HKSAR V Liu Wai Hing

DCCC 93/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 93 OF 2013

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REASONS FOR SENTENCE

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1.The defendant appeared before me and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of the offence aver that the defendant, between the first day of January 2011 and the third day of April 2012, both days inclusive, in Hong Kong stole 43 watches and some watch parts, the property belonging to F J Benjamin (HK) Limited (“the company”).

Facts

3.According to the summary of facts, which has been admitted by the defendant, this is a breach of trust case. 

4.The company actually is in the business of a wholesale of luxurious watches in Hong Kong, with its back-office and maintenance centre situated in North Point.

5.At all material times, the defendant had been employed by the company as watch repair worker since 1996 and he was later elevated to become the vice-manager of the maintenance department of the company at the time when the offence was discovered.

6.The defendant’s job was to repair watches and to deliver them to the outsourced company for maintenance and finishing before completing the whole repair process.

7.As can be seen from the charge, the relevant period covered a period of 14 months and when the offence was discovered, the defendant could not be found and he simply did not turn up for work.

8.After the company had checked, altogether 43 watches previously handled by the defendant were missing and the case was reported to the police.

9.As a result of the investigation, searches at the defendant’s working area at the company resulted in the discovery of 41 pawnshop receipts and 39 of which were issued by 15 pawnshops in Hong Kong while 2 were issued by pawnshops in Macau.  Altogether, a total of 48 watches were found to be pawned by the defendant at these pawnshops and all were later recovered by the police.

10.Of these 48 watches, 43 of them were recognised by the manager of the company to be stolen from the company.  They were stocks of the company. Another two watches were found out to be assembled by the defendant, using watch parts that were stolen from the company, while there were three remaining watches that belonged to the defendant himself.

11.The defendant was subsequently located by the police at his father’s residence in Kwai Chung on 12 November 2012.  After he was arrested, under caution, he admitted to have a serious gambling addiction problem and he took the watches and pawned them for cash during the period.

12.In the subsequent video recorded interviews, the defendant admitted that since his wife passed away in around 2008, he became very upset and started to have the problem of gambling.

13.In 2011, he started to steal watches entrusted to him by the company for maintenance purpose.  He made false records about the watches, purporting to have delivered them to outsourced companies for maintenance while actually he pawned such watches and the money obtained were all lost in gambling.

14.When shown by the police the copies of the pawnshop tickets, he recognised that out of which, 43 were stolen from the company and two were assembled by him using watch parts stolen from the company.

15.He also admitted to the police that in order to cover up his offence, whenever the company was looking for a particular watch, which, in fact, he had pawned, he would steal another watch from the company and pawn it for the money and use such money to redeem the watch, but as the matters progressed, he eventually found himself not in a position to cover up the offence.

16.According to the facts, the retail value of the stolen watches amount to $11,783,300 and all the stolen watches were later recovered and all were returned to the company after the company had paid a total of $1,309,540 as settlement money to the relevant pawnshops.

The background of the defendant

17.The defendant is now aged 41.  He was born in Hong Kong.  He has a clear record.  As mentioned, he was married but his wife unfortunately passed away in 2008 due to cancer.  They have no child.  He only has an education up to Form 5 standard and he had worked as a watch repairer for the company and he was later elevated to the post of vice-manager of the maintenance department. 

18.The defendant has age-old parents.  The father is now aged 89 and the mother is 80.  Although living separately with the defendant, they both live on the support of the defendant.

19.In mitigation, his lawyer, Mr Tang, submitted to the court a mitigation letter written by the parents.  I am not going to refer to the details of the letter, suffice it to say that both parents were very disappointed of the way the son had committed the offence and thereby breaching the trust reposed on him by his employer but at the same time, they said that the reason why he committed the offence is largely because he could not cope with the loss of his wife four years ago and, therefore, unfortunately he resorted to gambling to release his pressure.  Both parents, of course, urged the court to be as lenient as possible, while recognising that their son had committed a very serious offence.

20.Mr Tang had reiterated that in this case, there is a peculiar feature in that the actual value of the watches stolen by the defendant is over HK$11 million, while at the same time, the actual loss to the company was only $1.3 million, being the money the company had spent in recovering the watches from the various pawnshops.  According to the calculation of Mr Tang, the actual loss of the company represented only some 11 per cent of the value of the total watches stolen.

21.Mr Tang, therefore, urged the court to strike a proper balance between these two extreme figures and not to adopt the retail value of the stolen watches when fixing the starting point of the sentence.

22.He urged the court to focus on the actual money that has been spent by the company to recover those watches while at the same time, recognising the serious factors that is present in this case to reflect the overall criminality of the matter.

Sentencing considerations

23.The present case is yet another case involving, as it were, considerable planning and also a serious breach of trust by an employee of the company who has worked in the company for the last 17 years.

24.No restitution of any kind was ever made and proposed by the defence.

25.It can be seen that because of the gambling addiction of the defendant, he has abused his position as the manager of the maintenance department of the company and pawned the watches in order to settle his gambling debts. 

26.In order to cover up his misdeeds, whenever the company was asking for a particular watch, he would then steal another watch and pawn them and use the money to redeem the relevant or particular watch that the company was looking for.  This is also a persistent and continuous theft of the watches from the company and it does not involve only a single transaction but instead a large numbers of transactions. 

27.In my view, no matter how the defendant came to be addicted to the gambling habit, it cannot begin to explain why he can breach the trust which has been reposed on him by the company.

28.In sentencing the defendant, I need to apply the guideline of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, as later modified by the case of Ng Kwok Wing, CACC 398/2007.

29.In Cheung Mee Kiu (supra.), the Court of Appeal had given guidelines on the appropriate range of sentence for theft which is based on the amount involved.  According to band 2 of the guideline, for the amount involving $3 million to $15 million the starting point is 5 to 9 years, and for band 3, for the amount of $1 million to $3 million the starting point is 3 to 4 years.

30.In Ng Kwok Wing (supra.), the Court of Appeal later adjusted the second and third bands of the guideline of Cheung Mee Kiu (supra.) as follows:

(2) ($3 million to $15 million): 5 to 10 years;

(3) ($1 million to $3 million): 3 to 5 years.

31.As can be seen clearly from the revised guideline, in this case, if one uses the actual value of the properties stolen as opposed to the actual money spent by the company in recovering the stolen watches as a starting point, the result would be a huge difference.

32.In my view, this present case is, of course, a very serious one.  The offence was clearly premeditated and if the offence was not discovered, it would certainly continue.

33.While I accept that it is a nasty fall from grace for a person of clear record like the defendant and he had a hitherto impeccable record, it is not unusual for a person like the defendant to be sentenced to prison in cases involving a breach of trust.  At the end of the day, the defendant had only himself to blame and he is the author of his own misfortune. 

34.I have sympathy, of course, for the aged-old parents of the defendant but in a serious offence such as the present, the Court of Appeal has said that family circumstances virtually played no part in mitigation and while I can understand why the defendant had fallen into the habit of gambling, this does not begin to mitigate on his behalf.  To me, the unfortunate passing away of the wife of the defendant due to cancer four years ago does not begin to provide a proper excuse as to why the defendant had to resort to gambling to release his pressure or depression.

35.After considering the matter carefully, I can find some force in Mr Tang’s mitigation in that if I were to adopt the actual value of the stolen watches involved in this case, the starting point would be well over 8 years. After all, the defendant did not sell the watches in question and he never pocket over HK$11 million of cash.  He chose to only pawn the watches in question for about HK$1.3 million. 

36.While in a way, I think it is due to more of the fact that it is a cover-up by the defendant designed to continually steal the watches from the company, I still consider that, in sentencing, I should approach the matter by referring to the actual money that had been received by the defendant during the course of the theft. 

37.According to Ng Kwok Wing (supra.), as the money involved was between 1 million to 3 million dollars, the sentence should be 3 to 5 years.

38.In this present case, therefore, I think, without the consideration of other aggravating factors and just by referring to the money factor alone, the starting point should be 3 years and 3 months.

39.However, this is not the end of the matter.  As also relied by the defence, in the English case of R v Barrick (1995) 81 Cr App R 78, it was held that the court should also take into account other factors.  Those factors include: 

(1) the quality and degree of trust reposed in the offender, including his rank;

(2) the period over which the fraud or the thefts had been perpetrated; and

(3) the use of which the money or property dishonestly taken was put;

(4) the effect upon the victim;

(5) the impact of the offences on the public and the public confidence;

(6) the effect upon fellow employees or partners;

(7) the effect on the offender himself;

(8) his own history; and

(9) those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like. Where has happened there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial;

(10) finally, any help by him to the police.

40.All in all, I consider that apart from the money that had been received by the defendant by pawning those stolen watches, there are the presence of some aggravating features in this case:

(1) firstly, the defendant was a vice-manager of the maintenance department and, therefore, enjoyed a high degree of trust of the company;

(2) secondly, as I stated already, this period of theft is well over one year and 43 watches altogether were stolen from the company, with two other watches assembled by the parts belonging to the company; and

(3) the defendant used the money to satisfy his own gambling habit.

41.For these reasons, I consider that the starting point of this case should be increased by 9 months to 4 years.

42.The only mitigating factor in this case is the defendant’s plea of guilty, for which the defendant will be entitled to one-third discount. 

43.After the reduction, I therefore sentence the defendant to 32 months’ imprisonment.