HKSAR v. Lai Tat Kwong

DCCC 801/2018

[2019] HKDC 527

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 801 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of theft, contrary to section 9of the Theft Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by the defendant. In summary the defendant had worked as a goldsmith in Chow Sang Sang Jewellery Company Limited in their factory in Cheung Sha Wan since 1992.

3.Between January 2018 and May 2018 the defendant stole 80.765 taels of gold from his employer.  The value of the stolen gold is $995,024.80.

4.The theft came to light on 28 May 2018 when the defendant went to the Sham Shui Po Police Station and told the police he had stolen gold from his employer.  The defendant said that between January and May 2018 he stole a total of 90 taels of gold worth $1.1 million.  The defendant sold the gold and produced ten receipts for 46.733 taels of gold.  

5.PC 22700 then arrested the defendant.  In two video recorded interviews the defendant explained how he stole the gold and how he was able to cover up the theft.  

6.In summary the defendant explained that during the manufacturing process gold bits would be left over which the goldsmiths could keep in their toolboxes for future use.  The amount of the gold bits would be checked each month on the Stock Check Record day against the Gold Usage Record. 

7.Prior to the Stock Check Record day, the defendant melted the gold bits into one piece which he then sold.  To cover up the theft the defendant submitted the gold issued for the next month so that the amount of the gold bits he kept looked reasonable. 

8.The defendant said he could not be sure of the exact amount of gold stolen; that he lost all the money gambling and that he surrendered to the police because he wanted to stop his wrongdoing and take responsibility. 

9.Prior to the defendant going to the police station his employer was unaware that any gold was missing.  After being notified by the police the employer discovered that 80.765 taels of gold with a value of $995,024.80 were missing from the defendant’s toolbox.

Mitigation

10.I have carefully considered everything said on behalf of the defendant by Mr Yip including that the defendant voluntarily surrendered to the police before his employer knew of his wrongdoing. 

11.I accept the defendant is remorseful.  I note however the defendant is not in a position to compensate his employer.

12.I also take into account the long service record of the defendant with his employer and that he has a clear record.

Guidelines

13.By stealing the gold, the defendant breached the trust placed in him by his employer. In passing sentence, I have considered the principles laid down in R v Clark[2] as applied inHKSAR v Cheung Mee Kiu[3] as adjusted in HKSAR v Ng Kwok Wing[4]. 

14.The guidelines state the proper starting point after trial is between 2 to 3 years’ imprisonment where the amount stolen was between $250,000 to $1 million. 

15.In determining the sentence the following matters are to be considered: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the theft was perpetrated; (iii) the use to which the money dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect upon fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; and (ix) those matters of mitigation special to himself such as illness[5]. 

16.Taking into account the degree of trust reposed in the defendant who as a goldsmith was allowed to keep the gold bits; almost $1 million worth of gold was stolen over a period of five months; the defendant used the money obtained from selling the gold for gambling; the defendant is not in a position to compensate his employer; the defendant went to the police before his employer knew of his wrongdoing and the long service and clear record of the defendant, I am satisfied the proper starting point after trial is 2 years and 9 months’ imprisonment.

17.Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 10 months’ imprisonment.

18.Mr Yip submits that a further discount should be given for the defendant’s voluntary surrender to the police.  In support Mr Yip relies on R v So Man King where the Court of Appeal held that voluntary surrender to the authorities by illegal immigrants warranted a substantial discount[6]. 

19.I am satisfied this discount was specifically to encourage illegal immigrants to surrender and does not have general applicability in all cases. 

20.In addition in HKSAR v Ma Ming[7] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

21.The Court of Appeal in HKSAR v Ngo Van Nam[8] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

22.Mr Yip accepts that at some stage the employer may well have discovered the theft when conducting the stock checks.  

23.In all the circumstances and having taken into account the fact of voluntary surrender in determining the appropriate starting point, I am satisfied no additional discount is warranted. 

24.The defendant is convicted and sentenced to 1 year and 10 months’ imprisonment.