HKSAR v. Hung Fan-kit

DCCC582/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 582 OF 2011

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Reasons for Sentence

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1.The defendant was convicted after trial for two charges of theft:

Charge 1:- theft of 49 pieces of jewels from Best Follow, about 1 million Hong Kong;

Charge 2:- theft of 7 diamonds from China Diamond, about 1 million Hong Kong.

2.Owner from Best Follow, PW1, came to know the defendant when he worked in Su Gems.  Staff from China Diamond, PW4, came to know the defendant when he worked in Facet Gems.  The consignment from Best Follow was displayed in Diamond Station for sale. 

3.Between November 2009 to May 2010 there were a total of 43 pieces of jewellery on consignment from Best Follow to Diamond Station for sale.  In early July the defendant also took away two sapphires and four emeralds, add up to 49 pieces of jewellery.  The value was about 1 million.

4.China Diamond delivered some diamonds to Diamond Station upon the defendant’s request.  The seven diamonds, in an estimated value of 1 million, were kept by the Diamond Station.

5.When PW1 demanded for payment and PW2 asked to bank in the three post-dated cheques, the defendant made excuses to PW1 that he would pay after his return from Taiwan.  On the other hand, he asked for more time from PW2.

6.Eventually PW1 and 2 could not find the defendant, and subsequently Diamond Station was closed.  All the 49 items and 7 diamonds remain unreturned and unpaid.  Three cheques to China Diamonds were all bounced.

Mitigation:-

7.In mitigation I am told the defendant is now 55 years old, married, with a son.  He has a clear record.  The defence said that the original set-up of Diamond Station was not to cheat Best Follow and China Diamond.  I was asked to sentence the defendant leniently because the admitted fact had reduced the length of trial and the defendant did not give evidence.  To a certain extent the court’s time was saved.  I do not agree to that as the defendant simply have no defence in his case.  Further, the defence also said that the defendant was not allowed to travel and he was restrained in some way.  Again this mitigating factor does not warrant any discount when sentencing him. 

Sentence

8.It was agreed by the defence that the 1st charge involved an element of trust.  Therefore the sentencing principle in Cheung Mee Kiu, CACC99/2006, is applicable.  However, in my opinion the 2nd charge also involved an element of trust as China Diamond allowed the 7 diamonds to be kept by Diamond Station was also based on trust because of PW4 knew the defendant before.

9.PW2 said that a new customer had to pay for the diamond immediately, no term allowance.  It is a simple fact that new customers have no trading record and there is no pre-existing relationship to judge their reliability and credibility.

10.When the defendant asked for more time from PW2 to bank in the cheques, PW2 agreed.  It was all based on trust.  PW2 had no expectation that the defendant could not be located and the shop was simply shut down for business.

11.China Diamond lost 7 diamonds, altogether 1 million Hong Kong.  Therefore the sentencing guideline in Cheung Mee Kiu is also applicable in the second charge.

12.The value of both charges, as said before, is in the region of 1 million.  None of the jewellery was recovered, and therefore each charge attracts a sentence of 3 years.  I order one year from the second charge to run consecutively to

Charge 1. It comes to a total of 4 years.

Order

13.Charge 1:- 3 years;

Charge 2:- 3 years, 1 year to run consecutively to Charge 1, 2 years to run concurrently to Charge 1.

The total sentence is 4 years.

Please refer to CACC399/2011 for the relevant appeal(s) to the Court of Appeal.