HKSAR v. Leung Po Yiu

DCCC 902/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 902 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to three offences of theft. They are opportunist theft of valuable items from warehouses. The defendant admitted the facts and I convicted him accordingly.

2.The defendant is a driver of a goods vehicle and that gives him access to the loading areas in various, what appear to be warehouses, and he is able to then take unattended items and the defendant did that on three occasions from May through to August.  He was ultimately caught in August and of course his presence at the scene of these thefts will have been noted by CCTV so it was inevitable that he would be caught.

3.The facts of the 1st offence occurred on 5 May 2014 and three cartons of watches were taken.  They had been left unattended outside the Ground Floor of 26 Prat Avenue, Tsim Sha Tsui and there were a total of 232 watches valued at $241,074.

4.The 2nd charge occurred on 3 June 2014 and that concerns a total of 14 cartons of electrical components.  They were to be collected from an office at Wah Wai Centre in Fo Tan.  They were put on a lorry and the defendant must have taken them from the tailboard of the lorry.  The value of those goods were valued at US$74,986.38.

5.The final theft occurred on 7 August 2014 at APM Mall in Kwun Tong. The defendant was found holding two cartons which contained computer components valued at US$110,924.  The defendant admitted he had stolen the cartons at the unloading area of the Nanyang Plaza.  On his vehicle, 175 watches in two cartons were found and those were items taken from the theft at Prat Avenue in May 2014.  The defendant admitted taking the electronic components in Fo Tan and some sums of money were found on him, that is $58,377.60 and RMB14,861 and Yen 365,000.

6.At the defendant’s home another 10 watches were found which meant that a total of 185 of the watches stolen from the building at Vantage World in the 1st charge had been recovered.

7.The defendant’s video-recorded interview showed that he is a professional driver, he committed the offences out of financial difficulties, something he maintains in mitigation.  In respect of the Nanyang Plaza, he had found the van parked and unsecured and he had taken the two cartons of electrical components from the van.  He was going to sell the components. He admitted the theft from the lorry in Fo Tan, that is the 2nd charge, and he had sold the components to a person called Ah Shing for $60,000 and the $58,000-odd recovered from his waist-bag was the proceeds of that sale.  As far as the watches that had been stolen in the 1st charge, he had sold 27 of them for $8,000.

8.The facts show that, as I said earlier, 185 watches valued at $179,380 have been recovered so in respect of that, the 1st charge, 185 watches were recovered.  In respect of the 14 cartons stolen in the 2nd charge, $58,377.60, the proceeds of the sale of those items, has been recovered and in the 3rd charge, the two cartons were seized from the defendant on his arrest.

9.Defendant’s antecedents are admitted.  I am told he is now 50 years old.  He has been employed as an operator at Kwai Ching Container Terminal and a goods delivery driver.  He has two children, a 17 year old son and a 14 year old daughter.  He was discharged from custody on 17 November 2012.  The defendant’s criminal record shows that he has a total of eight previous convictions.  The first offence is for dishonesty in 1993 when he was convicted of going equipped for stealing.  Since then, the defendant committed a number of offences of dishonesty, particularly theft or attempted theft.  He was first sentenced to imprisonment in 1994 for theft.  He was subsequently sentenced to imprisonment again in 1994 and in 2005 for a number of offences of theft of a vehicle, then in 2011 for three offences of theft.  He received a substantial sentence, 16 months’ imprisonment for the first offence and the second and third offences 10 months each 5 months which were consecutive. So the defendant does have an unfortunate history of committing offences of dishonesty, particularly theft.

10.I turn to the mitigation.  The defendant says now he is remorseful.  In respect of the offences it is said that they are opportunistic offences, that the defendant was a driver and he was in the vicinity of the stolen goods.  There was no trespass involved, no violence and no particular equipment was needed to steal these items.  They were basically items taken from loading bays and off the back of lorries. 

11.On the other side of the agenda, of course, there is the fact that the items are of high value.  Watches worth over $240,000, computer components in the 3rd charge valued at US$110,000, that’s over HK$800,000 and in the 2nd charge, electronic components valued at almost US$80,000 which would be a figure of over HK$600,000 when converted to Hong Kong dollars.  So in total over HK$1.5 million-worth of goods.  So although the facts are opportunistic, they were targeted at items which are likely to be found to be of value although the defendant does not seem to have achieved a requisite value on the sale of these items.

12.Turning to the defendant’s personal circumstances, he is a husband and father.  He has been working since his release.  He saved up and bought the van which he uses as a driver but he found that he was in financial difficulties and mainly because of an illness to his father I am told that he had expenses of up to $10,000 a month in respect of his father’s illness.  The defendant made substantial contribution to that as well as supporting his two children and his wife at the time.  Unfortunately while the defendant was in custody, his father passed away from his illness.

13.I am told that the two children are doing well and they show promising academic performances.  The defendant obviously would want to return as soon as possible to be a parent to the two children.  The defendant wishes to see his son go to university in the near future.  He tells me that he has remorse and he will not commit criminal offences again.  It is to be hoped that is the case.

14.The defendant also had a sum of Renminbi and Yen found upon him and he offers those in compensation and to be taken into account in sentencing.

15.As far as the sentence for theft is concerned, there is no guideline sentence because the offences of theft can vary considerably.  There is no breach of trust involved in these offences, nevertheless, these are serious offences involving valuable items and a sentence of imprisonment is appropriate.  The other factor I have to consider is that the defendant is not a fresh offender and that he has committed a multiplicity of offences of the same nature over a period of time. 

16.What I shall do is take a starting point on each charge and then give the defendant a discount for his plea of guilty then I will adjust the sentences to give an overall correct total.  I think also as the defendant has offered compensation, I will make a Compensation Order and indicate that will be taken into account in the sentence.  I do not have the conversion rates but RMB14,861 will be a similar sum in Hong Kong dollars, Yen 365,000 would be somewhere over 23 or HK$24,000 or in that region so we are looking at the figure in the region of HK$40,000.

17.The offences are similar in nature.  The value of the items is different in each charge and the defendant could not be in a position to know that when he stole the items but he is targeting valuable items so what I shall do in each of the charges is to take a starting point of 24 months’ imprisonment.  I shall reduce that to 16 months’ imprisonment for the defendant’s plea of guilty.  As far as the cases are concerned, they are committed on separate occasions so they can be served consecutively.  I shall order that 8 months of the 2nd charge be served consecutively to the 1st charge and 8 months of the 3rd charge be served consecutively to the 1st and 2nd charges.  That gives at this stage an overall total of 32 months’ imprisonment and I shall take into account the defendant’s offer of compensation and reduce that to 31 months’ imprisonment.

18.So the total sentence will be 31 months’ imprisonment.  In fact I think the best way to achieve that is to order that 7 months of the 2nd charge run consecutive to the 1st charge and 8 months of the 3rd charge run consecutively to the 1st and 2nd charges. That gives an overall of 31 months’ imprisonment.