HKSAR v. Chiu Chun Pan and Another

DCCC 282/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 282 OF 2014

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Reasons for Sentence

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1.D1 and D2 pleaded guilty to one count of theft. On 15^th October, 2013, the two defendants jointly stole 2,000 iPhones worth over HK$5.2 million from a Neo Technology Limited (“Neo”).

2.At the material times, D2 was the shipping manager of Neo, whilst D1 was a freelance driver engaged by Neo for transportation of goods.

3.The 2,000 iPhones, the subject matter of the charge, were originally destined for a company in Russia. Neo received the said 2,000 iPhones on 15^th October, 2013.  Upon D2’s arrangement, all the phones were passed to D1 for delivery to Success Union Express Limited (“Success”) for Success’ onward delivery to Russia.

4.Instead of delivering the phones to Success, D1 delivered carton boxes filled with white paper without any iPhones.  When the carton boxes reached Russia, Neo’s client in Russia checked the carton boxes, found out what happened and returned all the carton boxes to Neo.  The case was reported.

5.D1 and D2 had in fact sold the missing 2,000 sets of iPhones.  The two defendants shared the proceeds, which was over HK$2 million.

6.D1 admitted the offence in a video recorded interview after he had been positively identified by three witnesses as one of the two men who sold them 1,300 iPhones in mid-October 2013.

7.D1 told the police that it was D2 who came up with the plan to steal and D1 showed interest in it.  After D1 and D2 stole the goods, they shared the profit of about HK$2.1 million equally. 

8.D1 said he committed the offence out of greed as he was in debt.

9.D2 only admitted the offence in the third of his three video recorded interviews.  He said the idea to steal came from D1.  Out of pity for D1’s poor family situation, D2 agreed eventually.  D2 fed D1 with the necessary information, ie when the goods should reach Neo and the quantity of the goods, he also helped in packing some white paper into the fake paper boxes.  D2 said he only received HK$600,000 from D1.

10.D1 is 36 years of age and he has criminal records relating to false trade description and forged trademark.

11.D2 is 30 years old. He has a clear record.

12.Mr Ng, who appears for D1, argues that D1 did not steal in breach of trust.  He cites R v Barrick [1985] CAR 78, HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and Secretary for Justice v Buk Chui Ying [2008] 5 HKLRD 185.

13.In my judgment, it does not matter for the purpose of sentencing that D1 was not an employee of Neo, the victim.  D2 was an employee of Neo and D1 knew perfectly well that he and D2 were stealing from Neo with information provided by D2, in his position as an employee of Neo.  D1, though not an employee of Neo and hence strictly speaking he was not stealing from his employer.  He was engaged by Neo to deliver the goods to Success for Success’ onward delivery to Russia.  It was against this background that D1 and D2 stole the iPhones from Neo.  Although D1 did not, strictly speaking, steal in breach of trust, in my judgment, as far as culpability is concerned, there is no distinction of any real significance between D1 and D2; they are clearly in the same league and I see no reason why D1 should receive a lighter sentence than D2.

14.Hence, the sentencing considerations of Barrick also apply to D1.

15.Mr Ng submits that D1 surrendered himself to the police after he learnt that he was wanted by the police. 

16.It is clear to me that D1’s return to Hong Kong and surrender was not generated by remorse; he only admitted the offence after he had been positively identified by three witnesses.  I do not think he needed to be told by his friend that he was wanted by the police for a clear cut case of theft.  In fact, the evidence against D1 is overwhelming.

17.I read the mitigation letters written by D1 and his daughter.  I am sympathetic with D1’s daughter for the hardship that she has to face but family hardship is not a factor that I can properly take into account in sentencing.  D1 is the person who brings all the hardship on himself and his daughter; he alone is the one to blame.

18.I considered the mitigations advanced on D2’s behalf by Ms. Wong.  I have read each and every of the mitigation letters submitted.  All the family members and friends of D2 spoke highly of D2.

19.I am aware that D2 had a hitherto clear record and he has a good character, as evidenced by the mitigation letters and proof of charitable donations.  I do not accept, however, that the information placed before me can bring D2 into the category of “positive good character” which would earn him additional discount beyond the customary one third reduction for his guilty plea.

20.D2 stole the 2,000 iPhones from his employer.  Whilst Ms. Wong accepts D2 had acted in breach of trust, she urges me to consider that D2 only stole on one single occasion.  D2 had hitherto good character.  He struggled hard after he settled in Hong Kong.  He confessed to the police and pleaded guilty to the offence.  He is truly remorseful for what he had done.

21.I do not believe D2 agreed to steal with D1 out of pity for D1’s family hardship.  Clearly, D2 stole because of his greed for money.

22.In my judgment, the sentencing considerations in Barrick apply equally to D1 and D2.  D1 was a freelance driver, though not an employee of Neo, he was trusted with the task of delivering the goods to Success.  D2 was the shipping manager of Neo.  He abused the trust that his employer had placed on him.  Though the defendants only stole on one occasion in October 2013, the theft had caused huge loss to Neo, the employer of D2.  Both D1 and D2 had put the proceeds to selfish use. D1 used the money to settle his gambling debts, whereas D2 used the money in purchasing expensive jewellery, investment and gambling.  The theft was premeditated and carefully executed by two persons.  D1 is not a first offender, whereas D2 is a man of previous good character.  The goods that the defendants had stolen, were destined for Russia.  The defendants stole the carton boxes containing the phones and sent instead to Russia fake carton boxes stuffed with paper.  In my judgment, there was an international element in the crime that the defendants committed.

23.D1 and D2 stole 2,000 iPhones worth HK$5,226,000 in total.  Applying the guidelines in Cheung Mee Kiu and bearing in mind the sentencing considerations in Barrick, as discussed above, in my judgment, this case calls for a starting point of 5½ years’ imprisonment.

24.Both D1 and D2 are entitled to one-third reduction for their guilty pleas.

25.Apart from the guilty pleas, I can see no other mitigating factors that can further reduce the sentence.

26.For the reasons given, I sentence D1 and D2 each to 44 months’ imprisonment.  I also make a criminal bankruptcy order against D1 and D2.