HKSAR v. Au Chun Leung
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DCCC 527/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 527 OF 2013 ----------------------
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--------------------- Reasons for Sentence --------------------- 1.Defendant, you have pleaded guilty to an offence of theft, contrary to section 9 of the Theft Ordinance. 2.You admitted that on 8 April 2013 you stole $49,100 from the Gyukaku Japanese Yakiniku Restaurant. 3.At the material time you were an employee of the restaurant. You had access to the restaurant and the manager’s room with a key and had the password for the safe in the room. 4.At 3 am on 8 April, you used the key to enter the room and the password to open the safe. That is where you stole the money. You then took the money and repaid a debt. 5.Later that day at about 5 pm you then telephoned your manager and confessed that you had stolen the money because you had lost money on gambling in Macau. 6.You were immediately arrested and, under caution, you admitted these facts. 7.Your solicitor Mr Tsu has made full and thorough mitigation on your behalf and I have taken into account all that he has had to say. 8.You are 22 years of age and are of clear record. Mr Tsu tells me that you would regularly go to Macau for gambling and on this recent occasion you had borrowed $30,000 to gamble from the loan-sharks. As you could not repay the money they had come after you and threatened you and your family. 9.As you did not know what to do and were ashamed to ask your friends, you resorted to stealing the money from your employer. You, however, immediately realised your wrongdoing and told your employer that very day. 10.Today, you have made full restitution to your employer. You had $20,000 in your possession when you were arrested and that money was kept in your prisoner’s property until it was released today and has been used to pay your previous employer. I believe you have borrowed more money to pay the balance. 11.This is a clear breach of trust case. Despite Mr Tsu asking the court to impose a suspended sentence, that is wrong in principle. 12.The Court of Appeal have laid down very clearly that for breach of trust cases deterrence is paramount and the most appropriate sentence is almost always one of an immediate custodial sentence. 13.The relevant case to which the courts take into account for the guidelines on sentencing in breach of trust is Cheung Mee Kiu, the amount of money stolen is of significance. 14.In this case, defendant, the facts are aggravated in that you were an employee of this restaurant and you had gone in there that evening as a trespasser. You opened the safe and stole the money. These facts are akin to a burglary, though I note clearly you are not charged with a burglary; the charge was amended this morning from burglary to that of theft. 15.The case of Cheung Mee Kiu lays down the guidelines of for stealing less than $250,000, a sentence of less than 2 years is appropriate. 16.Employers rightly expect their employees to be trustworthy, particularly more so, when people like yourself have been placed in great positions of trust to have been given the code to the safe where the takings of the restaurant were kept. You have breached this very high level of trust placed in you. 17.Given the facts of this case, I consider a sentence of 9 months to be appropriate, had I convicted you after trial. 18.You have pleaded guilty, which shows your remorse. That is certainly your strongest mitigating factor and as a result of which that term of 9 months shall be reduced to 6 months. 19.A further mitigating factor is your immediate confession or surrender, shall I say, to your employers informing them almost immediately that you had stolen the money. Over and above, you have also made full restitution of the sum to which you have stolen. 20.Taking these two further two matters into account, I further reduce your sentence to that of 5 months’ imprisonment and that is the term to which you shall be so sentenced.
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