HKSAR v. Chen Jun

DCCC 966/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 966 OF 2014

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Reasons for Sentence

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Charges and facts

1.The defendant pleads guilty to theft of a visitor’s permit (1^st Charge) and attempted theft of a diamond (2^nd Charge). 

2.Between 15 and 19 September 2014, PW1 FOO operated a booth at the Hong Kong Jewelry and Gem Fair (“the Fair”), at AsiaWorld-Expo (“AWE”), Chek Lap Kok, Lantau Island, Hong Kong.  She was the manager responsible for the business of Reuven Kaufman, Inc. in Asia, the owner of the merchandise.  Her daughter, PW2 TAN, and TAN’s friend, PW3 CHAN, were her salesladies.  

3.At 3 p.m. on 16 September 2014, the Defendant approached their booth and requested to view a 5.14 carat diamond (“the Diamond”) at their display counter.  After viewing, he asked for its price.  TAN told him that it was US$370,000.  He left a name card, bearing the name王少針 Sharon Wong of AMOUR Wuzhou Longtom C.Z. Company in Guangzhou.  He told Madam FOO that he had to see if his boss would like to purchase the Diamond. 

4.On 17 September 2014, he went to the booth and asked to inspect the Diamond again.  TAN handed it to him for his inspection together with its box and a colour-checking card.  After a while, he asked to see the Diamond’s original certificate but Tan could only find the duplicate.  At this moment, FOO returned to the booth and found him holding something in his left hand with his ring finger and small finger while holding the colour-checking card with the other fingers.  FOO felt suspicious and wrote on a piece of paper to alert TAN and CHAN that he was holding something in his hand. 

5.He then gave another name card bearing the name 王少針 Sharon Wong to FOO and negotiated on the price and the commission.  After a while, he put an item (later found to be a fake diamond) into the Diamond’s box and placed the colour-checking card on the table.  He then rose from the booth and said he had to ask his boss. 

6.FOO told the two to stop him.  She weighed the fake diamond, which turned out to be 9 carats.

7.CHAN heard a sound of impact and saw the Diamond placed on a plastic folder on the table where he was served.  Meanwhile he kept saying “Sorry” in Mandarin.  He also tore a visitor’s permit bearing the name GAR LING WONG into pieces.  He threw the torn pieces into a rubbish bin.  That visitor’s permit was the subject-matter of the 1^st Charge.  

8.The case was reported to the police.  When they came and arrested him, in his rucksack were 12 name cards bearing the name 李嘉明 Sam Lee of Luxe Coral Jewellery Company Limited and 2 name cards bearing the name 王少針 Sharon Wong. 

9.The CCTV camera had captured footages as follows of his presence, inter alia, at the booth:

(1) They showed him putting something into the Diamond’s box;

(2) When FOO picked up the fake diamond from the Diamond’s box, he used the rucksack to cover his right hand;

(3) When he removed the rucksack, the Diamond was found on a plastic folder on the table.

10.In his subsequent video-recorded interview, he said, inter alia, that:

(1) He was a primary school teacher and had a painting frame shop. He had never been in the jewelry business;

(2) He came to Hong Kong on 16 September 2014. He went to AWE directly, intending to buy low-value jewelry;

(3) He had picked up the 2 batches of name cards at AWE. He was worried that the staff members would not let him inspect diamonds without producing a name card;

(4) He gave out the name card bearing王少針 Sharon Wong after inspecting the Diamond on the first day. He went to see the Diamond again, on the following day, as he thought the staff members would not let him see other diamonds;

(5) As regards the entry permit that he had torn and discarded into the rubbish bin, he had picked it up on 16 September 2014 from a rubbish bin at MTR Sheung Shui Station, N.T.;

(6) He did not know who GAR LING WONG was and he never intended to return the visitor’s permit to the Fair organizer because he needed it to attend the Fair.

11.The police later contacted the genuine permit-holder.  He was the manager of a jewelry company in Shenzhen, China.  He told the police that he might have lost the visitor’s permit on 15 September 2014.  He had not authorized anyone to use it. 

12.Travel index check record showed that the Defendant had entered Hong Kong at 9:41 a.m. on 16 September 2014.

Personal background and mitigation

13.The defendant is 42 years of age.  He has a clear record in Hong Kong.  He had once been a primary school teacher and self-employed painting-mounter but he lost both jobs since 2 to 3 years ago. His present wife is a Hong Kong resident.  She works as a beautician to support the family’s finance.  Their 3-year-old son stays with her.  He and his former wife have a twin boy and girl, aged 13, staying with the grandmother.  The boy is a mental defective.  The grandmother and his former wife take care of them.   

14.His solicitor in mitigating submits that there was no prior plan to steal before he came to Hong Kong. 

Sentencing considerations

15.There are no sentencing guidelines for theft applicable to the present case.  There are 2 cases concerning theft of diamonds in jewelry exhibition events which might serve as comparison, though.  The first case is HKSAR v Tsogbadrakh Otgon CACC 393/2013.  The applicant was a visitor from Mongolia.  She was one of the 4 accomplices stealing 10 diamonds in total valued at US$20,108 from a booth of a jewelry show at the Hong Kong Convention and Exhibition Centre (1^st charge), and handling stolen property, ie 1 coral chain valued at US$68,850 and 30 coral beads in total valued at US$251 (2^nd charge).  The Court of Appeal upheld an overall sentence of 4 years and 3 months imposed after trial. 

16.The second case is HKSAR v Padilla Gerardo Gonzaga CACC 275/2011.  There were 5 accomplices from the Philippines who stole from the booth of a jewelry exhibition.  While one was stealing, the others took different roles such as distracting the staff.  The diamond was valued at HK$251,682.  The Court of Appeal regarded that 4 years would be the proper starting point. 

Sentencing this Defendant

17.The attempted theft was premeditated at least insofar as the second day of visit to the booth was concerned.  He had brought along a fake diamond which he placed into the Diamond’s box as a substitute.  He had also dishonestly misrepresented his own identity by using the visitor’s permit that he had picked up and his errand purportedly run for a boss behind.  This is the first aggravating feature.  The second aggravating feature was the very substantial value of the Diamond. 

18.On the second charge, if the theft had been completed, I would have taken a starting point of 3 ½ years.  The CCTV had captured his putting something, which transpired to be a fake diamond, into the Diamond’s box.  He later restored the Diamond to the table when his attempt to steal was about to fail.  I take an actual starting point of 3 years and 3 months because even if he had not restored it to the table, the staff would have caught him red-handed.   Given his plea of guilty, the sentence is 2 years and 2 months. 

19.On the first charge, I take a starting point of 3 months.  Given his plea of guilty, the sentence is 2 months. 

20.On totality basis, I order the sentence to be concurrent.