HKSAR v. LAM MEI SZE

DCCC 840/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.840 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of theft. Particulars are that she between a day in mid-January 2011 and 22^nd June 2011 stole a total sum of HK$433,800.

Facts

2.  The defendant was a property agent working for Ricacorp and the victim, Mr. Anwar, was one of the defendant’s clients at all material times.

3.  Some time in mid-January 2011, Mr. Anwar handed over to the defendant at her office $65,000 cash and a check of $135,000 as deposit for the future purchase of a property which was not yet open for sale that the defendant had introduced Mr. Anwar to earlier.

4.  According to bank records, the said check of $135,000 was deposited into the defendant’s Hang Seng Bank account on 24^th January 2011. A supposed receipt was given by the defendant to Mr. Anwar, causing him to believe that the said $200,000 was being applied as deposit for the purchase of the property.

5.  About 2 months later, the defendant told Mr. Anwar that the property was open for sale and suggested for him to purchase Flat F, 15^th floor, Block 6 of the development named “The Latitude” at the price of $4,338,000 [“the property”].

6.  Mr. Anwar agreed and suggested to go to the defendant’s office to complete the paper work and pay the balance of the deposit. The defendant claimed that she was very busy and said that she will go to Mr. Anwar’s home instead.

7.  Eventually, on 23^rd May 2011, the defendant visited Mr. Anwar’s home. Mr. Anwar handed over to the defendant 2 checks in the total amount of $233,800, which was supposed to be payment of the balance of the 10% purchase price ($433,800) deposit for the flat.

8.  One of the two checks in the amount of $16,900 was deposited into the defendant’s Hang Seng Bank account on 23^rd May 2011, while the other in the amount of $216,900 was deposited into the same account on 22^nd June 2011.

9.  On 11^th July 2011, the defendant sent a copy of a supposed provisional sales and purchase agreement with the company chop of Ricacorp to Mr. Anwar via email.

10.  On 11^th August 2011, the defendant provided a supposed formal agreement for Mr. Anwar to sign. The agreement was however without the company chop of the property developer and Mr. Anwar asked the defendant to return the agreement to have it properly chopped.

11.  The defendant brought the supposedly properly chopped agreement back to Mr. Anwar a few days later. Mr. Anwar was thus being led to believe that he was the owner of the property.

12.  This however was not true. On 2^nd January 2012, Mr. Anwar visited the office of Ricacorp and found out that he was not the registered owner of the property. Mr. Anwar brought along all the documents given to him by the defendant and visited the head office of Ricacorp 2 days later and a title search confirmed that someone else was the registered owner of the property and not Mr. Anwar.

13.  Upon investigation, it transpired that the agreements were forged documents. Mr. Anwar reported the matter to the Police on 5^th January 2012 and the defendant was arrested on the same day.

14.  Under caution, the defendant admitted that she deceived Mr. Anwar out of greed.

Previous convictions

15.  The defendant is of previously clear record.

Mitigation

16.  The defendant is 37 years old. She was educated up to Form 5 level in Hong Kong. She is separated with her husband, her son lives with her husband in Hong Kong. She was working as a real estate agent prior to her arrest.

17.  Mr. Clarke for the defendant pointed out that the defendant admitted her guilt at the earliest opportunity when she was arrested. The defendant is also willing to compensate Mr. Anwar but she is unable to do a full restitution. All that she can offer is roughly $20,000. The defendant is unable to allow compensation out of her bail money because that was borrowed from her friend and had to be repaid. Nevertheless, the defendant promises to make payment upon release from custody and after she found a job.

18.  Mr. Clarke also pointed out that the defendant will lose her license as an estate agent in Hong Kong as a result of this conviction and will be unable to pursue her chosen career again, which in itself is a form of punishment.

19.  The defendant has to support 2 households and a son and had incurred debts as a result. It is Mr. Clarke’s instructions that the defendant used the money she had stolen to repay her debts to friends and finance companies. The most substantial part went towards the payment of tax owed to the HKSAR government.

20.  There is no evidence to suggest that this is a case of the defendant indulging herself in luxury with the money stolen from the victim.

Sentencing Guidelines

21.  Mr. Clarke for the defendant very helpfully prepared a written submission on the relevant sentencing authorities.

22.  Mr. Clarke conceded that this is a breach of trust case and that the sentencing guidelines in the case of HKSAR v Cheung Mee Kiu, CACC 99/2006 applies. At $433,800, the amount involved falls within the “$250,000 to $1 million” band and should attract a sentence of between 2 to 3 years.

23.  Mr. Clarke then referred to the case of R v Barrick as adopted by the Hong Kong Court of Appeal in R v Ying Lai Chau, CACC 559/1989 and HKSAR v Lee Kwok Ho Gary, CACC 210/2010, and set out the factors to be considered when sentencing in breach of trust cases. These factors will be dealt with below.

Sentence

24.  The maximum sentence for theft is that of 10 years’ imprisonment.

Breach of Trust

25.  In the case of HKSAR v Sim Ka Wing, CACC 450/2000, Keith JA said this,

“Breach of trust is, of course, regarded as an aggravating feature in cases of dishonesty. But it is so regarded because the offender will have abused the trust reposed in him. That trust may have involved an employer being entrusted with his employer’s money or valuables, or being placed by his employer in a position whereby the dishonest employee could defraud his employer or his employer’s customers or clients (my emphasis). The point is that the offender is, to use the words of Lord Lane CJ in Barrick (1985) 7 Cr App R (S) 142, in a ‘privileged and trusted’ position. It is that position of privilege and trust that he abuses.”

26.  In that case the Court of Appeal found that an employee of a restaurant who returned with tools and the intention to break open the safe to steal did not amount to a ‘breach of trust’ situation. The applicant was not in a privileged and trusted position, he merely exploited the knowledge he gained of the geography of the restaurant whilst working there. The situation would be different if he was trusted with holding the key to the safe and he stole from it.

27.  In our present case, the defendant was in a ‘privileged and trusted’ position in that she was allowed to deal with clients of Ricacorp, and she did deal with the victim on a previous occasion, to purchase property, handling payments which were supposed to be made through or to the company. The company trusted her not to run away with the money of the company’s clients.

28.  I find therefore that what the defendant had done in the commission of the present theft did amount to a breach of trust of her position as the company’s agent. Furthermore, estate agents in Hong Kong are now governed by a licensing system under the Estate Agent Ordinance, Cap. 511, putting estate agents in a position akin to other professional people, thus rendering the defendant’s breach more serious.

The Barrick factors

29.  The defendant stole the first $200,000 in mid-January 2011 when the property was yet to be on open sale. The next stealing was committed in May and June 2011. The defendant did not do anything to remedy the situation between January and May 2011 but rather waited for about 4 months to steal again. She clearly had premeditation in committing the thefts.

30.  I was told that the defendant had used the stolen money to repay her debts and to pay her tax bill. It was therefore not the case that she used the money to support a luxurious lifestyle.

31.  I was told by the prosecution that as a result of the theft Mr. Anwar is only left with savings of around $50,000. The effect of the theft on Mr. Anwar is therefore quite serious in that almost 90% of his previous savings had been stolen by the defendant.

32.  The role of the estate agent in Hong Kong is important and special. Estate agents can become very close with their clients, gaining their trust. What the defendant did would have put a dent in the public’s confidence of property agents in Hong Kong overall.

33.  What the defendant did would have caused her fellow employees to be more aware of the power they have and that they should not abuse that power or trust that the company and the clients had placed in them.

34.  I was told that the defendant will lose her estate agent license as a result of her conviction and that her chance of re-offending is therefore minimal.

Restitution?

35.  Mr. Clarke did mention that the defendant was willing to compensate Mr. Anwar. That willingness is however not supported by any ability to do so since all the money had been spent and she no longer holds a job.

36.  A mere offer to make restitution by an accused who has no money to back it up will not assist his mitigation: HKSAR v Chan Kin, CACC 126/2005. In this case, the applicant was ordered to use the bail money to pay a compensation order made by the trial judge. This amounted to only one-tenth of the loss of the victim.

37.  Mr. Justice Lugar-Mawson in considering whether credit should be given for the payment of the compensation order said this,

“18. ….. we do not agree that the Applicant is entitled to a further reduction in his sentence because he was willing to make restitution to the digger’s owner. The plain fact of the matter is that given his impecunious circumstances this was an empty offer. He had no money from which he could make payment. The sum of $5,000 compensation awarded against him is only one-tenth of the sum the Applicant received for the digger and in no way represents its value.

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20. In this case there was only the empty promise of restitution followed by a forced payment of a wholly inadequate amount. To our minds that does not entitle the Applicant to a further reduction in his sentence over and above the reduction he received for his guilty plea.”

Starting point

38.  The amount of money stolen is not insubstantial. The sentence must carry with it a message of deterrence to any estate agent who might be tempted to abuse the trust reposed in them by their employers and their clients. Having considered all the above factors, I find that a proper starting point in the defendant’s case is that of 30 months’ imprisonment.

39.  Since the defendant pleaded guilty, the sentence is discounted to that of 20 months’ imprisonment.

40.  I further order the defendant to pay compensation to Mr. Anwar in the sum of $20,000, to be deducted from bail.