HKSAR v. Lee Man Chun

DCCC 237/2022

[2022] HKDC 1235

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 237 OF 2022

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Theft". He, acting in concert with an unknown person, stole a total of 720 mobile phones (valued at US$190,380).

Summary of Facts

2.On 11 December 2021, Yellow spot communications Limited ("Yellow spot")  purchased 720 iPhones (collectively "the iPhones")  from a company in Shenzhen at the price of US$190,380.

3.On 14 December 2021, a staff member of Yellow spot (Mr. Wu)  went to the mainland to collect the iPhones.  Having verified the quantity, Mr. Wu packed the iPhones in 5 green gunny sacks and delivered them to a logistics company for export to the United States.

4.The iPhones reached Hong Kong on 16 December 2021.  They were stored at Well Fung Industrial Centre, No.68 Ta Chuen Ping Street, Kwai Chung ("the Warehouse")  pending onward shipment.

5.At 8:30 a.m. on 17 December 2021, a delivery worker moved the iPhones to the lift lobby on the 5^th Floor of the Warehouse.  They were left there unattended.  Around 8:27 p.m. on the same day, another delivery worker tried to collect the iPhones but found them missing.

6.The defendant was arrested on 23 December 2021.  Under caution, he admitted stealing 5 boxes of goods.  In his video recorded interview, the defendant claimed that he was a lorry driver.  He was at the Warehouse to pick up goods around 6:00 p.m. on 17 December 2021.  He saw 5 boxes of goods contained in green gunny sacks lying around on the 5^th Floor of the Warehouse. He thought they were mobile phones and decided to steal them out of momentary greed.  The defendant admitted pulling the forklift which contained the 5 boxes of goods to the 5^th Floor rear staircase.  He then called a friend "Ah Lun" to pick up the goods.  On 18 December 2021, the defendant received HK$45,000 from Ah Lun after selling the goods.

7.CCTV footage of the Warehouse captured the defendant and an unknown male stealing the iPhones contained in green gunny sacks in the late afternoon on 17 December 2021.

Mitigation & Sentence

8.The defendant is 36 and has 6 conviction records, which included 2 "Theft" offences and 3 "Robbery" offences. Defence counsel Mr. Slutsky informed me that the defendant is married with a daughter (aged 12). He is the sole breadwinner of his family. Prior to his arrest, he was a lorry driver earning HK$25,000 per month.

9.In mitigation, Mr. Slutsky explained that at the time of the offence, the defendant was the driver of a logistics company and he was sent to the Warehouse to pick up certain goods. The defendant did not know about the existence of the iPhones at the Warehouse through his job; he just happened to be there and saw the iPhones lying around unattended. Mr. Slutsky submitted that what the defendant did was an opportunistic and unsophisticated theft. Mitigation letters were placed before me; their contents are duly noted.

10.Notwithstanding Mr. Slutsky's written submissions[1], I do not consider this case involves the Barrick type of breach of trust. I, however, still find the sentencing guidelines laid down in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow those guidelines or impose a sentence which is higher or lower than those guidelines, depending on the facts of each case.

11.According to Ng Kwok Wing, if the amount stolen is between HK$1 million and HK$3 million, the starting point is 3 to 5 years' imprisonment. The value of the iPhones was US$190,380 (i.e. approximately HK$1.5 million). Applying a strict arithmetical approach, the starting point for theft of HK$1.5 million is 3.5 years' imprisonment. I consider the defendant's culpability less serious than the type contemplated in Ng Kwok Wing. Hence, I will adopt a starting point lower than the range specified by the guidelines. A starting point of 3 years' imprisonment is sufficient and just in the present case.

12.As the defendant's previous convictions of theft-related offences took place almost 20 years ago (when he was in his late teens), I would not increase the starting point this time. I am also aware that the defendant acted in concert with another person, but there is no need to increase the starting point either based on the modus operandi of stealing in this case. With the timely guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 2 years' imprisonment.