DCCC1508/2024 HKSAR v. CHAN HON WUN HENRY - LawHero
DCCC1508/2024
區域法院（刑事）Deputy District Judge Charles J Chan11/9/2025[2025] HKDC 1564
DCCC1508/2024
A A
B B
DCCC 1508/2024
C [2025] HKDC 1564 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1508 OF 2024
F F
G ---------------------------------- G
HKSAR
H H
v
I CHAN HON WUN HENRY I
----------------------------------
J J
K Before: Deputy District Judge Charles J Chan K
Date: 12 September 2025
L L
Present: Ms Karen Li, Public Prosecutor of the Department of
M Justice, for HKSAR M
Mr Jonathan Kwan and Mr Roy Chan, instructed by
N N
Littlewoods, for the defendant
O Offence: Theft（盜竊罪） O
P P
--------------------------------------
Q Q
REASONS FOR SENTENCE
R
-------------------------------------- R
S S
T T
U U
V V
-2-
A A
B B
1. The defendant pleaded guilty to a charge of theft of
C HK$5,465,039, contrary to section 9 of the Theft Ordinance, Cap 210. C
D D
2. The Summary of Facts of the case revealed that PW1 was the
E owner of a cryptocurrency trading business, named Coinrise Global E
Advisors Asia Limited (“Coinrise”) which maintained physical shops for
F F
customers to pay cash to buy cryptocurrency. As a general practice,
G customers would bring cash to the shop for purchasing USDT in the G
equivalent amount. Upon receiving requests for purchase of USDT from
H H
the customers, PW1 would transfer the equivalent amount of USDT to the
I digital wallet provided by the customers. The cash received from the I
customers would be stored in the safes of the shops. At close of business
J J
of each day, staff of Coinrise would report via WhatsApp the amount of
K cash received. PW1 would then arrange other staff to collect the cash from K
the shops.
L L
M 3. In April 2022, PW1 started to let her friend (i.e. the defendant) M
to operate a “Coinrise” shop situated at Yuen Long (“the Shop”). PW1 and
N N
the defendant agreed to share the profits of the Shop equally. PW1 knew
O that a Mr Lai (“PW2”) helped the defendant in running the Shop. O
P P
4. According to PW2, he worked at the Shop between 2:00 and
Q 8:00 p.m. on 11 October 2023 and the turnover of the Shop on that day was Q
roughly HK$1 million. PW2 confirmed that he had reported the exact
R R
turnover of the Shop in the WhatsApp group (which included PW1, PW2
S and the defendant) on that day. S
T T
U U
V V
-3-
A A
B B
5. As the relevant staff could not collect the cash from the Shop
C on 11 October 2023, PW2 brought the turnover for 11 October 2023 home C
when he left the Shop at night for security purpose. When PW2 resumed
D D
working at around 2:00 p.m. on 12 October 2023, he put the turnover for
E 11 October 2023 inside the safe of the Shop. At around 4:00 p.m. on 12 E
October 2023, when the defendant returned to the Shop, PW2 handed over
F F
the matter to the defendant and left the Shop.
G G
6. The messages in the WhatsApp group showed that, between
H H
11 and 12 October 2023, PW2 confirmed receiving cash in the total sum
I of HK$1,165,039 from the customers. I
J J
7. At around 4:10 p.m. on 12 October 2023, the defendant sent
K a message in the WhatsApp group stating that the customer purchasing K
USDT worth about HK$4,000,000 had arrived. At 4:16 p.m., the defendant
L L
further sent the blockchain address of the customer and a photo showing
M stacks of cash in the WhatsApp group. PW1 then asked the defendant what M
the total amount was and the defendant replied HK$4,300,000. Equivalent
N N
amount of USDT was then transferred to the digital wallet provided by the
O defendant. O
P P
8. At around 6:30 p.m. on the same day, it was discovered that
Q the safe installed inside the Shop was opened with no cash inside. It was Q
further discovered that the CCTV installed at the Shop had been
R R
disconnected.
S S
T T
U U
V V
-4-
A A
B B
9. Nonetheless, the available CCTV footages in the Shop (before
C the CCTV was disconnected) was reviewed and it was found that on 12 C
October 2023:
D D
E (i) At 4:16 p.m., a male customer (“the Male E
Customer”) had given a lot of cash to the Shop
F F
to purchase cryptocurrency, and the defendant
G put the money into a black bag; G
H H
(ii) At 4:23 p.m., an unknown male (“WP”)
I appeared and lingered behind the Male I
Customer;
J J
K (iii) At 4:23 p.m., the defendant opened the safe, took K
money therein and put the money into the same
L L
black bag;
M M
(iv) At 4:24 p.m., the defendant opened the door of
N N
the Shop for WP to come inside the Shop;
O O
(v) At 4:24 p.m., the Male Customer left the Shop;
P P
and
Q Q
(vi) At 4:25 p.m., the defendant pulled a cable and
R R
the CCTV was then disconnected.
S S
T T
U U
V V
-5-
A A
B B
10. The CCTV of nearby shops showed that the defendant and
C WP left the Shop and closed the gate at around 4:24 pm. They carried C
handbags with them.
D D
E 11. Immigration record revealed that the defendant left Hong E
Kong via the airport at 6:33 p.m. on 12 October 2023. The defendant was
F F
arrested at the airport when he returned to Hong Kong on 1 November 2023.
G G
12. Based on the above, the defendant admitted that he, on 12
H H
October 2023, at the Shop, stole a total cash of HK$5,465,039, being
I property belonging to Coinrise. I
J J
13. In mitigation, Mr Kwan helpfully referred to a number of case
K authorities. According to HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, K
a starting point of 5 to 10 years should be adopted. In HKSAR v Yoshida
L L
Takashi [2021] HKDC 444, a starting point of 4 years and 9 months was
M adopted. The defendant in that case took approximately HK$5.1m M
belonged to the company he worked for as an accounting manager, and
N N
spent the money on gambling. The offence spanned across a period of two
O years. It was also described that “this offence was committed due to his O
desperate attempt to make up for his own mistakes (#12)”. It is in this
P P
context that the case could be said to be more serious than the present case.
Q Q
R R
S S
T T
U U
V V
-6-
A A
B B
14. In determining the appropriate sentence, the following factors
C were also said to be relevant (see R v Barrick (1985) 81 Cr App R 78 at C
82):
D D
E (i) the quality and degree of trust reposed in the offender E
including his rank;
F F
G (ii) the period over which the fraud or the thefts have been G
perpetrated;
H H
I (iii) the use to which the money or property dishonestly I
taken was put;
J J
K (iv) the effect upon the victim; K
L L
(v) the impact of the offences on the public and public
M confidence; M
N N
(vi) the effect on fellow-employees or partners;
O O
(vii) the effect on the offender himself;
P P
Q (viii) the offender’s own history; and Q
R R
(ix) those matters of mitigation special to himself such as
S illness; being placed under great strain by excessive S
responsibility or the like; where, as sometimes happens,
T T
there has been a long delay, say over two years,
U U
V V
-7-
A A
B B
between his being confronted with his dishonesty by
C his professional body or the police and the start of his C
trial; finally, any help given by him to the police.”
D D
E 15. Mr Kwan stressed that the present case was a one-off incident; E
there was no forged document used; nor did the defendant exploit any
F F
loophole in the Banking System. Nevertheless, it is clearly a case of breach
G of trust and this court finds no basis to significantly depart from the G
guideline in Ng Kwok Wing. The degree of trust in this case was high. And
H H
more than one person was involved in the stealing (i.e. WP). This court is
I of the view that this case is particularly serious of its kind. I
J J
16. It was revealed that the defendant had initially invested
K HK$2m in Coinrise. This sum was collected from his friends who agreed K
to invest in Coinrise. Later on, when PW1 asked the defendant to invest
L L
further in order to expand the business of Coinrise, the defendant managed
M to gather HK$3m more from his friends. The defendant was promised a 5% M
monthly return of the invested amount. It is against this background that
N N
the defendant became a partner of the Shop.
O O
17. The defendant claimed that the sharing of profits did not take
P P
place; nor was the promised monthly 5% return realised. The defendant
Q once asked to withdraw from the business and also asked for a refund of Q
the invested sums but in vain. He said, PW1 declined and asked the
R R
defendant to wait for a bull market or find someone else to takeover.
S S
T T
U U
V V
-8-
A A
B B
18. Based on these, it was described that the defendant had
C suffered from great dissatisfaction and disappointment. He was facing C
tremendous pressure because seemingly the investors behind would have
D D
made enquiries with him or reacted very aggressively before the offence
E took place. In his oral submissions, Mr Kwan explained the financial E
position of PW1 and the Shop and it is apparent that whilst the Shop had
F F
lost the money, PW1 did not actually suffer a loss in light of the prior
G agreements between PW1 and the defendant. Of course that is arrived at G
on the assumption that the Shops went well and the agreements could be
H H
materialised.
I I
19. All in all, Mr Kwan said that his client is genuinely remorseful
J J
and asked this court to treat his client as a person of clear criminal record
K when he had only one dissimilar record a number of years ago. K
L L
20. It is noteworthy that the offences involved in Ng Kwok Wing
M concerned 3 companies and the misuse of cheques of the companies. The M
stolen money was about HK$2m in total. The defendants in that case had
N N
extensive conviction records, most of which were for theft and other
O offences involving dishonesty. It was yet remarked by the Court of Appeal O
that:
P P
Q “22. 再者，上述量刑指引並非「緊身衣」，一成不變。在 Q
盜竊案或同類案件，每宗案件都可能有個別的減刑或加重罪
R 責因素而最終判刑亦必須反映該些因素。” R
(Moreover, the aforementioned sentencing guidelines
S are not a ‘straitjacket’ – they are not rigid or unchanging. Each S
case of theft or a similar nature may involve unique mitigating
T or aggravating factors, and the final sentence must reflect those T
considerations. (Unofficial translation))
U U
V V
-9-
A A
B B
21. This court has considered all the mitigation materials. It must
C be stressed again that this case is particularly serious. The sum of money C
involved is substantial. Nevertheless, it is accepted that this case is one-
D D
off and the undisputed background of the case supports the view that the
E defendant could not bear the pressure, otherwise he would not have E
committed the offence. He also chose to return to Hong Kong and his
F F
guilty plea indicates a positive remorse attitude.
G G
22. This court also shares the view expressed in Yoshida Takashi:
H H
I “7. These guidelines are, however, not straitjackets and the I
Court must consider other factors including the quality and
degree of trust reposed in the offender, including his rank; the
J period over which the thefts have taken place, the use to which J
the money dishonestly appropriated has been put, and the
K
offender’s history (as stated in HKSAR v Lam Wai Hung, K
(CACC 5/2006)1)”
L L
23. Whilst it is not categorically a case of “opportunist” theft, it is
M rather clear that the premeditation in the present case was limited. It is also M
accepted that the offence was not committed purely out of personal greed.
N N
To an extent, the defendant could well have haboured the view that he was
O entitled (collectively with those investors) to some of the profits or capitals O
of Coinrise, but the stealing of the HK$5m cash went far beyond the
P P
permissible boundaries of that perception. At least, at the time he took the
Q cash, he was acting dishonestly and the cash did not represent his Q
investments or promised returns.
R R
S S
T T
1
Yoshida Takashi at para 7
U U
V V
- 10 -
A A
B B
24. In all the circumstances, a 60-month starting point should be
C taken in order to reflect sufficiently the gravity of the offence. The C
defendant is entitled to 1/3 discount. The 40 months’ imprisonment is
D D
further reduced by 2 months to reflect the mitigations. There is no basis to
E suspend the sentence, nor is any further reduction justified. E
F F
25. The defendant is sentenced to 38 months’ imprisonment
G accordingly. G
H H
I I
( Charles J Chan )
J Deputy District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
法官引用 HKSAR v Ng Kwok Wing 確立的 5 至 10 年量刑指引，認為本案涉及高度的 trust 且有同夥參與，屬嚴重個案。然而，法官同時參考 Yoshida Takashi 認為 sentencing guidelines 並非「緊身衣」 (straitjacket)，應考慮個案特點。法官認定被告雖有不滿，但盜竊行為已遠超合理範圍，構成 dishonesty。最終採取 60 個月作為 starting point，並根據認罪及個人減刑因素作出調整。
引用案例與條文
引用 HKSAR v Ng Kwok Wing 確立 5-10 年的量刑起點；引用 HKSAR v Yoshida Takashi 及 HKSAR v Lam Wai Hung 強調量刑指引非僵化，需考慮 trust 程度、盜竊期間及被告背景；引用 R v Barrick 關於欺詐/盜竊量刑的考量因素。
### 案件基本資料
- 案件名稱：HKSAR v Chan Hon Wun Henry
- 法院：區域法院 (DC)
- 法官：Charles J Chan
- 判決日期：2025年9月12日
### 案情摘要
被告與PW1合作經營一家名為Coinrise的加密貨幣交易店。2023年10月12日，被告在店內利用一名客戶購買USDT的機會，將該客戶支付的現金以及保險箱內原有的營業額（總計約546萬港元）放入黑袋中，並在一名同夥(WP)協助下將錢轉走。被告隨後切斷CCTV電源並於當日傍晚離開香港，直到11月返回香港時被捕。
### 核心法律爭議
本案的核心 legal issue 在於如何為涉及高額金額且違反信任的盜竊罪 (Theft) 決定適當的量刑。控方強調金額巨大且有預謀；辯方則提出 mitigation，指被告因投資Coinrise後未能獲得承諾的回報且面臨投資者壓力，並非純粹出於貪婪，且屬 one-off incident。
### 判決理由
法官引用 HKSAR v Ng Kwok Wing 確立的 5 至 10 年量刑指引，認為本案涉及高度的 trust 且有同夥參與，屬嚴重個案。然而，法官同時參考 Yoshida Takashi 認為 sentencing guidelines 並非「緊身衣」 (straitjacket)，應考慮個案特點。法官認定被告雖有不滿，但盜竊行為已遠超合理範圍，構成 dishonesty。最終採取 60 個月作為 starting point，並根據認罪及個人減刑因素作出調整。
### 引用案例與條文
引用 HKSAR v Ng Kwok Wing 確立 5-10 年的量刑起點；引用 HKSAR v Yoshida Takashi 及 HKSAR v Lam Wai Hung 強調量刑指引非僵化，需考慮 trust 程度、盜竊期間及被告背景；引用 R v Barrick 關於欺詐/盜竊量刑的考量因素。
### 裁決與命令
被告被判處監禁 38 個月。計算過程為：起點 60 個月 $\rightarrow$ 認罪減刑 1/3 (餘 40 個月) $\rightarrow$ 考慮減刑因素再減 2 個月。
### 判決啟示
本案強調即使被告認為自己對受害方擁有某種債權或應得利益，但採取非法盜竊手段仍構成 dishonesty，不能作為免罪理由，僅能作為有限的 mitigation。
---
### 免責聲明
本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details
- Case Name: HKSAR v Chan Hon Wun Henry
- Court: District Court (DC)
- Judge: Charles J Chan
- Date of Judgment: 12 September 2025
### Factual Background
The defendant operated a cryptocurrency shop (Coinrise) as a partner. On 12 October 2023, he stole HK$5,465,039, consisting of cash from a customer and funds from the shop's safe. He disconnected the CCTV, fled Hong Kong with an accomplice (WP), and was arrested upon his return on 1 November 2023.
### Key Legal Issues
The primary issue was determining the appropriate sentence for a high-value theft involving a breach of trust. The defense argued for mitigation based on the defendant's financial pressure and failed investment returns from the business owner, claiming the act was a one-off incident rather than pure greed.
### Ratio Decidendi
The judge applied the sentencing guideline from Ng Kwok Wing (5-10 years) due to the high degree of trust and involvement of an accomplice. However, following the principle in Yoshida Takashi that guidelines are not 'straitjackets', the judge considered the defendant's personal pressure and remorse. While the defendant felt entitled to some funds, the judge ruled the theft far exceeded any permissible boundary and was clearly dishonest.
### Key Precedents & Statutes
HKSAR v Ng Kwok Wing (starting point of 5-10 years); HKSAR v Yoshida Takashi and HKSAR v Lam Wai Hung (flexibility of guidelines based on trust and offender's history); R v Barrick (factors for sentencing in fraud/theft).
### Decision & Orders
The defendant was sentenced to 38 months' imprisonment. This was derived from a 60-month starting point, reduced by 1/3 for the guilty plea (to 40 months), and a further 2-month reduction for mitigation.
### Key Takeaways
The judgment reaffirms that while personal grievances or perceived entitlements may serve as mitigating factors, they do not justify dishonest appropriation of funds, especially when the amount significantly exceeds the claimed loss.
---
### Disclaimer
This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.
A A
B B
DCCC 1508/2024
C [2025] HKDC 1564 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1508 OF 2024
F F
G ---------------------------------- G
HKSAR
H H
v
I CHAN HON WUN HENRY I
----------------------------------
J J
K Before: Deputy District Judge Charles J Chan K
Date: 12 September 2025
L L
Present: Ms Karen Li, Public Prosecutor of the Department of
M Justice, for HKSAR M
Mr Jonathan Kwan and Mr Roy Chan, instructed by
N N
Littlewoods, for the defendant
O Offence: Theft（盜竊罪） O
P P
--------------------------------------
Q Q
REASONS FOR SENTENCE
R
-------------------------------------- R
S S
T T
U U
V V
-2-
A A
B B
1. The defendant pleaded guilty to a charge of theft of
C HK$5,465,039, contrary to section 9 of the Theft Ordinance, Cap 210. C
D D
2. The Summary of Facts of the case revealed that PW1 was the
E owner of a cryptocurrency trading business, named Coinrise Global E
Advisors Asia Limited (“Coinrise”) which maintained physical shops for
F F
customers to pay cash to buy cryptocurrency. As a general practice,
G customers would bring cash to the shop for purchasing USDT in the G
equivalent amount. Upon receiving requests for purchase of USDT from
H H
the customers, PW1 would transfer the equivalent amount of USDT to the
I digital wallet provided by the customers. The cash received from the I
customers would be stored in the safes of the shops. At close of business
J J
of each day, staff of Coinrise would report via WhatsApp the amount of
K cash received. PW1 would then arrange other staff to collect the cash from K
the shops.
L L
M 3. In April 2022, PW1 started to let her friend (i.e. the defendant) M
to operate a “Coinrise” shop situated at Yuen Long (“the Shop”). PW1 and
N N
the defendant agreed to share the profits of the Shop equally. PW1 knew
O that a Mr Lai (“PW2”) helped the defendant in running the Shop. O
P P
4. According to PW2, he worked at the Shop between 2:00 and
Q 8:00 p.m. on 11 October 2023 and the turnover of the Shop on that day was Q
roughly HK$1 million. PW2 confirmed that he had reported the exact
R R
turnover of the Shop in the WhatsApp group (which included PW1, PW2
S and the defendant) on that day. S
T T
U U
V V
-3-
A A
B B
5. As the relevant staff could not collect the cash from the Shop
C on 11 October 2023, PW2 brought the turnover for 11 October 2023 home C
when he left the Shop at night for security purpose. When PW2 resumed
D D
working at around 2:00 p.m. on 12 October 2023, he put the turnover for
E 11 October 2023 inside the safe of the Shop. At around 4:00 p.m. on 12 E
October 2023, when the defendant returned to the Shop, PW2 handed over
F F
the matter to the defendant and left the Shop.
G G
6. The messages in the WhatsApp group showed that, between
H H
11 and 12 October 2023, PW2 confirmed receiving cash in the total sum
I of HK$1,165,039 from the customers. I
J J
7. At around 4:10 p.m. on 12 October 2023, the defendant sent
K a message in the WhatsApp group stating that the customer purchasing K
USDT worth about HK$4,000,000 had arrived. At 4:16 p.m., the defendant
L L
further sent the blockchain address of the customer and a photo showing
M stacks of cash in the WhatsApp group. PW1 then asked the defendant what M
the total amount was and the defendant replied HK$4,300,000. Equivalent
N N
amount of USDT was then transferred to the digital wallet provided by the
O defendant. O
P P
8. At around 6:30 p.m. on the same day, it was discovered that
Q the safe installed inside the Shop was opened with no cash inside. It was Q
further discovered that the CCTV installed at the Shop had been
R R
disconnected.
S S
T T
U U
V V
-4-
A A
B B
9. Nonetheless, the available CCTV footages in the Shop (before
C the CCTV was disconnected) was reviewed and it was found that on 12 C
October 2023:
D D
E (i) At 4:16 p.m., a male customer (“the Male E
Customer”) had given a lot of cash to the Shop
F F
to purchase cryptocurrency, and the defendant
G put the money into a black bag; G
H H
(ii) At 4:23 p.m., an unknown male (“WP”)
I appeared and lingered behind the Male I
Customer;
J J
K (iii) At 4:23 p.m., the defendant opened the safe, took K
money therein and put the money into the same
L L
black bag;
M M
(iv) At 4:24 p.m., the defendant opened the door of
N N
the Shop for WP to come inside the Shop;
O O
(v) At 4:24 p.m., the Male Customer left the Shop;
P P
and
Q Q
(vi) At 4:25 p.m., the defendant pulled a cable and
R R
the CCTV was then disconnected.
S S
T T
U U
V V
-5-
A A
B B
10. The CCTV of nearby shops showed that the defendant and
C WP left the Shop and closed the gate at around 4:24 pm. They carried C
handbags with them.
D D
E 11. Immigration record revealed that the defendant left Hong E
Kong via the airport at 6:33 p.m. on 12 October 2023. The defendant was
F F
arrested at the airport when he returned to Hong Kong on 1 November 2023.
G G
12. Based on the above, the defendant admitted that he, on 12
H H
October 2023, at the Shop, stole a total cash of HK$5,465,039, being
I property belonging to Coinrise. I
J J
13. In mitigation, Mr Kwan helpfully referred to a number of case
K authorities. According to HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, K
a starting point of 5 to 10 years should be adopted. In HKSAR v Yoshida
L L
Takashi [2021] HKDC 444, a starting point of 4 years and 9 months was
M adopted. The defendant in that case took approximately HK$5.1m M
belonged to the company he worked for as an accounting manager, and
N N
spent the money on gambling. The offence spanned across a period of two
O years. It was also described that “this offence was committed due to his O
desperate attempt to make up for his own mistakes (#12)”. It is in this
P P
context that the case could be said to be more serious than the present case.
Q Q
R R
S S
T T
U U
V V
-6-
A A
B B
14. In determining the appropriate sentence, the following factors
C were also said to be relevant (see R v Barrick (1985) 81 Cr App R 78 at C
82):
D D
E (i) the quality and degree of trust reposed in the offender E
including his rank;
F F
G (ii) the period over which the fraud or the thefts have been G
perpetrated;
H H
I (iii) the use to which the money or property dishonestly I
taken was put;
J J
K (iv) the effect upon the victim; K
L L
(v) the impact of the offences on the public and public
M confidence; M
N N
(vi) the effect on fellow-employees or partners;
O O
(vii) the effect on the offender himself;
P P
Q (viii) the offender’s own history; and Q
R R
(ix) those matters of mitigation special to himself such as
S illness; being placed under great strain by excessive S
responsibility or the like; where, as sometimes happens,
T T
there has been a long delay, say over two years,
U U
V V
-7-
A A
B B
between his being confronted with his dishonesty by
C his professional body or the police and the start of his C
trial; finally, any help given by him to the police.”
D D
E 15. Mr Kwan stressed that the present case was a one-off incident; E
there was no forged document used; nor did the defendant exploit any
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loophole in the Banking System. Nevertheless, it is clearly a case of breach
G of trust and this court finds no basis to significantly depart from the G
guideline in Ng Kwok Wing. The degree of trust in this case was high. And
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more than one person was involved in the stealing (i.e. WP). This court is
I of the view that this case is particularly serious of its kind. I
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16. It was revealed that the defendant had initially invested
K HK$2m in Coinrise. This sum was collected from his friends who agreed K
to invest in Coinrise. Later on, when PW1 asked the defendant to invest
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further in order to expand the business of Coinrise, the defendant managed
M to gather HK$3m more from his friends. The defendant was promised a 5% M
monthly return of the invested amount. It is against this background that
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the defendant became a partner of the Shop.
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17. The defendant claimed that the sharing of profits did not take
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place; nor was the promised monthly 5% return realised. The defendant
Q once asked to withdraw from the business and also asked for a refund of Q
the invested sums but in vain. He said, PW1 declined and asked the
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defendant to wait for a bull market or find someone else to takeover.
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18. Based on these, it was described that the defendant had
C suffered from great dissatisfaction and disappointment. He was facing C
tremendous pressure because seemingly the investors behind would have
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made enquiries with him or reacted very aggressively before the offence
E took place. In his oral submissions, Mr Kwan explained the financial E
position of PW1 and the Shop and it is apparent that whilst the Shop had
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lost the money, PW1 did not actually suffer a loss in light of the prior
G agreements between PW1 and the defendant. Of course that is arrived at G
on the assumption that the Shops went well and the agreements could be
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materialised.
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19. All in all, Mr Kwan said that his client is genuinely remorseful
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and asked this court to treat his client as a person of clear criminal record
K when he had only one dissimilar record a number of years ago. K
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20. It is noteworthy that the offences involved in Ng Kwok Wing
M concerned 3 companies and the misuse of cheques of the companies. The M
stolen money was about HK$2m in total. The defendants in that case had
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extensive conviction records, most of which were for theft and other
O offences involving dishonesty. It was yet remarked by the Court of Appeal O
that:
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Q “22. 再者，上述量刑指引並非「緊身衣」，一成不變。在 Q
盜竊案或同類案件，每宗案件都可能有個別的減刑或加重罪
R 責因素而最終判刑亦必須反映該些因素。” R
(Moreover, the aforementioned sentencing guidelines
S are not a ‘straitjacket’ – they are not rigid or unchanging. Each S
case of theft or a similar nature may involve unique mitigating
T or aggravating factors, and the final sentence must reflect those T
considerations. (Unofficial translation))
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21. This court has considered all the mitigation materials. It must
C be stressed again that this case is particularly serious. The sum of money C
involved is substantial. Nevertheless, it is accepted that this case is one-
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off and the undisputed background of the case supports the view that the
E defendant could not bear the pressure, otherwise he would not have E
committed the offence. He also chose to return to Hong Kong and his
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guilty plea indicates a positive remorse attitude.
G G
22. This court also shares the view expressed in Yoshida Takashi:
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I “7. These guidelines are, however, not straitjackets and the I
Court must consider other factors including the quality and
degree of trust reposed in the offender, including his rank; the
J period over which the thefts have taken place, the use to which J
the money dishonestly appropriated has been put, and the
K
offender’s history (as stated in HKSAR v Lam Wai Hung, K
(CACC 5/2006)1)”
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23. Whilst it is not categorically a case of “opportunist” theft, it is
M rather clear that the premeditation in the present case was limited. It is also M
accepted that the offence was not committed purely out of personal greed.
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To an extent, the defendant could well have haboured the view that he was
O entitled (collectively with those investors) to some of the profits or capitals O
of Coinrise, but the stealing of the HK$5m cash went far beyond the
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permissible boundaries of that perception. At least, at the time he took the
Q cash, he was acting dishonestly and the cash did not represent his Q
investments or promised returns.
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1
Yoshida Takashi at para 7
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24. In all the circumstances, a 60-month starting point should be
C taken in order to reflect sufficiently the gravity of the offence. The C
defendant is entitled to 1/3 discount. The 40 months’ imprisonment is
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further reduced by 2 months to reflect the mitigations. There is no basis to
E suspend the sentence, nor is any further reduction justified. E
F F
25. The defendant is sentenced to 38 months’ imprisonment
G accordingly. G
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I I
( Charles J Chan )
J Deputy District Judge J
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