HKSAR v. CHUNG WING PUI

HCCC 303/2020

[2021] HKCFI 842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 303 OF 2020

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REASONS FOR SENTENCE

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Reasons for sentence

1.  The defendant pleaded guilty to one count of theft before Magistrate Mr Cheang Kei-hong, admitted to the summary of facts, and was committed to the Court of First Instance for sentence.

Summary of facts

2.  The defendant was employed as Accounting Supervisor of Sun Light Travel Services Limited in March 2015.  Since his superior, Accounting Manager Ms Ho spent a lot of time working outside Hong Kong, she would leave with the defendant cheques that she had signed so that the defendant could fill in the payee and payable amount and issue them for the company’s day to day financial operation.

3.  In July 2016, Ms Ho requested the defendant to submit company accounting records for the period April 2015 to March 2016.  The defendant failed to do so and did not show up for work on 21 September 2016.

4.  That same day, the defendant surrendered himself at Central Police Station and admitted to stealing from the company approximately 50 cheques amounting to HK$7 million between May 2015 and September 2016.

5.  The defendant told the Police that he deposited the money into his HSBC bank account and that he had gambled the money away.

6.  In the subsequent video recorded interviews, the defendant explained how he put his own name as the payee on the pre-signed cheques and putting figures between $100,000 and $300,000 and then deposited them into his bank accounts.  He would then either make online transfers or cash withdrawals and deposit the money into his gambling account.  The money was spent betting on football, horse-racing as well as at casinos in Macau.

7.  Upon verifying of company records, Ms Ho confirmed that between 17 June 2015 and 7 September 2016, the defendant had stolen a total of HK$10,950,000 from the company’s Hang Seng Bank account by way of 50 cheques with the defendant as the payee.

8.  Police investigation confirmed that the defendant had deposited the said stolen money into his two HSBC accounts.

Previous conviction

9.  The defendant is of previously clear record.

Mitigation

10.  The defendant is 40 years old, born and educated in Hong Kong.  He holds a Higher Diploma in Accounting.  The defendant is married and lives with his wife and two daughters.  He was the family’s sole financial support.

11.  The defendant fell into the habit of gambling.  He lost money and tried to use the money he stole to win it back.  It did not work and when he realized that he would never be able to repay the company the money he took, he surrendered himself to the Police.

12.  According to Ms Chow’s submissions, the defendant’s original intention was to take $200,000 to $300,000 of the company’s money to gamble. Once he collected the winnings, he would repay the full amount.  It did not work out that way and he had lost all the money.

13.  Ms Chow told the court that during the time that the defendant was granted bail pending trial, he never gave up and managed to find work at a corporate advisory services company.

14.  In the letter written by Mr To of the company, he speaks highly of the defendant’s work ethics, his vast experience and the contribution he was able to make in the 9-month period that he was working for them.  The defendant was frank with them and Mr To is of the view that the defendant still has a lot to give back to society.

15.  I was informed that between June 2011 and December 2016, the defendant was also working as an accountant for another company, going in on weekends.  Ms Mak of that company also wrote in mitigation.  Ms Mak describes the defendant as an efficient and dedicated employee with a quiet disposition.  She was surprised but sympathetic when the defendant confessed to the theft of the company’s money.  She believes that the defendant can still be a positive contributor to society after serving his sentence.

16.  The defendant’s wife and the headmistress and social worker of his daughter’s school all wrote in mitigation, seeking leniency.

17.  Ms Chow referred to the Court of First Instance sentencing case of HKSAR v Shek Oi-ming [2019] HKCFI 2035; HCCC 25/2019 where the defendant pleaded guilty to two counts of theft and one count of fraud.  The total stolen amount was around $10.35 million.

18.  Similar to the present case, there the defendant was an accounting clerk and stole from his employer by way of forging signatures on company cheques.  The defendant was sentenced to a total of six years’ imprisonment after plea.

19.  It is Ms Chow’s submissions that the facts in Shek Oi-ming are more serious in that the theft there took place over a period of four years, and that the stealing involved deceit and misrepresentation, and suggested that this court should impose a lower sentence.

Sentence

20.  The maximum sentence on conviction upon indictment for the offence of theft is that of 10 years’ imprisonment.

21.  Ms Chow accepts that there is a breach of trust element in the defendant’s commission of the offence.

22.  In cases where the commission of the theft involve the element of breach of trust reposed in the perpetrator, the Court of Appeal has laid down sentencing guidelines in the case of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, as clarified in the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.

23.  For amount of $3 to $15 million, the applicable band of sentence is that of 5 to 10 years’ imprisonment.  An arithmetic application of the tariff to the $10.95 million in this case would lead to a starting point of 99 months.

24.  It is trite law that when sentencing in breach of trust cases, the court should take into consideration the following matters[1]:

“(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 perpetuated;

(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 the public confidence;

(6)  the effect upon fellow employees or partners;

(7)  the effect on the offender himself or herself;

(8)  the offender’s own history;

(9)  those matters of mitigation special to the defendant such as illness, being placed under great strain by excessive responsibility, or any delay between his being confronted with his dishonesty by his professional body or the police at the start of the proceedings; and

(10)  any help given to the police.”

25.  I have taken the following matters into consideration when deciding on the starting point.

26.  The defendant was the only person tasked with the issuance of the pre-signed cheques, indicating a high degree of trust reposed in him.  The theft took place over a period of around two years, which is by no means a short time.  The money stolen had all been gambled away, unlike in the case of Shek Oi-ming where the stealing was to cover the losses of the defendant’s own failed business.

27.  On the other hand, there is no evidence to suggest that the victim company suffered too much from the theft.  Nor is there evidence of impact on the public or fellow employees or partners.  As a result of his surrendering to the Police, the defendant had lost his jobs.

28.  The defendant did not give up and was able to find work with a new employer while awaiting the disposal of his case.  This I find a very strong mitigating factor and an indicator that the defendant is adamant in his rehabilitation and determined to continue to provide for his family.  I would agree with his former employers that the defendant still has a lot to offer society upon his release.  The fact that the defendant had surrendered to the Police is another mitigating factor.  Although the defendant was the only person who could have issued those cheques and his theft would inevitably have come to light upon the examination of company accounts, the court recognizes that the defendant’s surrendering is a sign of his remorse.

29.  Having considered the above matters, bearing in mind the sentencing tariffs, I find that a proper starting point is that of 90 months’ imprisonment.

30.  The defendant is granted the full one-third discount for his timely plea of guilty, resulting in a sentence of 60 months’ imprisonment after plea.

31.  The final sentence is, therefore, 60 months’ imprisonment.