HKSAR v. Chiang Sai Man
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DCCC 892/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 892 OF 2014 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one charge of theft, contrary to s.9 of the Theft Ordinance, Cap.210. Particulars are that he on 28 May 2014, together with another person, stole 5 boxes containing 210 mobile phones at the loading bay area, Cores C and D, Ground Floor, Terminal 1, Asia Airfreight Terminal, no.10 Chun Ping Road, Chek Lap Kok. Outline of facts 2.The defendant was, at the time of his commission of the offence, an employee of Kwai Bon Transportation Limited. Kwai Bon is a sub-contractor logistic company of Federal Express (HK) Limited. 3.As the sub-contractor, Kwai Bon was responsible for the delivery of a shipment of mobile phones that was sent via FedEx to a company in Hong Kong. 12 carton boxes of the phones arrived in Hong Kong on 27 May and were placed inside a container pending delivery. The container was left opened and was not secured. The delivery was made on the next day. Upon receipt of the delivery, 5 carton boxes were found to be missing 4.An investigation was carried out by the Operation Manager of FedEx and closed circuit television footage of the proximity of the container holding the 12 carton boxes revealed that the defendant had appeared at the loading bay area at around 5:54am on 28 May and had approached the container in question. The defendant was seen moving a smaller container next to that container. He stayed in the gap between the two containers for about one minute and then pushed away the smaller container onto a lorry SS3677. The defendant drove the lorry to a parking space outside Terminal 1. Subsequently, the lorry was moved behind another lorry LG1372. 5.At around 6:52am, another person drove LG1372 away and returned to the Terminal at around 7:15am. GPS record of LG1372 showed that it had been driven to Chung Yan Road near Yat Tung Estate during this period, but the trip was not recorded in the vehicle log sheet. 6.The defendant was arrested on 29 May for theft of the 5 cartons of phones. Under caution and in the subsequent video recorded interview, the defendant admitted that he had discussed with his colleague about stealing the goods on 27 May; that he went to work at Asia Airfreight Terminal at around 5:35am on 28 May and found the container of mobile phones; that he removed 5 cartons boxes from the container and loaded them into the smaller container; that he loaded the smaller container onto SS3677 and then moved it onto LG1372; that he then informed his colleague that the stolen phones were in LG1372 and asked the colleague to move them away; that he knew from FedEx that the stolen phones were worth about $700,000; that his colleague had agreed to sell the phones and then to give one-third of the proceeds to the defendant; and that the colleague had told the defendant his share would be about $200,000. Previous convictions 7.From a total of 8 court appearances, the defendant has 17 convictions. In November 1992 the defendant was convicted of 1 charge of attempted theft and 3 charges of theft. In June 1994, the defendant was convicted of 3 charges of burglary, 1 charge of theft, 1 charge of attempted theft in the Fanling Magistracy and was fined $1,000 on each of the 3 burglary charges and sent to the Drug Addiction Treatment Centre for the other charges. He was also convicted of 2 drug related offences on the same day. 8.The defendant’s last conviction was on 7 August 1998, when he was fined for the possession of and dealing with dutiable goods. Mitigation 9.The defendant is 46 years old. He and his wife live with their 16 year old daughter in rented accommodation with a rental of $2,200 per month. The defendant is the sole breadwinner and since his arrest, his family has been relying on friends. 10.Mr. Fan, for the defendant, told the court that the defendant committed the offence because he wanted to use the money to send his daughter to Taiwan to study. Despite being promised a share of the sales proceeds of the stolen phones, the defendant did not receive anything from the accomplice. 11.Mr. Fan pointed out that although the defendant is not of clear record and has previous convictions relating to dishonesty, they were all linked to his then drug abuse. Since the defendant’s last transgression some 16 years ago, he had stayed away from drugs and stayed on the right side of the law. 12.Lastly, letters in mitigation written by the defendant, his wife, daughter and his former employer were handed up. In gist, they speak to the defendant making the wrong decision and how he should be dealt with leniently. Sentence 13.The maximum sentence for theft on conviction upon indictment is that of 10 years’ imprisonment. Sentencing Guidelines 14.It is not disputed, and I do so find, that the defendant was in a position of trust when he committed the offence and was therefore in breach of the trust reposed in him by his employers. As such, the sentencing guidelines laid down in the case of HKSAR v Cheung Mee Kiu, CACC 99 of 2006 apply. 15.Mr. Fan in his mitigation referred to paragraph 15 of the judgment of Cheung Mee Kiu and submitted that for the amount of $1,048,320 in our present case, the applicable band would be Band 4, with the sentencing range of 2 to 3 years’ imprisonment. 16.I do not agree with this approach. I find that the proper guidelines are as set out at paragraph 22, which clearly states the range of the band as from $1 to $3 million. Furthermore, the guidelines were revised in the case of HKSAR v Ng Kwok Wing, CACC 398 of 2007, where the Court of Appeal stated that for theft of $1 million to $3 million involving a breach of trust, the guideline sentencing range is that of 3 to 5 years’ imprisonment. Both legally and mathematically speaking, $1,048,320 is more than 1 million. Factors considered 17.The theft was pre-meditated and involved an accomplice. 18.The quality and degree of trust reposed in the defendant was significant. Given the amount of goods being handled, FedEx and Kwai Bon must rely on the integrity of their employees since it would be impossible to supervise their handling of the goods all the time. 19.Hong Kong is an international port and its security is of great importance. The defendant’s theft would have an impact on public confidence on the security of both FedEx and the Asia Airfreight Terminal in general. 20.Based on these factors, and applying the guidelines, I would adopt a starting point of 3 years and 3 months’ imprisonment. Lack of aggravating factors 21.Although the defendant has multiple convictions, with 9 involving dishonesty, they were a long time ago and the defendant has been a law abiding citizen for the past 16 years. I therefore will not take his record as an aggravating factor. Lack of mitigating factors 22.The fact that the defendant wanted to steal from others in order to support her daughter’s study cannot be a mitigating factor. I find that there are no mitigating factors other than his plea of guilty. 23.The defendant is therefore sentenced to 2 years and 2 months’ imprisonment after granting him the full one-third discount for his guilty plea.
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