HKSAR v. Yuen Kwok Ki

DCCC 809/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 809 OF 2014

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 30 years) appeared before me this afternoon and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of offence avers that on 24 June 2011, at the car park, No 1 Hung To Road, Kwun Tong, Kowloon in Hong Kong, stole 16,400 pieces of “IC” electronic components, 87,000 pieces of diodes and 28,800 pieces of memory card, property belonging to Zenitron (Hong Kong) Limited.

Facts

3.According to the Summary of Facts which has been agreed by the defendant, at the material time the defendant was working as a delivery worker of one Lee Tak Logistics Company.  This logistics company is a one-man company owned by Mr Chau Ting‑chi.  The defendant has been working for Mr Chau as a delivery worker for nearly a year, and he has been, in particular, accompanying Mr Chau to deliver goods in the two weeks preceding 24 June 2011.

4.On 24 June 2011, Mr Chau drove a heavy goods vehicle to a warehouse in Shatin to pick up seven cartons of electronic component parts, the particulars of which have been stated exactly as in the particulars of the charge, in total worth of US$91,059.50, with an approximate value of HK$710,264.  These electronic goods belonged to Zenitron (Hong Kong) Limited.

5.Mr Chau, pursuant to the delivery order, then drove the heavy goods vehicle to deliver the goods to an import and export company located at No 1 Hung To Road in Kwun Tong.  At about 4:30 pm, Mr Chau, together with the defendant, unloaded the stolen property onto a trolley, leaving the defendant to deliver the trolley to the 20th floor by using the lifts.  Mr Chau then left the lift lobby and returned to the heavy goods vehicle and waited for the defendant’s return.  In fact what happened was the defendant then entered into one of the floors of the building took another lift and pushed the trolley to the ground floor and left the building via the car park by the vehicle entrance.

6.Mr Chau waited in vain for the defendant’s return and the defendant had left with no trail.  Mr Chau kept calling the defendant’s mobile but the defendant did not answer the call.  After learning from the staff of the import export company that they had not received the stolen property, Mr Chau thus reported the matter to the police.  The defendant was later put on the wanted list but it was only some three years later, ie on 22 July 2014, that the defendant was intercepted by police officers in Tsuen Wan.

7.After arrest and caution, the defendant had nothing to say.  He further refused to answer any questions in the subsequent video-recorded interview.

8.The stolen property was never retrieved and the defendant’s ex-employer, Mr Chau, had to bear the whole loss.

9.Upon confirmation with the Immigration Department, the defendant had not left the Territory from 24 June 2011 to the time when he was arrested.

Criminal record and the background of the defendant

10.The defendant has nine previous convictions with a similar offence of attempted robbery and obtaining pecuniary advantage by deception. 

11.He is still single.  He was born in Hong Kong and received an education up to Form 3 level.  He resided together with his parents in a public housing estate in Shek Lai Pui.  He was the only child of the family.  Since graduation, the defendant was unable to find a stable job, and according to his solicitor, Ms Wendy Mak, because the defendant has met some dubious peers since graduating from the school, he had been involved in numerous criminal cases.

12.Since his last conviction in 2009, which is assaulting a police officer, for which he was sentenced to 1 month imprisonment, the defendant was determined to mend his way.  In July 2010 he also managed to find a job in a logistics company working for Mr Chau and stayed in that job for almost a year. 

13.Ms Mak, however, informed the court that the defendant was hard pressed by the loan shark for the debt in the sum of $40,000.   Due to the repeated pressure and harassment exerted by the loan shark, foolishly the defendant decided to steal the electronic goods, which he had no idea of the actual value.  After the theft of the stolen property, he later sold them for a small reward of $50,000 basically to repay his indebtedness to the loan shark.

14.In the last three years before he was arrested, Ms Mak told the court that the defendant has been living in guilt and remorse, and during the time he also had been working on and off in a garage earning his living.

15.In mitigation, Ms Mak urged the court to consider the fact that the defendant had pleaded guilty, which is an indication of his remorse.  She also told the court that the defendant was deeply sorry towards his ex‑employer, Mr Chau, for the serious breach of trust he has committed.  Although the defendant had no courage to come forward to surrender himself to the police, Ms Mak still told me that the defendant is prepared to accept his legal consequences.  Ms Mak had produced to the court a short letter written by the defendant.  Basically, the defendant repeated he was sorry for what he had done and he asked the court for leniency so that he could be reunited with the parents and rejoin society.

16.Ms Mak had said that the defendant has been co‑operating with the police.  I have raised it with Ms Mak and observed that as an accused person, the defendant had exercised his right and refused to answer any questions to the police relating to the offence thereby in so doing, he did not attempt to give any information as to how he came to dispose the stolen property and also the identity of the person who received the stolen property from him.

17.Lastly, Ms Mak referred me to the sentencing guideline by the Court of Appeal in relation to breach of trust cases, and without explaining in great detail, she submitted that the basic starting point for this case should be one of 2 years’ imprisonment.

Sentencing considerations

18.The present case, as it were, is a breach of trust case.  Although the offence of theft is usually committed against the property owner, it might also be committed against someone who had an interest in the property less than that of an owner.  According to section 6 of the Theft Ordinance, Cap 210, property is regarded as belonging to any person having possession or control of it.  Although in the present charge the property was stated as belonging to the goods owner, Zenitron (Hong Kong) Limited, the defendant was employed at the time of the offence by Mr Chau, who was entrusted by Zenitron to transport the goods from the warehouse to the import and export company in Kwun Tong.

19.In the circumstances, Mr Chau can also be regarded under section 6 as the property owner.  In other words, the theft in this case was committed against the defendant’s employer, Mr Chau, as much as against the property owner, Zenitron.

20.The starting point set out in HKSAR v Cheung Mei Kiu [2006] 4 HKLRD 776 for the offence of theft involving breach of trust was later revised by another case, HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  According to Ng Kwok Wing, it provides that for a sum involving HK$250,000 to HK$1 million, the sentence should be between 2 to 3 years.

21.This present case involved an approximate HK$710,000, and therefore, according to the guideline, the starting point should be about 33 months. I have to disagree with Ms Mak’s submission that the starting point should be as low as 24 months.

22.The ex‑employer of the defendant, Mr Chau, suffered a great loss in this case.  According to the prosecutor, Mr Vincent Lee, Mr Chau had to repay the whole lot of HK$710,264 back to Zenitron after the incident as compensation.

23.The defendant said he only sold the whole batch of electronic goods for $50,000 and he was now not in a position to make any restitution.

24.The quality of degree of trust reposed on the defendant was great but the defendant just took away the electronic goods without a trace.  I can see no other mitigating factor in this case other than the fact that the defendant has pleaded guilty.

Order

25.After reducing the starting point by 1/3, the defendant is sentenced to 22 months’ imprisonment accordingly.