who eventually caught the defendant and recovered the stolen diamond. Also found on him were 3 pieces of worthless gemstones.

5.The defendant, a 48-year-old man, does not have any prior conviction. He is married with two children- a daughter (19) and a son (12). The wife is a stay-at-home mom while the defendant runs a clothes store in the Mainland. The family live with the defendant’s mother (87), who is now bedridden because of illness.

6.As to the reasons for committing the crimes, counsel said, it was because the defendant was heavily in debt at the time. The court heard that the defendant had sold off the stolen diamond and repaid his gambling debt.

7.In mitigation, counsel for the defendant stressed that it was a simple theft in that it involved no sophisticated equipment in committing the offence and it was done without any accomplices.

8.Clearly the defendant is a professional thief albeit a lone one– his swift movement of hands could easily fool a lot of people as evident in the ease with which the two sales assistants had fallen victim to him. It may seem simple on the face of it as defence counsel has argued, but it certainly requires skills which have to be acquired over a period of time and it is not no sooner said than done.

9.Judging from his movement records, it is obvious, in my view, that his sole purpose of visit on both occasions was to steal and defence counsel indicated that he would not argue otherwise.

10.Given the facts of the case, I take 3 years as starting point for each of the offence, reduce it to 2 years for his timely plea. Taking into account the totality principle, I order that 6 months of charge 2 be run consecutively to charge 1, the total term is one of 30 months’ imprisonment.

11.The court is told by the prosecution that the defendant has HKD$2,275 and RMB$4,500 in his prisoner’s property, that’s the money the police found on the defendant at time of his arrest. In exercising my power under Section 73 of CPO, I order that the monies (HKD$2,275 and RMB$4,500) be paid to the victim of charge 1 as part compensation.

12.In Neoh Hooi Mei CACC 408/2013, the Appellate Court said that when the trial court exercising its power under Section 73, the defendant’s consent is irrelevant and for that matter, he is not entitled to any discount of sentence.