HKSAR v. Chung Miu Man

DCCC 166/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 166 OF 2012

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Reasons for Sentence

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Introduction

1.The defendant is convicted after trial of theft of 3 drums of electric cable, the property belonging to Gammon Construction Limited (“Gammon”).

Facts

2.On 14 November 2011 when the defendant was a site supervisor of Gammon, the defendant went to Gammon’s warehouse situated at Lot 163, DD79, Ping Yeung, Ta Kwu Ling, New Territories (the “Warehouse”) and had 3 drums of electric cable (the “Subject Cable”) removed from the Warehouse without Gammon’s authorization. Despite Gammon’s rule that all Gammon’s property is to be conveyed between Gammon’s construction sites and warehouses by Gammon’s vehicles only, the Subject Cable was removed from the Warehouse by a truck not belonged to Gammon. The Subject Cable has not been recovered by Gammon ever since.

3.It was stated in the Admitted Facts that the value of the Subject Cable, when new, was HK$337,755.

4.PW1, whose evidence I accepted, testified that the cables shown in photographs (4), (5), (6) and (7) of Exhibit P4 were similar to the Subject Cable. I find that the cables shown in photographs (4), (5), (6) and (7) of Exhibit P4 were unused cables. As such, in sentencing the defendant I will sentence him on the basis that the value of the Subject Cable was about HK$337,755.

The defendant’s previous criminal conviction record and antecedents

5.The defendant has a clear record.

6.The defendant was born in June 1973 and is now 39 years old. He is married with two sons, one aged 10 and the other 5 months. He has received education up to Form 5 level. He has been working in the electrical field for 10 to 20 years.

Mitigation

7.It was submitted by Mr Yeung that the defendant was the sole bread winner of the family, that the defendant had a clear record and that the offence was out of the defendant’s character. Mr Yeung also agreed that the present case was a breach of trust case. Today, Mr Yeung further submitted letters respectively from the defendant’s father, son and ex-supervisor to this court. Mr Yeung confirmed that the contents of those letters had been referred to in the defendant’s Background Report mentioned below. I therefore do not intend to repeat the contents here.

Background Report

8.A Background Report was called for. It was stated, inter alia, in the report that:

“5. Since February 2009, the accused had been the electrical work supervisor of the victim company at the sewage drain tunnel construction site of North Point. His supervisor, Mr Cyril Mayhew, had been very satisfied with his performance. In his mitigation letter dated 22 June 2012, the accused was seen as a capable electrical work supervisor, helpful staff and efficient learner.

6. …

7. … The elder son had outstanding score for all subject tests in the first and second semester of present P4 school year. In his mitigation letter, he praised the accused as a filial son supporting the grandparents’ life in home village in PRC, a dedicated electrician upgrading his qualification for career advancement and a caring father tutoring and playing with son in weekends. The young son very much worried about his elder grandparents, mother and toddler brother while pleading with Your Honour for mercy.

8. … (The accused) was said to have been so dedicated to his career that he always rushed to the site on call during weekends. Since (his wife’s) migration from China with elder son in 2005, the accused was always in the company of his family at home, restaurant, library or public playground in leisure. …

9. The accused’s 66 years old father had been relying on dole of $3,000 per month. … The accused was said to have been a filial son offering pocket money to his parents in Guangdong regularly.

10. In sum, the accused has been a village kid fleeing the Red China to reunite with his father alone in the mid-Eighties. Through his diligent work at factory and study at IVE after work, he has been qualified as an electrician and climbed the career ladder up to the site supervisor post after the millennium. Despite his loss in stock investment, foreclosure of his former home property and bankruptcy during the last financial tsunami, he has hold on to his career to continue raising his family of cross border marriage and taking care of his aged parents and 2 chronicle ill siblings who were residing in Guangdong. After his family reunion in Hong Kong in 2005, he has tutored his son to the top rank in P.4 class while a toddler son is added to his stable family before his 39^th birthday in custody last week. The positive comment of his supervisor in the victim Gammon Construction Limited and his clear record also reflect his dedication to his career and straight life pattern. After the blow of his arrest and dismissal, instead of resorting to welfare handout, he has been resilient to continue to secure another foreman job on casual basis to support his young family and tide his wife over the post natal blue period.”

Sentencing authorities

9.It was laid down in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 and HKSAR v Yeung Chiu CACC105/2009 that for an offence of theft involving a breach of trust with the amount of between $250,000 and $1 million, the range of sentence should be 2 to 3 years’ imprisonment.

10.The defendant’s previous good character counts very little as mitigation. In HKSAR v Chan Peter CACC 102/2004, Mr Justice Yeung, JA (as he then was), said:

“76. Previous good character and the impact of conviction on the applicant’s future career count very little as mitigation in cases of this nature. As the Lord Chief Justice said in Barrick (supra) at p 81:

‘The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again, as in this case, that he will never offend again and, in the nature of things, he will never again in life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family.’

77. Put crudely, the applicant would not have been able to do what he did but for his previous good character and he should have foreseen the consequence of what he did.”

Sentence

11.In light of various positive comments revealed from the Background Report (i.e. the defendant is a hard-working person, loving father, filial son and dedicated worker), the value of the Subject Cable and the sentencing guidelines for breach of trust cases, I am minded to adopt a starting point of 2 years’ imprisonment. The defendant is convicted after trial. I do not see any valid mitigating features justifying any reduction in sentence. I therefore sentence the defendant to 2 years’ imprisonment.