HKSAR v. LUI YU ON

DCCC 389/2020

[2021] HKDC 1067

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 389 OF 2020

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REASONS FOR SENTENCE

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1.  Mr Lui pleaded guilty before me to 4 charges on an Amended Charge Sheet as follows.

2.  Charge 1 is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that he, between 7 and 17 August 2018, both dates inclusive, in Hong Kong, stole choses in action, namely debts in a total sum of $546,000 Hong Kong currency owed by The Hongkong and Shanghai Banking Corporation Limited (“HSBC”)  in account numbered 026-415877-838 to WISETOP CONSULTANTS LIMITED (“Wisetop”), property belonging to Wisetop.

3.  Charge 2 is also Theft.  Particulars are that he, on 23 August 2018, in Hong Kong, stole choses in action, namely debts in a total sum of $100,000 Hong Kong currency owed by HSBC in account numbered 026-415877-838 to Wisetop, property belonging to Wisetop.

4.  Charge 3 is Attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200. Particulars are that he, on 24 August 2018, in Hong Kong, attempted to steal choses in action, namely debts in a total sum of $176,500 Hong Kong currency owed by HSBC in account numbered 026-415877-838 to Wisetop, property belonging to Wisetop.

5.  Charge 4 is Forgery, contrary to section 71 of the Crimes Ordinance, Cap 200.  Particulars are that he, on 25 August 2018, in Hong Kong, made false instruments, namely 5 cheques numbered 886979, 886980, 886981, 886983 and 886984 respectively all drawn from the bank account of Wisetop at HSBC, by forging the signature of Tsui Lok Lam, Rachel, as signatory of the said bank account, with the intention that he should use them to induce somebody to accept them as genuine, and by reason of so accepting them, to do or not to do some act, to his own or any other person’s prejudice.

Facts admitted by Mr Lui

6.  Ms Tsui Lok Lam, Rachel, incorporated WiseTop Consultants Limited (“Wisetop”)  in 2002.  Ms Wu was employed as a clerk of Wisetop.  Mr Lui was employed as a customer service consultant of Wisetop since February 2013.  Mr Lui had a key card and 5 keys which could gain access to Wisetop.

7.  Ms Tsui was the only authorized signatory of the Office Account at HSBC.  Two of the related cheque books were kept by Ms Tsui in a cupboard in her room while 3 other cheque books were kept by Ms Wu in a drawer next to her workstation.

8.  On 24 August 2018, Ms Tsui discovered that between 7 and 23 August 2018, there were 16 suspicious cheque withdrawals.  She then transferred the remaining balance in the current account to another account.

9.  On the same day, Ms Wu discovered 5 cheques were missing from one of the 3 cheque books (“Cheque Book W”)  kept by her.

10.  On 25 August 2018, a Saturday, at around 9 am, Ms Wu saw Mr Lui in office when she returned to work.  Mr Lui should have been on sick leave.

11.  At about 10 am, Ms Wu discovered that 7 other cheques from Cheque Book W went missing.  She reported the same to Ms Tsui who then discovered that the two cheque books kept by her were also missing and that there were three attempted withdrawals by cheques from the Office Account.  Police report was made.

Arrest and Charge 4

12.  In the evening of the same day, police arrested Mr Lui at his residence.  Under caution, Mr Lui said he obtained cheques from the office in the morning.  Police found 5 cheques of the Office Account each of which bore a purported signature of “Rachel”.

13.  Ms Tsui later confirmed that she had not signed these 5 cheques.

Charge 1

14.  Investigation revealed that 14 cheques from the Office Account to the total amount of $546,000 were deposited into Mr Lui’s bank accounts with the Bank of China (HK)  Limited (“BOC”)  between 7 and 17 August 2018.

Charge 2

15.  Investigation revealed that on 23 August 2018, two other cheques from the Office Account to the total amount of $100,000 were deposited into the BOC accounts of Mr Lui.

Charge 3

16.  Investigation revealed that on 24 August 2018, two cheques from the Office Account were sought to be deposited into one of the BOC accounts of Mr Lui; and one other cheque from the Office Account was sought to be deposited into Ms Tsui’s personal bank account.  The latter was for paying Mr Lui’s debt owed to Ms Tsui.  These attempted withdrawals of a total amount of $176,500 from the Office Account were unsuccessful because there were insufficient funds in the current account.

Video Recorded Interview

17.  In the small hours of the day following the day of arrest, Mr Lui disclosed in a cautioned VRI the following:-

(a)  On 7 August 2018, he stole two cheque books from the drawer of Ms Tsui’s office;

(b)  He committed Charge 1 by using the cheques stolen on 7 August 2018;

(c)  On 8 August 2018, he took away 5 cheques from Cheque Book W kept by Ms Wu;

(d)  He committed Charges 2 & 3 by using these 5 cheques;

(e)  On 25 August 2018 (Saturday), he took away 7 other cheques from Cheque Book W;

(f)  He chose to return to office on a Saturday as there should have been no one there;

(g)  He forged the signatures on the cheques; and

(h)  He needed money and had spent every penny successfully stolen.

Criminal record

18.  Mr Lui has 23 previous theft convictions collected through one court attendance in September 2010.  A term of 38 months’ imprisonment was handed down after trial: DCCC 1444/2009 refers.

Antecedents

19.  Mr Lui is aged 41 (38 at the time of the offences), educated to secondary 6 level.  His occupation before remand was customer service supervisor.  Prior to being remanded into custody, Mr Lui lived with his parents, wife and son in Tai Po.

Mitigation

20.  Mr Francis Yip of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lui.

21.  The following is a summary of the mitigation submissions.

22.  After Mr Lui finished F6 in Hong Kong, he went to Scotland and obtained a Higher Diploma in Computer Studies in about 2000.  He is married and has a 3-year-old son.  His wife is a manager of a construction company earning $38,000 a month but then she has to support her own retired parents.  Mr Lui’s aged parents are also retirees and depend on Mr Lui and his wife.

23.  Prior to arrest, Mr Lui worked in the victim company earning $26,000 per month.

24.  Mr Lui’s date of last discharge from prison was 30 April 2012.  He started working for the victim company since 2013.

25.  Mr Lui committed the present offences because he needed money to settle a dispute with some undesirable characters.  Sometime after arrest, in October 2018, Mr Lui attempted suicide but was saved; as a result, he was admitted to the psychiatric ward of Tai Po Hospital for less than a month and the diagnosis was moderate depressive episode.

26.  The background of the offences involved breach of trust.  Mr Yip referred to HKSAR v Cheung Mee Kiu [2008] 1 HKC 113 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 and submitted that for theft of $250,000 to $1M, the starting point is 2 to 3 years.

27.  Mr Yip acknowledged that forging the signature of Ms Tsui on the stolen cheques was a key element underlying all offences and submitted that forgery is part and parcel of the overall transactions.  He therefore submitted that the sentence for Charge 4 should be made concurrent with sentences for the other charges.

28.  Mr Yip outlined the procedural history of how this case was initially listed for trial before me.

29.  In mid-2020, legal aid was granted to Mr Lui subject to payment of $90,000 to $100,000 contribution.  Mr Lui was unable to pay that sum.  So legal aid was withdrawn.

30.  On 4 February 2021, Mr Lui appeared before Judge Dufton unrepresented for mention (it should be for plea).  He allegedly told the court he wanted to plead guilty but wanted adjournment to engage lawyer for legal advice.  He did not understand why there were so many charges and did not know the possible discount for a timely plea so he chose the easy way out by pleading not guilty to all charges before the judge.  After the case was set down for trial, he successfully re-applied for legal aid.

31.  On 22 April 2021, Mr Lui had given written instructions to his then assigned solicitor that he would plead guilty to all 4 charges.  However, neither the prosecution nor the court was informed of it.  When former assigned counsel visited Mr Lui in Stanley Prison in early August 2021, it was found that the prosecution and court had not been informed of Mr Lui’s intended guilty pleas.

32.  Because of the foregoing, Mr Lui wishes the court to give him the full 1/3 discount or alternatively the maximum possible discount for his pleas of guilty.

33.  Mr Yip reminded the court to consider the totality principle.

Sentence

34.  This case involves breach of trust towards the employer and encompasses multiple offences that occurred on different dates.

35.  This is the second time Mr Lui committed thefts with a breach of trust overtones: DCCC 1444/2009 refers.  This is an aggravating factor.

36.  The present offences happened all in August 2018 and spanned 18 days. Although Charge 4 was not one of theft, but was one of forgery, I feel able to take a global view of the matter.  The reason is that the forgery was no doubt an act preceding what would, if unstopped, become an attempted theft later.

37.  The total amount of the first 3 charges came to $822,500.  The amount of Charge 4 is unknown because the amount entries on the 5 cheques have been left blank (so the prosecution told me).  I will adopt 3 years’ imprisonment as the global starting point after taking into account totality.

38.  Although Mr Lui had in the plea court and before Judge Dufton indicated pleas of guilty, the latter on a day fixed for plea and sentence.  However, when pleas were actually taken from Mr Lui after his application for an adjournment failed, he pleaded not guilty to the charges resulting in trial days being fixed before me.  The court and prosecution were not informed of Mr Lui’s intended change of plea until 4 August 2021.  I cannot give Mr Lui the full 1/3 discount.  I will instead give him a ¼ discount.  There are no other mitigating factors of sufficient weight to justify any other reduction in sentence.

39.  I will impose the following individual sentences.

(Mr Lui, please stand)

40.  For Charge 1, I will adopt a starting point of 28 months; the sentence after discount is 21 months.

41.  For Charge 2, I will adopt a starting point of 12 months; the sentence after discount is 9 months.

42.  For Charge 3, I will adopt a starting point of 16 months; the sentence after discount is 12 months.

43.  For Charge 4, I will adopt a starting point of 12 months; the sentence after discount is 9 months.

44.  I order that 2 months of the sentence on Charge 2, 3 months of the sentence on Charge 3, and 1 month of the sentence on Charge 4 are to run consecutively among themselves and the result is to run consecutively to the sentence on Charge 1, making an aggregate sentence of 27 months’ imprisonment.