HKSAR v. PAU YIN MING

DCCC1082/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1082 OF 2011

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Reasons for Sentence

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1.  The defendant had pleaded guilty to two charges of theft. The third and the fourth charges are now left in court file and ordered by this court not to be proceeded with without the leave of the court.

2.  As to the 1st charge, the total amount is HK$66,150. The 2nd charge, the amount is HK$1,042,935.35. 

The facts of the case

3.  The defendant was employed by K Y Lo & Co., Solicitors as a sales manager since September 2010.  His daily duty was to handle property transactions.  The monies received from the client were then deposited into the two accounts of the firm:-

(1) Hongkong Bank, and the other is;

(2) Hang Seng Bank.

4.  Whenever the defendant had to make payment to others out of a client’s account, the defendant had to file a payment voucher to the manager of the firm before issue cheques to him.

5.  On 16 May 2011, the manager of the firm received a complaint from a client for his failure to receive the outstanding payment after completion of sale of his property.  The manager of the firm confronted the defendant and he admitted that he had stolen the client’s money.

6.  A report was then made to the police.

7.  Upon further checking, suspicious transactions were found in eight clients’ accounts.

8.  A total of 16 cheques were issued to Tsang Shuk-yi and one cheque was issued to Iu Tuet-sau.  Neither of them were clients of the firm.

9.  The manager also found out that the defendant had filled in false particulars in the vouchers to deceive her in order to issue the cheques for payment.

10.  Under caution, the defendant admitted that the total amount being stolen from the Hongkong Bank was $66,150 and the total amount stolen from Hang Seng Bank was $1,042,935.35. 

11.  In mitigation, I am told that the defendant is a man of good character, he is 43, has a 17 months daughter from his second marriage and a 12 year old son from the first marriage.  After his graduation from school in 1985, he started to work in various solicitors firms.  He continued to enhance himself by further studies.  He moved from a messenger to become a legal clerk and eventually headed the Conveyancing Department.

12.  In 1998, the defendant had suffered financial difficulties because of the 1997 economic downturn and he eventually went bankrupt in 2001.  This time he committed the present offences because he lost his investment in the stock market in 2008.

13.  He started to work in K Y Lo & Co. since September 2010, he started to commit the present two offences in November 2010. The solicitors’ firm found out this incident in May 2011 and the two offences cover a period of 6 months.  The amount for the two offences was about $1 million. 

14.  The prosecution has to lay two charges against him because of the two clients’ accounts involved in his employer’s company.  I am further told that the prospect of restitution is unlikely. 

15.  There is no doubt that this is a case of breach of trust, and indeed a very serious one as the defendant knew how to manipulate the payment from his employer to his wife’s account, and that is Madam Tsang. I am told today as his wife has no knowledge of the transactions and therefore she was not charged.

16.  In HKSAR v Cheung Mei Kiu CACC99/2006, the Court of Appeal gave guidelines on the appropriate range of sentence for theft which is based on the amount involved: 

$1 million to $3 million	3 to 4 years
$250,000 to $1 million	2 to 3 years
Less than $250,000	Less than 2 years

17.  In HKSAR v Ng Kwok Wing CACC398/2007, the Court of Appeal had adjusted the second and third bands of Cheung Mei Kiu’s sentence as follows: 

$3 million to $50 million	5 to 10 years
$1 million to $3 million	3 to 5 years

18.  Having considered the mitigation and the fact that the defendant had pleaded guilty to the two charges, the amount of the 2nd charge fall into the sentencing bracket of 3 to 5 years.  I adopt a starting point of 6 months for the 1st charge and reduce it to 4 months to reflect his guilty plea.  As to the 2nd charge, I adopt a starting point of 3 years and reduce it to 2 years to reflect the defendant’s guilty plea, both sentences to run concurrently, and that is 2 years.      

19.  In mitigation, I am also told that the defendant had clearly expressed himself the intention to plead guilty at the earliest opportunity and had saved the police about one month’s time to write out the transcript of the 3½ hours of the record of interview.  Also, it also saved the banks to provide two further bankers’ affirmations. 

20.  To this, the defendant is entitled to his credit and I am prepared to reduce a further 2 months for his full cooperation to the police.

21.  He also contributed his spare time in voluntary work, as exhibited in various certificates and photo.  I further reduce a month for that and the total sentence arrives at 21 months.