HKSAR v. YEUNG SZE LING (also known as YONG KAM LING)

DCCC 1162/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1162 OF 2016

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REASONS FOR SENTENCE

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Charges

1.  The defendant is charged that in breach of trust of her employer, she stole from the employer about HK$2 million, contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong.

2.  Particulars of the charge are: the defendant between the 30th day of June, 2011, and the 1st day of April, 2015, both dates inclusive, in Hong Kong, stole a total sum of 2,017,000 Hong Kong currency, property belonging to ARTAL Cosmetic Company Limited trading as ADAKA & Company.

Fact

3.  As a matter of fact, the defendant was employed as an Administrative Assistant by this apparently small cosmetic company.  She was in charge of the monthly payroll preparation.  She prepared the monthly payroll statements for the employer to approve.  Upon approval, salary would be transferred from the company’s bank account to the right employee’s personal bank account.

4.  Over the four years (2011 to 2015), without the employer knowing, the defendant had falsified the monthly statements so that the employer had overpaid her bank account for about $2 million. 

5.  Towards the last year of her wrongdoing, she even included her brother’s name into the statement so that the employer paid this fictitious employee’s bank account too.  She then asked her brother for the return of the proceeds. By now she had used all $2 million for her family expenditure and on her mother’s private hospital bill.

6.  In 2015, the bank spotted the irregularities in the account and informed the employer accordingly.  Defendant’s misdeeds were uncovered.  Report was made to the police.  The defendant frankly admitted her guilt to the authority.

Mitigation

7.  The defendant has one theft conviction when she was young in year 1998, that is 20 years ago, when she was put on probation.  She is now 36 years old, married but separated since year 2010.  She used to live with her two young daughters, aged 6 and 9.  Now, she wants to finish her sentence earlier so that she can go back to take care of the two daughters as soon as possible.  She then, on the plea day, asked for the revocation of her bail and it was so ordered.  Since then, she was being detained.  Now, the two daughters are being taken care of by the father together with the helper. 

Authority

8.  Ng Kwok Wing CACC 398/2007 states that stealing 1 to 3 million dollars in breach of trust results in approximately 3 to 5 years’ imprisonment. 

9.  In assessing the sentence, Barrick [1995] 81 Cr App R states that the following matters be taken into account:-

(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 upon 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; or where, as happens, there has been a long delay, say, over 2 years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

10.  Lee Lai Kit Kitty CACC 379/2008 is a case where an accounting clerk in breach of trust of her employer wrongly transferred from the company bank account to a third party bank account a single sum of about HK$2 million (US$256,819.29).  The trial judge adopted a starting point of 42 months’ imprisonment.  The Court of Appeal reduced it to 34 months because:-

(1) the employer was almost fully repaid (albeit by the third party but not by the defendant), the employer thus suffered less loss;

(2) it was a single act of wrongdoing.

Consideration

11.  Here the employer still suffers a great loss; there is no practical plan offered to the employer as compensation; the wrongdoing spanned over 4 years and was committed at almost every month; even sibling’s identity and bank accounts were used; the proceeds all went to defendant’s family daily expenses and her mother’s medical bills. 

Conclusion

12.  This court adopts 36 months’ imprisonment as a starting point.  Full one-third discount is given to her timely plea.  Her sentence today is therefore 24 months’ imprisonment.

13.  About compensation, this is trite law that if it is not practical for and is not affordable by the defendant, the court should not order compensation because to do so may have to compel the defendant after discharge from prison to redo the wrongdoing.  Of course I am sure the prosecution would remind the victim, the company, the employer in the case to apply for civil proceedings if they think it desirable.