HKSAR v. CHAN KA PO, POPO

DCCC 973/2020

[2021] HKDC 92

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 973 OF 2020

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of fraud, contrary to section 16A of the Theft Ordinance[1] and thirteen charges of theft, contrary to section 9 of the Theft Ordinance.

2.  Full details of the offences are set out in the amended summary of facts admitted by the defendant today.  In summary the defendant was employed by Lingma Construction & Engineering Ltd (“Lingma”) as the Human Resources Officer responsible for handling the payroll of workers and arranging wage payment for infrastructure projects. 

Charge 1 - Fraud

3.  Between 1 August 2017 and 6 August 2018 the defendant made ninety-five false entries into the Autopay System of Lingma in relation to forty workers, purportedly showing the workers were entitled to payment.  The defendant changed the account numbers of the workers to her own HSBC accounts. 

4.  The defendant then presented the bank documents to the directors for approval.  Believing the details were accurate the directors approved the payments.  As a result, the defendant defrauded Lingma of $2,564,778.55 which was paid into her HSBC accounts[2].

Charges 2-14 - theft

5.  When the directors were not in Hong Kong they would sign blank uncrossed cheques in advance and pass them to the defendant for the payment of workers’ wages during their absence. 

6.  On thirteen occasions between 7 August 2017 and 6 August 2018 the defendant used twenty-four cheques to misappropriate a total of $597,124.48 by falsely representing the cheques were for payment of wages and then depositing the cheques into her HSBC accounts or encashed the cheques[3].

7.  When the defendant was on leave the office manager of Lingma discovered the defendant had changed the payroll account numbers of forty workers to three personal accounts of the defendant held with HSBC. 

8.  The defendant was arrested on 19 August 2019.  Under caution the defendant admitted, inter alia, falsifying bank documents to induce Lingma to pay purported wages into her HSBC accounts; depositing or encashing the twenty-four cheques and that she had used all the monies obtained to meet her personal expenses, including the purchase of private cars. 

Mitigation

9.  In passing sentence, I have carefully considered the oral and written submissions of Mr Choi, including that the defendant, aged 31, is divorced and has a son aged 2[4]. 

10.  I have read the defendant’s mitigation letter in which she expresses her remorse and asks for leniency so she can have an early reunion with her son.

11.  I have also read the mitigation letters written by the defendant’s mother and younger sister, who ask for leniency so that the defendant may continue to look after her son.  The defendant’s younger sister, aunt, family members of her ex-husband and a social worker are in court today to lend their support to the defendant. 

12.  I take into account the defendant has no previous convictions.  This must however be viewed in context that the offences were committed over a period of one year. 

Guidelines

13.  In passing sentence, I have considered the principles laid down in R v Clark[5] as applied inHKSAR v Cheung Mee Kiu[6] as adjusted in HKSAR v Ng Kwok Wing[7].

14.  The guidelines state the proper starting point after trial where the amount stolen is less than $250,000 is 2 years’ imprisonment or below; where the amount stolen is between $250,000 and $1 million is 2-3 years’ imprisonment; where the amount stolen was between $1-3 million is 3-5 years’ imprisonment and where the amount stolen is between $3-15 million is 5-10 years’ imprisonment.

15.  In determining the sentence the following matters are to be considered: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the theft was perpetrated; (iii) the use to which the money dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect upon fellow-employees or partners; (vii) the effect on the offender; (viii) the offender’s own history and (ix) those matters of mitigation special to the offender such as illness; being placed under great strain or where there has been a long delay[8]. 

16.  Mr Choi submits the defendant committed the offences out of stupidity and despair in order to help her husband’s business and at a time when the defendant was suffering from a major depressive disorder due to the breakdown of the marriage[9]. 

17.  In her mitigation letter the defendant states that her ex-husband asked for money one month after they were married in November 2017 whereas the defendant started stealing her employer’s money in August 2017 before the marriage.   Mr Choi clarified in court that the ex-husband first started asking for money before they were married and that after the marriage the request for money increased in intensity.

18.  The defendant told the ICAC that the money was used to meet her personal expenses, for example financing the purchase of private cars[10].  In oral submission Mr Choi said the defendant did not live an extravagant lifestyle and that all the money went to finance the ex-husband’s business, including the purchase of a new series 6 BMW for $800,000.   

19.  When the court sought clarification about this purchase Mr Choi informed the court the defendant told the ICAC the money was used to buy three BMWs, two second hand BMWs and the new BMW.  The new BMW was clearly a luxury item and not necessary for the running of a second-hand car business. 

20.  Mr Choi told the court the defendant was not asked by the ICAC about how she spent the remaining money stolen.  Ms Lee informed the court that the defendant also told the ICAC that the money stolen was used to go on a trip, to purchase meals and clothing and for the celebration of her son’s one-month birthday.  Mr Choi says the defendant went to Bangkok.  The money stolen was clearly not just for her helping her ex-husband’s business. 

21.  Taking into account the position of the defendant being responsible for the payroll of workers; over a period of one year the defendant defrauded Lingma of $2,564,778.55 and stole $597,124.48; the use to which the stolen money was put; the clear record of the defendant and that there has been no restitution[11], I am satisfied the proper starting point for charge 1 is 4 years and 6 months’ imprisonment and the starting point for each of charges 2-6 and 8-11 where the amounts varied between $7,752.79 and $38,502 is 6 months’ imprisonment; on charges 7, 12 and 14 where the sums stolen were $60,538.89; $58,222 and $80,598.94 is 9 months’ imprisonment and for charge 13 where the sum stolen was $199,231.69 is 18 months’ imprisonment.

22.  Giving the defendant full credit for her pleas of guilty reduces the sentence on charge 1 to 3 years’ imprisonment; on charges 2-6 and 8-11 to 4 months’ imprisonment; on charges 7, 12 and 14 to 6 months’ imprisonment and on charge 13 to 12 months’ imprisonment.  

Totality

23.  The total amount obtained by the defendant was $3,161,903.03.  I am satisfied a total sentence after plea of 3 years and 4 months’ imprisonment properly reflects the defendant’s criminality on the fourteen charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[12].  

Delay

24.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[13].

25.  Lingma discovered the defendant’s dishonesty when she was on maternity leave and reported the case to the ICAC in September 2018.   When the defendant reported for duty on 20 October 2018 she was summarily dismissed[14].  The defendant was arrested on 19 August 2019, ten months later and was charged in November 2020 over fifteen months after her arrest.

26.  Ms Lee explains that the ICAC had to interview over forty workers and obtain numerous banking records.  The file was first sent to the Department of Justice in May 2020.  From the summary of facts, the scale of the investigation can readily be understood.  Due to the size of the investigation I am satisfied on what I have been told in court that there has been no undue delay. 

27.  After dismissal the defendant has been able to find work as a saleslady and in a security company until she resigned on 31 December 2020.  I have read the letter written by the defendant’s supervisor who describes the defendant as hard working. 

28.  The defendant suffered from a major depressive disorder due to the breakdown of the marriage [15].  Unable to pay her husband’s debts loan sharks kept on harassing her.  The defendant was admitted to Castle Peak Hospital from where she still receives outpatient treatment[16].

29.  Over two years have passed since Lingma dismissed the defendant and over seventeen months since the defendant was arrested during which time the defendant has found other employment and suffered from depression.  In the circumstances I reduce the total sentence to be served by the defendant by 2 months to 3 years and 2 months’ imprisonment.

30.  Mr Choi informs the court that arrangements have been made for the son to be looked after by the younger sister of her ex-husband, which arrangement has the approval of the social worker.

31.  I am satisfied the fact that a sentence of imprisonment will deprive the son of the parental care of his mother, his only parent, is a factor I can take into account in passing sentence[17].As an act of mercy I further reduce the total sentence by 2 months to 3 years’ imprisonment.

Sentence

32.  The defendant is convicted and sentenced to concurrent sentence as follows:

Charge 1 – 3 years’ imprisonment;

Charges 2-6 and 8-11 - 4 months’ imprisonment on each charge;

Charges 7, 12 & 14 - 6 months’ imprisonment on each charge; and

Charge 13 – 12 months’ imprisonment

The total sentence to be served by the defendant is 3 years’ imprisonment.