HKSAR v. CHAN KA MEE CAROL

DCCC1380/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1380 OF 2010

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Reasons for Sentence

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1.  The defendant was convicted upon her guilty pleas of one charge of theft and 10 charges of fraud.

2.  In sentencing, I have considered the whole circumstances of the case, including its nature and facts, background of the defendant, and mitigation put forward on her behalf.

3.  The facts of the case may be summarised as follows.

4.  At all material times, the defendant was employed as a personal secretary by a Mr To, who owned Man Fai Tai Holdings Ltd (“the Company”).  Mr To trusted her very much and let her handle many of his personal financial matters.

5.  In August 2008 Mr Toh asked the defendant to cancel two of his credit cards, namely, one DBS American Express card and one American Express card.  The defendant received the two credit cards, but did not take steps to cancel them as instructed.

6.  In April 2009 the old DBS American Express card expired and a new card with a new number was issued.  The defendant received the card for Mr To, but instead of handing it over, she kept it.  Since then, the defendant had been using the credit cards of Mr To to withdraw cash and make purchase without the knowledge and consent of the latter.

7.  Starting from August 2009, on a number of occasions, Mr To gave the defendant his HSBC Visa card to make purchase.  The defendant misused the credit cards to spend on her own purchases.

8.  Credit card statements were received by the defendant on behalf of Mr To.  Whenever she received a statement, she forged the signature of Mr To on the approval form, so that the accounting department of Mr To’s company would prepare a cheque for the signature of Mr To to make payment.  Such cheques, however, did not reach Mr To.  They were all intercepted by the defendant.  She forged the signature of Mr To and passed the cheques back to the accounts department for settlement of the credit card bills.

9.  The charges which defendant faces may be divided into the following three categories.

10.  The first category consists only of Charge 1. It is a charge of theft.

11.  Between 8 December 2008 and 19 December 2009, on 72 occasions, the defendant used the old and new DBS American Express cards to withdraw cash by way of cash advance at ATM machines.  By this means, the defendant stole a total of $338,000 from the credit cards accounts held by Mr To.  It also caused Mr To further loss, since a total of about $28,000 was levied on him as financial charge for the cash advance.

12.  The second category consists of Charge 2 to Charge 4.  Each of these charges relates to the misuse by the defendant of Mr To’s credit cards to purchase goods and service for herself.

13.  Charge 2 concerns the two DBS American Express cards, and the use of them between 20 January 2009 and 19 December 2009.  On 43 occasions, the defendant spent with these two credit cards a total amount of $63,260.90.

14.  Charge 3 concerns the American Express card. Between 7 August 2008 and 26 December 2009, on 551 occasions, the defendant spent with this credit card a total of $555,708.10.

15.  Charge 4 concerns the HSBC Visa card.  Between

28 September 2009 and 28 December 2009, on 14 occasions, the defendant spent with this credit card a total of $110,811.

16.  The third category consists of Charge 5 to Charge 11.

17.  Whilst it was one of the duties of the defendant to book air tickets and hotels for the company’s executives, on

18.  After her misconduct had been discovered, the company asked for compensation.  The defendant paid $2,000 to the company.

19.  The defendant was arrested on 8 January 2010. She admitted having misused the credit cards of Mr To and forged his signatures, as described earlier.

20.  The defendant is 34 years of age.  She is a first-time offender.  Her father is retired and her mother is a housewife.  She has two sisters, both in proper employment.

21.  At the age of 17, the defendant completed Form 5 education and started to work.  Apparently, she did well.  She started as a receptionist, then a clerk, a secretary and accounts supervisor, and eventually became a personal secretary greatly trusted by Mr To.

22.  I was told that after this incident, the defendant still continued to work.

23.  Learned counsel submitted three letters from her colleagues.  All spoke well of the defendant.

24.  I was also told the defendant had been involved in voluntary work, and a social worker and a co-volunteer also wrote letters to the court and both made good comment on her.

25.  Learned counsel informed the court that before the defendant started to commit the offences, she was under stress and was suffering from mood problem.  She was under treatment but she ceased to continue medication shortly before she started to commit the offences.

26.  Learned counsel said the mental concern was not that serious, and assured the court that the defendant had the necessary mens rea in committing the offences.  She managed to give the police a full and detailed account of what she had done.

27.  The offences committed by the defendant are serious.  What the defendant did involved a breach of trust.  As a result, the company which employed the defendant has to bear all the monies spent and suffered a loss of slightly over $1 million.

28.  For sentencing in cases which involve a breach of trust, the Court of Appeal agreed in the case of R v Ying Lai Chau [1991] 1 HKLR 48 what Lord Lane said in Barrick (1985) 81 Cr App R 78, in relation to the matters to which the courts should pay regard in determining what the proper level of sentence should be:

“(1) the quality and degree of trust reposed in the offender including his rank;

(2) the period over which the fraud or the thefts have been perpetrated;

(3) the use to which the money or property dishonestly taken was put;

(4) the effect upon the victim;

(5) the impact of the offences on the public and public confidence;

(6) the effect on fellow employees or partners;

(7) the effect on the offender himself;

(8) his own history;

(9) those matters of mitigation special to himself, such as illness, being placed under great strain by excessive responsibility or the like; and finally,

(10) any help given by him to the police”.

29.  In my judgment, the quality and degree of trust reposed on the defendant was high.

30.  For a period of about one year, she had committed the offence on more than 600 occasions.  Certain degree of planning was involved.  As a result, the company which employed the defendant suffered a loss of more than $1 million.

31.  She used the money primarily on her personal use quite frequently.  The spending cannot be said to be in an extravagant manner, but clearly, with her own earning, she would not have such a spending capacity. To effect payment and covering up, the defendant forged the signature of her employer.

32.  I have also taken into account what the Court of Appeal said in the case HKSAR v Cheung Mee Kiu, CACC99/2006, and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017. 

33.  The second category of charges also involved use of others’ credit card.  This adds another dimension of the gravity.  Apart from causing financial loss to the persons in question, it affects the integrity of the credit card system.

34.  As far as sentencing involving this kind of offence, Stuart-Moore JA, as he then was, said in HKSAR v Chan Kwai Fui, CACC194/1998, that R v Chan Sui To, CACC115/1996, is one of the leading cases on the subject.

35.  I note that for each charge, only one credit card was involved.  The offence was committed by the defendant alone and she committed the offence frequently, though the amount involved on most occasions can be said to be low.

36.  That said, there were occasions of spending in the region of $10,000 on one single transaction.  The credit card was not false, but it was stolen and used in breach of trust.

37.  In all the circumstances, I am of the view that an immediate custodial sentence is the only proper and appropriate sentence to be imposed.

38.  I adopt the following starting points:

(1) Charge 1, 2 years;

(2) Charge 2, 2½ years;

(3) Charge 3, 3½ years;

(4) Charge 4, 2½ years;

(5) Charge 5, it being the first offence committed by the defendant, and the amount involved was only $880, I adopt a starting point of 6 months;

(6) Charge 6 to Charge 11, each 12 months.

39.  The defendant pleaded guilty to each charge. She is entitled to a one-third discount for this reason.

40.  I was told that the defendant had paid the company $2,000 as compensation.  I am well aware that restitution has to be taken into account, as it can amount to mitigation, particularly when coupled with other factors such as a plea of guilty, irrespective of the motive behind.

41.  However, the weight to be attached to restitution as a mitigating factor depends always on the circumstances.

42.  Having considered the circumstances in the present case, bearing in mind the circumstances in which compensation was paid, I am of the view that the amount repaid was so insignificant that this conduct has very limited mitigating effect.

43.  Having considered the whole circumstances, I am of the view that one-third is the extent of discount the defendant is entitled to in this case.

44.  Based on the matters aforesaid, I sentence the defendant as follows:

(1) Charge 1, 16 months;

(2) Charge 2, 20 months;

(3) Charge 3, 28 months;

(4) Charge 4, 20 months;

(5) Charge 5, 4 months;

(6) Charge 6 to Charge 11, each 8 months.

45.  Having regard to totality, I am of the view that a notional overall starting point of 4½ years is appropriate to reflect the nature and seriousness of the whole matter.

46.  To give effect to that and having regard to the one-third discount I find the defendant is entitled to, I order:

(1) the sentences imposed on Charge 2 to Charge 11 be concurrent; and

(2) 8 months of the sentence imposed on Charge 1 to run consecutively to the rest of the sentences.