HKSAR v. Ho Tung Shan Happy and Another

HCCC 140/2023

[2026] HKCFI 4429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 140 OF 2023

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REASONS FOR SENTENCE

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1.D1 and D2 pleaded guilty to one joint charge of conspiracy to steal[1]. D2 pleaded guilty to an additional charge of conspiracy to steal; and one charge of conspiracy to handle stolen goods[2]. They were committed by Magistrate Mr. Lam Tsz-kan on 29 May 2023 to the Court of First Instance for sentence. Before me, they confirmed their pleas and their admissions to the Summary of Facts, and the convictions were duly recorded.

COUNT 1: CONSPIRACY TO STEAL (D1 AND D2)

2.Particulars are that D1 and D2, between 1 January 2017 and 2 February 2017, both dates inclusive, at Goodman Interlink, No. 39 Tsing Yi Road, Tsing Yi, Hong Kong, conspired together with NG Yiu-lun and CHEUNG Ka-wai to steal 123 wallets and 601 handbags, properties belonging to CHANEL Hong Kong Limited.

COUNT 2: CONSPIRACY TO STEAL (D2 ONLY)

3.Particulars are that D2, in June 2016, at Goodman Interlink, No.39 Tsing Yi Road, Tsing Yi, Hong Kong, conspired together with HO Tung-shan Happy, NG Yiu-lun and CHEUNG Ka-wai to steal fashion items, properties belonging to CHANEL Hong Kong Limited.

COUNT 3: CONSPIRACY TO HANDLE STOLEN GOODS (D2 ONLY)

4.Particulars are that D2, between 23 January 2016 and 2 February 2017, both dates inclusive, at Room 36, 1^st Floor, Genplas Factory Building, No.5 Hoi Yuen Road, Kwun Tong, Hong Kong, conspired together with NG Yiu-lun and CHEUNG Ka-wai to dishonestly undertake or assist in the retention, removal, disposal or realization of stolen goods, namely fashion items, the properties of CHANEL Hong Kong Limited, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

SUMMARY OF FACTS

5.Chanel Hong Kong Limited (hereinafter as ‘Chanel’) is an international fashion company that runs the fashion brand Chanel in Hong Kong.  The company has been renting the 5^th and 23^rd floors of Goodman Interlink since 2012 for storing their products as well as for use as their office.

6.For commercial operation purposes, Chanel would destroy about 10,000 to 20,000 items of their fashion products once every 3 to 6 months, using their shredding machine located on the 5^th floor.

7.The process of destruction begins with the company deciding which items are to be destroyed, informing their warehouse manager, a Mr. Wong at the material time, and arranging for an independent inspector to check the items.  Once checked, Mr. Wong would instruct the warehouse staff to unpack the products and put them into carton boxes and taken to the 5^th floor and destroyed.  The emptied carton boxes would not be destroyed but be reused.

8.Although the independent inspectors would often be present during the destruction process, they would not check the number of products again.

9.Warehouse staff of Chanel would use goods lift number 7 (“the no.7 lift”) to move goods between the 5^th and 23^rd floor.  Although all tenants of the building could use the no.7 lift, its doors on the two floors are always locked by Chanel.  There is also a rolling shutter gate outside the lift doors on both floors.

10.To use the no.7 lift to access the two floors, a staff would have to do three things.  Ask a department manager to enter the code to unlock the lift and obtain the keys to the rolling shutter gate and the lift doors.  There are two sets of the two keys, one set with the security counter on the 5^th floor, one with the warehouse on the 23^rd floor.

11.At all material times, D1 and D2 were both Chanel warehouse keepers.  Ng Yiu-lun, a named co-conspirator in count 1, was an import manager of Chanel and had the code to the no.7 lift.  Cheung Ka-wai, the other named co-conspirator, was a former employee of Chanel.

12.In October 2016, Chanel received email complaints from an unknown source against Ng Yiu-lun and his wife for selling a large amount of Chanel products online at low prices and an investigation process was instigated by the company’s senior management, with particular focus on the warehouse staff.

13.On 20 January 2017, when warehouse manager Mr. Wong’s team were working on 5/f, D1 and D2 suddenly of their own initiative asked to go clear up the garbage on 23/f.  Mr. Wong told them they could do that another day.  D1 insisted and so Mr. Wong told them they could do it.

14.On 23 January, feeling suspicious, Mr. Wong informed his superior Mr. Yuen, Chanel’s Logistic Manager, about what had happened.

15.On 24 January, while going over the old 20 January CCTV footages, Mr. Yuen saw that D1 and D2 had put some products into carton boxes on 23/f and then placed the boxes at a hidden area on that floor at about 4pm on that day.

16.Mr. Ng, the warehouse assistant manager, was then sent to check out those boxes and he found many Chanel products inside.  Upon checking their serial numbers, it was confirmed that they were products that should already have been destroyed.

17.D1 and D2 were then arranged to only work on 5/f, and the warehouse assistant manager was instructed to keep an eye on the two of them.  Regular checks were done on the goods hidden by D1 and D2 on 23/f and they remained in the same place up to and including 1 February.

18.On 1 February, the 5^th day of the Chinese New Year (年初五), via live CCTV footages, Mr. Yuen saw D1 alone at the said hidden area on 23/f and stayed there for about 3 hours, taping up the carton boxes there.

19.Mr. Yuen suspected that D1 and D2 would be moving the products out of 23/f using the no.7 goods lift, and so he gave instructions for them to be tasked with moving some used carton papers on the next day, 2 February from the 23^rd to the 5^th floor for destruction.

20.On 2 February, at around 10am, Mr. Yuen and the Senior Logistic Manager, Ms. Peng, watched via live CCTV footages D1 and D2 moving carton papers on 23/f into the no.7 lift.  At that time, D1 and D2 were accompanied by a security guard of Chanel, Mr. Tsang.

21.Between 10 and 11am, D1 and D2 used pallet jacks to move a large amount of folded up carton boxes from 23/f to 5/f in three goes.

22.At the end of the third go, D1 waved the security guard who had been accompanying them away and Mr. Tsang did leave the goods lift area.

23.At around 11am, a person, not D1 or D2, went up to 23/f using the no.7 lift.  This person would later be identified as Cheung Ka-wai, one of the named co-conspirators in count 1.

24.D1 and the said Cheung were then seen to move a total of 6 pallets of carton boxes, 33 in total, into the no.7 lift.  After all the carton boxes were moved into the lift, Cheung rode alone in the lift with the boxes down to UG floor of the building.

25.Seeing that, Mr. Yuen immediately informed warehouse assistant manager Mr. Ng, whom Mr. Yuen had sent to UG floor carpark area earlier that day to keep an eye out for any suspicious vehicles, by way of WhatsApp messages.

26.At around this juncture, while keeping watch on UG floor, Mr. Ng, the warehouse assistant manager, saw Ng Yiu-lun there, suspiciously looking at the no.7 lift door.  Ng Yiu-lun left UG immediately after he saw Mr. Ng.

27.Meanwhile, when the no.7 lift reached UG and its door opened, Cheung Ka-wai was seen moving one pallet of carton boxes to a truck that was parked near the lift.  Mr. Ng the warehouse assistant manager kept observing from a distance before going up to intercept Cheung Ka-wai.

28.The case was reported to the police and officers soon arrived.

29.The 33 carton boxes that D1 and Cheung Ka-wai had moved from 23/f to UG were inspected subsequently and found to contain the particularized items in count 1. They were also confirmed by Chanel to all be products of Chanel that should already have been destroyed in January 2017.

30.D1, D2, Ng Yiu-lun and Cheung Ka-wai were all arrested.

31.D1 admitted under caution to have stolen the Chanel products with D2 because he wanted to sell them to make some money.  In his subsequent video recorded interview, D1 said that he knew D2, Ng and Cheung; that it was Ng Yiu-lun who told him to move the Chanel products into the lift that day; that Ng Yiu-lun had a list and knew what products would be destroyed; that since January 2017, Ng Yiu-lun had been instructing he and D2 to pick out the stolen items from the products marked for destruction; that Ng said he had ways to sell the stolen products; that he and Ng and D2 had sat in D2’s car in the evening of 1 February and discussed how to move the stolen goods the following day; that they knew the company had break time at 11am and so decided to move the stolen goods into the lift at that time; the plan was for Cheung Kar Wai to help move the goods into the lift on 23/f with D1; that D1 would then stay on 23/f while Cheung would go to UG with the goods alone and to move them into a vehicle and drive them away to a place in Kwun Tong which D1 had no idea about.  D1 said that while their operation was going on, he received a call from D2 who said Ng Yiu-lun had said that they had been exposed and that Cheung Kar Wai had been caught.  D2 told D1 not to make any admissions.  D1 claimed that this was the second time that he had stolen goods from Chanel, the first time being about 2 years ago.  On that previous occasion, D1 himself, D2, Ng and Cheung were also all involved.  They stole products that were about to be destroyed upon the instructions of Ng.

32.D2 admitted under caution upon arrest that he had stolen the goods that Chanel did not want out of greed.  Police found 2 keys to a storeroom at Room 36, 1/f, Genplas Industrial Building, no.5 Hoi Yuen Road, Kwun Tong, Hong Kong from D2’s address in Tai Po.

33.In his subsequent video recorded interview, D2 claimed under caution that he and D1’s job duties included destroying products unwanted by Chanel.  He claimed that the goods to be destroyed were sent to a department and they were poor in keeping check of the actual quantities of goods to be destroyed.  Staff of the warehouse therefore had a practice of keeping a small quantity of say 10 to 100 items every time so that in case the number being sent by the department was less than the actual received quantity, they could use the saved up items to make good the number in order to satisfy the independent inspectors.

34.D2 said that when he, D1 and Ng Yiu-lun found that they could take away the products without Chanel finding out, they wanted to sell them to make money.

35.D2 admitted that he, D1, Ng and Cheung had stolen about 10 carton boxes of products from Chanel in June 2016, which included 90 handbags (charge 2). D2 claimed that Ng Yiu-lun was the person who planned how to avoid the stolen products being checked by the independent inspector and to keep the products.  D2 said Cheung, a former warehouse worker of Chanel, was a friend of his as well as Ng Yiu-lun.  It was Ng who invited Cheung to work together with the 3 of them.  Cheung was responsible for moving the stolen goods away from the UG floor.  Ng was the one who decided on which day the stolen products would be taken away.  D2 claimed that he, Ng and Cheung had rented the Kwun Tong storeroom to store the stolen goods, at a rental fee of about $4,000 to $5,000, which was shared between himself, Ng and Cheung.  D2 had the key to the storeroom and he had been there.  D2 claimed that Ng Yiu-lun and Cheung Ka-wai were responsible for selling the stolen products.  Before the selling, himself, Ng and Cheung would go to the storeroom to pick out the products together.

36.D2 admitted that he had received cash of $30,000 to 50,000 from Ng and Cheung after they had sold the stolen products in Charge 3.

37.On 2 February 2017, D2 said he and D1 had received company instructions to move scrap papers from 23/f to 5/f that day, and they agree for D1 to take the scrap papers on 23/f into lift no.7, and then D2 would bring them down to 5/f.  Then at 11am, during company break time, Cheung would go up from UG to 23/f in the no.7 goods lift and receive the stolen goods from D1 and D2 himself.  Cheung would bring the goods down to UG.  During their operation, Ng Yiu-lun had called D2 and said that they had been found out.  Ng Yiu-lun told D2 not to say anything.  D2 then called D1 and told him what Ng Yiu-lun had said.  D2 then deleted the call records.

38.In the present case, in relation to the 33 carton boxes, D2 claimed that Ng Yiu-lun had started planning to steal them since mid-January 2017.  D2 also claimed that the 4 of them would also discuss about that when dining together.

39.The entire incident that took place on 2 February 2017 at Goodman Interlink was captured via CCTV cameras located at different places in the building, showing clearly the movements of D1, D2, Ng Yiu-lun and Cheung Ka-wai.

40.The mobile phones of D1, D2, Ng Yiu-lun and Cheung Ka-wai were seized, and call records were obtained.  They show that up to 31 January 2017, D1, D2, Ng and Cheung only contacted each other occasionally, and with no regular patterns.

41.From 31 January to 2 February 2017, Ng had frequent contacts with D2 and Cheung, with 8 calls between Ng and D2, and 19 calls between Ng and Cheung in this 3-day period.

42.On the day of the incident, between 10am and 11:15am, D2 had 10 calls.  All were either with D1, Ng or Cheung.

43.During the same period, Ng had 14 calls.  13 of them were with either D2 or Cheung.

44.During the same period, Cheung had 13 calls.  11 of them were with D1, D2 or Ng.

45.D2 had a call with Ng Yiu-lun at 11:11am on 2 February for 42 seconds.  Once that call had ended, D2 immediately called D1 and that call lasted 30 seconds.

46.Investigation further revealed that D2, Ng Yiu-lun and Cheung Kar-wai had rented the storeroom in Kwun Tong since 23 January 2016 (charge 5).

47.According to Chanel, the production costs of the stolen products in charge 1 was HK$8,241,077, with a retail value of HK$19,098,600.

48.For charge 2 and 3, the production costs for the 90 handbags that D2, Ng and Cheung had conspired to steal and handle was at least HK$525,780, and the retail value was at least HK$1,179,000.

PREVIOUS CONVICTIONS

49.Both D1 and D2 are of previously clear record.

BACKGROUND AND MITIGATION

D1

50.D1 is 35, born in Hong Kong and educated up to secondary level.  He began working for Chanel as a warehouse assistant in 2012 with a monthly salary of $12,000.  He was raised by his mother singlehandedly after his parents’ early divorce.  They now live together with his younger brother.

51.Mr. Caesar Lo, Counsel for D1, accepts that D1 was in breach of the trust reposed in him by Chanel when he committed count 1, and that the sentencing guidelines laid down in HKSAR v Cheung Mee Kiu (04/12/2006, CACC99/2006) [2006] 4 HKLRD 776, as modified in HKSAR v Ng Kwok Wing (吳國榮) (27/06/2008, CACC398/2007) [2008] 4 HKLRD 1017 are applicable.

52.Mr. Lo reminded the court that the sum involved is obviously not the only factor to be considered.  The other factors include the quality and degree of trust reposed in the offender; the period over which the proposed theft was perpetrated; the use of the stolen property; the impact of the offences on the public and public confidence; the effect on fellow employees; the effect on the offender; his own history; any delay between being found out and the start of his trial; and any help given by him to the police.

53.Mr. Lo also fairly pointed out that aggravating factors would include whether he acted jointly with others; whether there were multiple victims; whether the offender took up the position of trust so as to commit the theft; whether the theft was premeditated and carefully executed; and whether the offender is a repeat offender with numerous previous convictions.  (HKSAR v Ng Kwok Wing, supra)

54.In relation to the value of the stolen goods, Mr. Lo referred to HKSAR v Lee Oi Lin, Irene also known as Lee Sze Yiu (14/03/2012, CACC166/2011) [2012] 4 HKLRD 212 where the court states that the value of the stolen property should not be calculated solely by reference to the price of the raw materials, and the court should be concerned with the value of the stolen goods and the economic loss suffered by the owner as a result of the offence.  The value of the stolen goods should also reflect factors such as design and profit, apart from the raw materials.

55.In relation to the factor of delay, Mr. Lo relies on HKSAR v Chiu Chi Wing (18/10/2013, CACC243/2012), where factors identified as being relevant to delay as a mitigating factor were found to include where during the delay the offender has made progress towards rehabilitation; and where the delay had resulted in significant stress to the offender or had left him in uncertain suspense.

56.By his calculation, Mr. Lo finds that an arithmetical application of the Cheung Mee Kiu guidelines based on the production costs and the retail price of the stolen goods would lead to respective starting points of 7 years 2 months and “10 years or more”.

57.Mr. Lo accepts that aggravating features are present: the conspiracy to steal involved 4 co-conspirators; premeditated and well executed.

58.Mr. Lo, however, points out that the degree of trust reposed in D1 was not high given his job as a mere warehouse assistant.  D1 was not even trusted with the code to use the goods lift, nor the keys to the lift and the rolling shutter to access the lift.

59.Mr. Lo submits that D1’s role was minor and subordinative.  He was merely a courier and not the mastermind.  His involvement was limited to the removing of the stolen goods out of the warehouse but not the subsequent handling or sale.  He did not know the details of the Kwun Tong storeroom, nor did he contribute to its rental.

60.According to D1’s video recorded interview, he was promised an unspecified reward by Ng Yiu-lun, although he did say that he would receive a share of $30,000 to $50,000 on each occasion.  Mr. Lo accepts that D1 was a “cog in the wheel”, but stresses that he was never indispensable.

61.D1 did not take up the job in order to commit the offence.  He joined Chanel in 2012 and only committed the offence in 2017.  There was only one victim and D1 faces a single charge.  The period of the offence lasted about 1 month.  The victim company suffered no actual loss since all the stolen goods were intercepted and recovered at scene.  There is no impact on the public or public confidence, and no evidence on any impact on D1’s fellow employees.

62.As for the delay of almost a decade, calculated from D1’s arrest on 2 February 2017 to his being formally charged and brought to court in early 2022, and then to his plea and sentence hearing on 8 July 2026 of 4 and a half years later, Mr. Lo submits that the delay was through no fault of D1, and that there was no reason for such a delay given the relatively straightforward facts of the case, with D1’s detailed admissions, the immediate recovery of the stolen goods and the arrest of all offenders at scene.

63.In the 10 years since his arrest, D1 had been left in an “uncertain suspense”, forgoing career advancement opportunities.  Nevertheless, D1 had begun his current employment in 2017 after leaving Chanel and been working diligently for the past 9 years, earning the compliments of his supervisor and the said promotion opportunity.  It is his supervisor’s intention to offer D1 to rejoin their company after he had served his sentence.

64.It is Mr. Lo’s submission that the guidelines in Cheung Mee Kiu is not a straitjacket; that the company suffered no loss at all in the circumstances; that the property were supposed to already have been destroyed and therefore Chanel would have, of their own decision, suffered the loss of the production costs as well as any possible resale value the items might have had; that there is no specific figure in evidence as to how much the bags would actually have been worth at the time of the theft; that inflation might mean that an identical sum of money at the time of Cheung Mee Kiu would hold significantly more purchasing power then.

65.The present case represents a departure from a standard Cheung Mee Kiu situation where the starting point is anchored to the market value of the stolen property, which cannot be ascertain here.  Had the theft been completed, there was still no direct financial loss to Chanel, just a potential risk to its brand image of product rarity, which was maintained partly by destroying overproduced goods.

66.Lastly, Mr. Lo concluded by submitting that whilst the production costs or retail price may well be one of the factors to be considered, the focus of the court’s sentencing should be more on the breach of trust reposed in D1.

D2’S BACKGROUND AND MITIGATION

67.D2 was born in Hong Kong in 1985 and is now 41.  He was 31 at the time of the offences.  D2 had a close girlfriend back in 2015 but they broke up after D2’s arrest in 2017 and he has since been single.  D2’s parents divorced in 2005, and he has been living with his 68 year old mother and younger brother in a public housing unit.  D2’s mother is not of very good health and a tumor was found in her brain in 2025.  She is still under medical observation.

68.D2 worked in a supermarket after completing Form 5.  He joined Chanel in 2009 as a warehouse worker and was still there when arrested for this case.  His salary started at $6,000 and was at $12,000 last.

69.After D2’s dismissal by Chanel on 4 February 2017, he managed to find a job in September 2018 as a mover of a furniture warehouse earning the same wage.  He move to work at an cooking oil wholesaler in April 2019 earning $16,000 per month.  He has since been promoted to warehouse supervisor, earning $26,000 a month.

70.Mr. Adonis Cheung, counsel for D2, told the court that Ng Yiu-lun was D2’s warehouse supervisor when D2 joined Chanel, and when Cheung Kar-wai was also working there.  D2 had always worked according to Ng Yiu-lun’s instructions, because Ng was the person who would prepare his year-end assessment report, which would affect the level of his wage increase, or even his posting.

71.During the 7 to 8 years working at Chanel, D2 did come to know about the company’s annual large scale destruction of products operation, as well as other smaller scale ones.  The destruction operation that was ongoing on the day of his arrest was a large scale one.  D2 knew that the products that were destroyed were then sent to the landfills and he felt that it was a waste and an act that was not friendly to the environment.  He had also assisted in receiving goods from Japan and Korea that were also stored in the Hong Kong Chanel warehouse to await destruction, which again he found to be wasteful and bad for the environment.

72.In relation to count 2, D2 confirmed through Mr. Cheung that he was paid $30,000 by Ng Yiu-lun for D2’s part in the conspiracy to steal those Chanel goods.

73.D2 had not yet received anything for his part in the count 1 conspiracy to steal, nor for his part in the conspiracy to handle the stolen goods in count 3.

74.In relation to the starting point, Mr. Cheung firstly points out that the maximum sentence for conspiracy to steal in count 1 and 2 is that of 10 years’ imprisonment; whereas that for handling stolen goods in count 3 is 14 years’ imprisonment.

75.Mr. Cheung refers to the sentencing guidelines in Cheung Mee Kiu, the production costs of goods stolen in count 1 and 2, as well as the retail price of those products and points out that the circumstances of D2’s breach of trust was not the most serious.  D2 never had any authority to hold on to any of the goods and was just a manual laborer in the warehouse, helping to move the products to be destroyed.  The company had strict inspection and supervising procedure involving special personnel.  D2 was heavily supervised every time he accessed the 23/f.  As such, not a lot of trust was reposed in D2 by the company, and one may say that D2 was working within a system where he was distrusted as a warehouse worker by default.

76.Mr. Cheung stresses that the stolen goods were supposed to have been destroyed by the owner, as such, to base the sentencing process on the original retail value of the goods would not be fair.

77.In this regard, Mr. Cheung reminded the court that Chanel had suffered no losses in the present case because all the stolen goods had been intercepted and returned to its owner.  Even if the theft had been successful, the financial loss of Chanel would not have been higher than its retail price.

78.Mr. Cheung submits that the court should adopt the production costs value of the stolen items as the basis for sentencing, which is sufficient to reflect the criminality and culpability of D2’s conduct.

79.As for count 3, the handling stolen goods charge, Mr. Cheung rightly points out that there are no sentencing guidelines for this offence and suggests that the reason behind the commission of this count was to follow up with the arrangement of the stolen goods in counts 1 and 2, and submits that the sentence for this count should be ordered to be served concurrently with the sentences of counts 1 and 2.

80.Mr. Cheung also relies on delay as a basis for a discount in D2’s overall sentence, pointing out that D2 has been a law abiding and hardworking citizen in the 9 years between his arrest and sentence, and that he had suffered a lot of stress pending the disposal of his case.

SENTENCING CONSIDERATIONS

81.The maximum sentence on conviction upon indictment for conspiracy to steal is that of 10 years’ imprisonment, whereas that for conspiracy to handle stolen goods is that of 14 years’ imprisonment.

82.I have considered all the mitigation letters handed up by the two defendants.

COUNT 1: CONSPIRACY TO STEAL AGAINST D1 AND D2

83.It is not disputed that the commission of this count by D1 and D2 involved a certain degree of breach of the trust reposed in them as employees of Chanel.

84.I find, however, that the degree of trust reposed in them was of a low level, as reflected in Chanel’s requirement for all warehouse staff to be accompanied by an independent security guard when moving goods between 5/f and 23/f, as well as the fact that neither D1 nor D2 were given the code to use the no.7 lift, nor the keys necessary to unlock the lift doors and the rolling shutter gate outside that lift.

85.I find also that given the fact that all the goods conspired to be stolen were supposed to have already been destroyed by Chanel for commercial reasons, to sentence D1 and D2 by applying the Cheung Mee Kiu guidelines to the full former retail value of the stolen items would be unfair to the defendants.

86.Furthermore, there is no evidence of the actual market value of the goods when they were marked to be destroyed by Chanel.  There is no evidence of the possible market value of the stolen items had they been allowed to be sold in an open market.  The reason why the stolen items were earmarked for destruction was because they were unsold off-season products, to be destroyed to maintain the rarity status and value of the products that had already been sold, and in turn to enhance the reputation of the brand’s exclusivity.

87.Having taken into consideration the above, as well as counsel’s submissions, I find that D1 and D2 should be sentenced based on the goods conspired to be stolen had the value of the production costs of HK$8,241,077.

88.That being the case, in relation to count 1, the applicable band should be that of “5 to 10 years”.

89.As to where within the band each starting point should fall, I have taken into consideration all the factors mentioned by Mr. Lo and Mr. Cheung in their meticulously prepared submissions, considered the roles of D1 and D2, the scale and complexity of the conspiracy, and the quantity of goods to be stolen, and I find that in relation to count 1, an appropriate starting point within the band is that of 7 years’ imprisonment for both D1 and D2.

DELAY

90.All 4 co-conspirators were caught red-handed on 2 February 2017.  D1 and D2 made full confessions on 3 February 2017 in their respective cautioned video recorded interviews.  All the goods conspired to be stolen in count 1 were found on the same day of their arrests.  The goods in count 2 were found on 3 February 2017.

91.The 4 co-conspirators were not charged until 2022.  It is not clear why it took 5 years to charge them with a relatively simple case.  As at the time of D1 and D2’s first sentencing hearing in July 2026, another 4 years had passed.

92.It is not disputed by the prosecution that none of the defendants were responsible for the delay.

93.It is trite law that delay in prosecution and bringing the case to trial can be a mitigating factor, especially when the offender had arranged his affairs during the delay and had been actively engaged in his rehabilitation, and where the delay had caused the offender to be placed in a state of uncertain suspense resulting to much stress.

94.I find that the stress the delay had placed the defendants under, and their rehabilitative behaviors of being in gainful employment throughout the delay in the present case does warrant a reduction in sentence for D1 and D2.

95.Taking into consideration all circumstances, in relation to count 1, having adopt a starting point of 7 years’ imprisonment for D1 and D2, they are granted the full one-third discount for their guilty plea, leading to a sentence of 4 years 8 months’ imprisonment after plea.

96.I will then grant them a further discount of 8 months for the lengthy delays between their arrest and prosecution and sentence, taking it down to 4 years.

97.The final sentence for D1 is, therefore, 4 years’ imprisonment.  I proceed to sentence D2 on his remaining counts.

COUNT 2: CONSPIRACY TO STEAL (AGAINST D2)

98.Based on the Summary of Facts, and upon confirmation by the prosecution and Mr. Cheung, the number of “fashion items” being the subject matter of the conspiracy to steal in count 2 is 90 handbags.

99.For the same reasons given in relation to count 1, D2 is to be sentenced based on the production costs of the 90 handbags, which is HK$525,780.

100.Count 2 involved one less co-conspirator, but the rest of the circumstances of the conspiracy to steal from Chanel are the same.

101.I will adopt a starting point of 2 years 6 months’ imprisonment, leading to a sentence of 20 months’ imprisonment.

102.For the same reasons given in relation to count 1, for the delay D2 had suffered, I grant him a discount of 6 months, resulting in a sentence of 14 months for count 2.

COUNT 3: CONSPIRACY TO HANDLE STOLEN GOODS (AGAINST D2)

103.In relation to count 3, the prosecution has confirmed that there is no definite items of goods being conspired to be handled, the criminal act is the agreement to rent room 136 to handle anything that was stolen from Chanel.

104.Strictly speaking the Cheung Mee Kiu guidelines would not apply to a breach of trust handling situation but given the circumstances of the commission of this count, I find that the guidelines still provide some useful guidance in adopting the starting point.  It is noted that the handling of stolen goods carries a higher maximum sentence than theft.

105.Taking into consideration all circumstances, I find that a proper starting point is that of 2 years 6 months’ imprisonment.

106.The sentence after plea would, therefore, be 20 months’ imprisonment.

107.For the delay of prosecution, I will order a further reduction of 6 months, taking the sentence down to 14 months’ imprisonment.

TOTALITY IN RELATION TO D2

108.Count 1 involved different products and took place after count 2 and ought theoretically to be served at least partly consecutively to the sentence in count 2.

109.Yet, I note that D1(Ho Tung Shan), Ng Yiu-lun, and Cheung Ka-wai had not been charged with the count 2 conspiracy; and Ng and Cheung had not been charged with the count 3 conspiracy.  D2 is the only person being charged with all 3 conspiracies.

110.It is not the case that the co-conspirators in the other counts could not be found. It is not clear why the prosecution had chosen not to also charge Ho, Ng and Cheung for the count 2 conspiracy, and not to charge Ng and Cheung for the count 3 conspiracy, given that they are the named co-conspirators in the charges that D2 faces.

111.Taking a step back, I find that out of fairness, all 3 sentences that D2 faces should be ordered to be served concurrently.  I further find that the final sentence of 4 years after plea for the 3 counts is sufficient to encompass the overall criminality and culpability of D2 in this case.

112.As such, the final sentence for D2 is 4 years’ imprisonment.

Mr. WONG Hay-yiu, counsel on fiat for the Prosecution/ HKSAR

Mr. Caesar LO instructed by Messrs. King & Co., assigned by D.L.A., for the 1^st defendant (D1)

Mr. Adonis CHEUNG instructed by Messrs. To, Lam & Co., assigned by D.L.A., for the 2^nd defendant (D2)