HKSAR v. CHEUNG CHEUK LAI, KELVIN

DCCC 1237/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1237 OF 2011

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REASONS FOR SENTENCE

1.  The defendant has pleaded guilty to the two charges on the indictment that she faced, namely 2 counts of theft, contrary to Section 9 of the Theft Ordinance, Cap 210.

2.  I have carefully considered all that had been urged upon me in mitigation by counsel on behalf of the defendant as well as the contents of the Background Report which is before me.  No issue has been taken on the contents of this report save for some minor corrections as to the date when the defendant’s parents passed away and the year in which the family had bought a flat.

3.  Full particulars of the offences admitted by the defendant are set out in the summary of facts admitted by her.  Briefly, the defendant had been employed by the victim herein, Mr Cheng Kam Wah, as his personal assistant since 1986.  Mr Cheng was the proprietor of Kian Hin Leong Enterprises Ltd. The defendant was one of the signatories of his savings account and current account held with the Bank of China.

4.  In respect of charge 1, on 29 December, 2008, when he was in Australia, Mr Cheng instructed the defendant to transfer HK$1 million from his savings account to his current account on 2 January, 2009.  The defendant informed him that she had complied with his instructions.   On 15 January, 2009 he returned to Hong Kong, and on 16 January, 2009 he discovered that there was a HK$1 million overdraft in his current account and that HK$1 million was missing from his savings account.  When he asked the defendant, she admitted that she had transferred the HK$1 million from his savings account to her own savings account as her daughter needed to go to study in the UK.  She immediately repaid HK$501,033.20 to Mr Cheng and promised to repay the balance as soon as possible.

5.  On 16 February, 2009, Mr Cheng handed the defendant an undated cheque for HK$300,000 and instructed her to use the cheque at a later date on his instructions to buy Australian dollars and to deposit the Australian dollars in his time deposit account.  He wrote his instructions on the back of the cheque.  He also handed her a withdrawal slip to transfer money from his savings account to his current account, and had filled in the account numbers on the withdrawal slip.  On 5 March, 2009, Mr Cheng discovered that the defendant had deposited the cheque for HK$300,000 into his savings account and then transferred HK$300,000 from his savings account into her own account on 16 February, 2009.  When he asked her about it, she admitted stealing the money because she was in urgent need of money and promised to return the money as soon as possible. This forms the second charge of theft.

6.  However, the defendant failed to repay Mr Cheng and he reported the matter to the police in April, 2011. The defendant was arrested on 7 April, 2011 and made full admissions under caution.

7.  The total sum stolen by the defendant from her employer amounted to HK$1,300,000. She had repaid HK$501,033.20 shortly after the first theft. The balance amount was thus HK$798,966.80.

8.  There was a lapse of over two years before Mr Cheng reported the matter to the police. Mr Cheng continued to employ her, and gave her every opportunity to repay the monies she had stolen from him. It was only when he learned that she had filed a petition for bankruptcy and there was no prospect of his recovering any further monies that he reported the matter to the police.  I am satisfied that there was no delay in prosecution.  

9.  Mr Iu, Counsel for the defendant, submitted in mitigation  that the defendant is now aged 54 years.  She is married and lives with her 63 year old husband in a rented unit.  Her daughter is aged 24 years and a clerk, and lives separately with the defendant’s mother-in-law.  Her husband is a property management officer and her daughter a clerk.

10.  Counsel submitted a copy of the letter the defendant wrote to Mr Cheng dated 12 March, 2009, shortly after the second theft came to light, wherein she admitted what she had done.  She also explained what she had done with the monies she had stolen.  Here she wrote that part of the monies were deposited into the account of Kian Hin Leong Enterprises Ltd, ie Mr Cheng’s company, as repayment of sums borrowed from Wui Ko Logistics Ltd as transportation charges had to be remitted to USA through Kian Hin Leong Enterprises Ltd and part was remitted to her younger brother Sherman Cheung in Sierra Leone, Africa via Western Union.  It is surprising that no mention was made that her brother’s children had been kidnapped and a ransom had had to be paid for their release in this letter.  A copy of the defendant’s savings bank account with the Bank of China was also submitted, which shows a balance of HK$110.60 on 15/01/2009, followed by a transfer of HK$502,823.80 to the account and then a withdrawal of the same amount on 15/01/2009 as a time deposit.  There is then a deposit of HK$300,000 on 16/02/2009 and then various withdrawals on 16/2/2009 and 17/2/2009, and the balance in the bank account on 17/2/2009 was HK$73.80.  Also exhibited was a long distance telephone bill of the defendant – one can see that long distance telephone calls were made to Sierra Leone, five calls having been made on 26/2/2009, two calls on 6/3/2009, one on 7/3/2009, five on 8/3/2009, three on 9/3/2009, one on 10/3/2009, one on 11/3/2009, five on 15/3/2009, four on 16/3/2009 and one on 17/3/2009 from various Hong Kong telephone numbers to various telephone numbers in Sierra Leone.  Its not clear when the money was sent to her brother or how, nor how much was sent, but what is apparent is that the HK$300,000 she had stolen on 16 February, 2009 had all been withdrawn by 17 February, 2009 whereas the exchange of phone calls were subsequent to the monies having been withdrawn from her bank account. A handwritten letter allegedly written by the brother was exhibited, dated 11/03/2009, wherein he refers to the defendant having sent him US$250,000, and also refers to the lives of his children having been saved and a promise to repay by late May or early June, 2009.  No explanation has been tendered as to why there has been no repayment, only that he has failed to repay the defendant. I note what the defendant told interviewing officer recorded in paragraph 5 of the Background Report  - she initially said that HK$1 million had to be kept in her bank account  as  ‘the guarantee sum as required by her daughter’s college. For the other $300,000 involved in February 2009, she said that one of her younger brothers in Africa encountered a blackmail case and required her assistance. The latter however failed to return her the money after 6 months as promised’. There was no mention of the children being held for ransom – the defendant referred to a blackmail case.

11.  I had before me the Background Report in respect of the defendant.  The background of the defendant and her family is set out in detail.  What is quite clear is that the defendant had financial problems resulting from her daughter’s education and her husband’s having been unemployed as well as having to support her parents-in-law and she was under a heavy financial burden.

12.  The defendant stole a total of HK$1,300,000 from her employer on two occasions.  She repaid HK$501,033.20 almost immediately after the first theft came to light.  Although she promised to repay the balance, no further repayments were made. Instead she stole from her employer for a second time. It is unlikely that there will be anything further repaid as the defendant has now been declared bankrupt.

13.  For offences of theft where there has been a breach of trust, as clearly there has been here, the only appropriate sentence must be an immediate custodial sentence.  For theft from employers of HK$1 million to HK$3 million, the guideline is an immediate custodial sentence of 3 to 5 years’ imprisonment.  Where the amount stolen is HK$250,000 to HK$1 million, the sentence is 2 to 3 years’ imprisonment - HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 wherein the guidelines in HKSAR v Cheung Mee Kiu  [2006] 4 HKLRD 776 were adjusted refers.

14.  Save for her pleas of guilty, there is little else in mitigation of weight before me.  That she needed the money as her daughter was applying to study overseas and then because she wanted to help her brother in Sierra Leone in my view cannot amount to mitigating circumstances.  She has made partial repayment to her employer and for this she is entitled to credit.

15.  The defendant is sentenced as follows:

Charge 1 - 3 years’, ie 36 months starting, 40% discount to reflect her plea and the partial repayment to the victim, which would be 14.4 months, which I will round off to 15 months, she is sentenced to 21 months’ imprisonment.

Charge 2 – 2 years’, ie 24 months’ starting, 1/3 discount to reflect her plea, she is sentenced to 16 months’ imprisonment.

16.  These are separate and distinct offences, warranting consecutive sentences.  I have considered the totality principle.  I shall order that 7 months’ of the sentence on charge 2 be served concurrently with that of charge 1, and 9 months’ be served consecutively, that is a total of 30 months’ imprisonment, which I am satisfied properly reflects her criminal culpability on both charges.