HKSAR v. Chan Ka Chun

DCCC 293/2019

[2019] HKDC 1535

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 293 OF 2019

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REASONS FOR SENTENCE

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1.The defendant was charged with one charge of theft that he in between 19 October 2015 and 21 December 2015, in Hong Kong, stole about 60 pieces of electronic products and accessories, the property belonging to Hong Kong Suning Commerce Company Limited.

2.The facts of the case were that between December 2012 and April 2015, the defendant worked as a salesperson for Suning Commerce Company Limited selling electronic products and accessories.

3.In between October and December 2015, he was promoted as the assistant shop manager of the Yuen Long branch of the company and was entrusted with the access codes for the company’s computer system.  The defendant took advantage of the loophole in the company’s computer system and had on various occasions managed to convince staff of other branches that there were demand requests from its branch for products which its branch did not carry.  With their consent, he collected products in person from other branches during off duty hours and resold all those stock at the second-hand market in Mong Kok and spent all the proceeds in football betting.  He took advantage that there would be a time lapse between the stock being taken out from the branch and to be registered in the computer system so that he was able to obtain those electronic products without being detected.

4.The defendant has stolen about 60 pieces of electronic products and accessories belonging to the company with an estimated value of about HK$1 million.

5.The matter was revealed in December 2015 during an audit check.  The manager of the company, Mr Kwok, enquired with the defendant and on 21 December 2015, during which he confessed that he stole the goods from the company whilst he worked at Chung On Street and Yuen Long branches. He was first suspended from work and later his employment was terminated.

6.On 1 February 2016, he wrote a special incident report form which he voluntarily made and expressed that he felt guilty about his act.

The background and mitigation

7.The defendant is now 33 years old.  His parents are divorced and he has an elder brother who financially supported the mother who is now 65 years old and retired.  The defendant has now moved out of his mother’s home in a public housing estate and is now living with his pregnant wife.  The defendant said he still took care of his mother’s household expenses as, for example, paying for her rental.  From copies of certificates of merits for participating in school activities and voluntary work performed by the defendant from the year 1999 to 2010, the defendant had led a law-abiding clean and healthy life.

8.Counsel for the defendant informed me that the defendant first committed the present offence to settle debts of around HK$30,000 due to friends.  Then out of greed, he continued to take goods from the company and traded them for monies which he gambled away.

9.At the last hearing in August 2019, on the application by the defendant and upon the prosecution indicating no objection to the application for an adjournment, the sentencing was adjourned until today to facilitate the defendant’s plan for restitution for the loss of the victim’s company.  However, the plan did not come to fruition.

Reasons for sentence

10.Although the defendant has a similar record on 3 January 2019, since it was committed after the commission of the present offence, I have treated him as a person of a clear criminal record.

11.I cannot agree that the defendant surrendered to the victim’s company which is indicative of his remorse.  In fact his crime was detected during the victim’s company audit check and he was confronted by his supervisor.  The offences were committed during a period of time from October to December 2015, so it was not an impulsive act.

12.The defendant was arrested in February 2016 and was granted bail between the end of 2016 after which he was temporarily released.  He was then rearrested and formally charged in 2019.

13.The prosecution informed me that the delay of laying charge are for the following reasons.  It took 1 year and 9 months for the police to gather the evidence against the defendant and it amounted to taking a number of witness statements and to review a number of stock records.  It was then on 15 November 2017 that the first legal advice was sought from the Department of Justice.  The Department of Justice gave their first opinion on March 2018 which took about half a year, but the legal advice requested for further investigation.

14.Then on February 2019, that is 10 to 11 months later, the second request for opinion which has been prepared by the police was forwarded to the Department of Justice and it was later decided that there was sufficient evidence to charge the defendant of the present offence.  Therefore, the defendant was rearrested in March 2019.  The defendant was then taken to the Western Kowloon Magistracy on 22 March 2019.

15.During the time when he was first arrested and released on bail in 2016, in the end of February, the defendant was not required to attend the police for his bail.  He was released and he was able to lead a normal life.  I appreciated that for offences like this it would require time in order to prepare the documents and to review all the computer records, and it is also well known that the Department of Justice is very busy and it took about half a year to produce the second opinion.  I do not think that was unreasonable.  In that respect, I do not consider there is a delay in the prosecution.

16.This is a clear case of breach of trust in that the defendant stole from the employer’s company.  As the counsel for the defendant submitted, for stealing around $1 million from his employer, the appropriate starting point is one of 3 years’ imprisonment.  Other than his guilty plea which usually attracts a one-third discount in his sentencing, there are really no other mitigating circumstances to reduce his sentence.  I now therefore sentence the defendant to a term of 2 years’ imprisonment.