HKSAR v. WONG LIN TAK

DCCC 991/2017

[2018] HKDC 299

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 991 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to 23 charges of theft[1], 1 charge of attempted theft and 1 charge of burglary[2].

Summary of facts

2.  The defendant began working for Matrix Promotion Limited on 17^th August 2016. His duties included collecting checks sent in by clients and passing them on to his superiors.

3.  From 16^th January 2017 onwards, the defendant had been absent from work. He was formally terminated by the company by way of a letter dated 19^th January 2017.

4.  On 20^th January, upon checking of the client files that were handled by the defendant, the company found that a number of checks that had been sent out by clients to the company had gone missing.

5.  The checks were all deposited into the defendant’s Bank of China account (012-742-1-008541-3). Certified bank copies of the checks revealed that the payees had all been altered to “Wong Lin Tak”, being the defendant’s name.

6.  6 checks in the total amount of $189,317were identified and set out in the table in paragraph 5. Each of the 6 checks form the subject matter of the stolen chose in action in each of charges 1 to 6.

7.  The dates of clearance of the checks were from 6^th to 23^rd January 2017.

8.  The check in charge 6 was found to have been stolen from the desk of a Matrix employee on 23^rd January 2017. For this, the defendant is charged with burglary for entering Matrix as a trespasser and stealing the check (charge 7).

9.  The police conducted further investigations into the defendant’s Bank of China account as well as his Bank of East Asia account (256-88-11345-8).

10.  3 other checks that were posted to and meant for two different companies were found to have been altered and deposited into the defendant’s bank account. The alterations were by way of changing the payee to “Wong Lin Tak”.

11.  The details of the 3 checks are set out in the table in paragraph 8 of the summary of facts. They involved a total amount of $185,000. The dates of clearance for those checks were from 26^th January to 1^st February 2017. The choses in action based on the 3 checks form the subject matter of charges 8, 9 and 10 respectively.

Theft of the 1^st mailbag

12.  At around 11:30am on 15^th February 2017, a mailbag that was left unattended at the lobby of a building in Tsuen Wan was stolen by the defendant. Inside the mailbag were about 330 letters and 3 letters being sent by way of Registered Post, all posted on 14^th February.

13.  The theft of the mailbag by the defendant was captured by nearby closed circuit television cameras. This is the subject matter of charge 11.

14.  Among the items in the stolen mailbag were 2 letters containing checks. Based on the check copies made available by the bank of the receiving account, police were able to contact the senders and intended recipients of the checks. They confirmed, respectively, that the check amount had been cleared but not by the intended recipients.

15.  The certified check copies showed that the payees had each been altered to that of “Wong Lin Tak” and were all deposited into the defendant’s Bank of China account.

16.  The total amount of the 2 checks is $359,140.40, but since one of them bounced because the amendment was made to the check without an additional signature, the total amount deposited into the defendant’s account was $21,969.40. Both checks were deposited on 16^th February 2017.

17.  The attempted theft of the chose in action in the bounced check, and the theft of the chose in action in the based on the successfully deposited check form the subject matter of charges 12 (attempted theft) and 13.

Theft of the 2^nd mailbag

18.  At around 11:35am on 21^st February 2017, postman Mr Cheung left his mailbag unattended at the lobby of Cheung Fung Industrial Building in Tsuen Wan for 15 minutes and found it stolen upon his return.

19.  Closed circuit television camera captured the defendant entering the lobby, picking up the mailbag and placing it inside another large black bag and left.

20.  There were about 150 letters, 6 Registered Post letters and about 210 pieces of Hongkong Post circulars inside the stolen mailbag. It forms the subject matter of charge 14.

21.  Similar to the first stolen mailbag, some of the letters inside contained checks. The payee column of 9 checks were found to have been altered to that of “Wong Lin Tak” and deposited into the defendant’s Bank of China account.

22.  The details of the checks are set out in the table at paragraph 17 of the summary of facts. The total amount involved is $494,527.30. The dates of clearance of the checks are from 21^st to 27^th February 2017. The choses in action based on each of the 9 checks form the subject matter of charges 15 to 23.

Theft of the 3^rd mailbag

23.  At around 10:24am on 7^th March 2017, postman Mr Choi left his mailbag unattended at the lobby of Golden Dragon Industrial Centre in Kwai Chung while delivering mail. He returned to the lobby at 12pm to find the mailbag together with the 300 odd letters inside missing.

24.  Closed circuit television cameras captured the defendant entering the lobby at 11:11am and took the mailbag 4 minutes later and left. The theft of this 3^rd mailbag forms the subject matter of charge 24.

25.  One of the letters inside the mailbag contained a check. Just as before, the sender and intended recipient of the check were contacted and they confirmed that the check was deposited but not by the intended recipient.

26.  Copy of the check showed that the payee column had been altered to “Wong Lin Tak” and the check was deposited into the defendant’s Nanyang Commercial Bank account (043-486-1-042275-1).

27.  The amount of the chose in action based on the check is $2,200. The check was deposited on 8^th March 2017. This forms the subject matter of charge 25.

Account details

28.  The defendant’s Bank of China account was opened on 6^th October 2005. The first stolen check was deposited on 6^th January 2017, while the last one was deposited on 28^th February 2017.

29.  The defendant made withdrawals in cash or transfers to a Hong Kong Jockey Club account shortly after each deposit. The Bank of China account was closed on 3^rd March 2017 with a closing balance of $1.38.

30.  The defendant’s Bank of East Asia account was opened on 31^st October 2016. Just one of the stolen checks was deposited into this account on 1^st February 2017. The entire deposited amount was withdrawn over a 3-day period.

31.  The defendant opened the Nanyang Commercial Bank account on 8^th March 2017. At least one of the stolen checks was deposited into this account. The police led the defendant to close the account on 10^th March 2017, with the remaining balance of $9,760 seized.

32.  The defendant had deposited nearly all the checks using check deposit machines, as captured on closed circuit television footages.

Arrest and caution

33.  The defendant was arrest at his home on 9^th March 2017 for the theft of the 1^st and 2^nd mailbags.

34.  4 video recorded interviews were conducted with the defendant. The defendant claimed the following under caution:

35.  The defendant returned to his former employer Matrix twice after he was dismissed. On the second occasion, he broke the bicycle lock securing the main door using his bare hands. Having entered, he stole the check in question from his former supervisor’s desk. He used adhesive tape to secure the broken lock before leaving the company.

36.  The defendant used adhesive tape to remove the original payee and replaced it with his name. he then deposited the check into his Bank of China account using the check deposit machine.

37.  The defendant confirmed that he had removed the original payees on the client checks that he had dealt with when he was still working for Matrix and replaced them with his name. He deposited the altered checks into his Bank of China account.

38.  The defendant admitted to stealing the 3 mailbags. He would open the letters to look for checks. He kept the checks he found and threw the mailbag and the unwanted letters into the rubbish bin on the street.

39.  He would use the same technique to replace the original payee’s name with his and then deposit the checks using check deposit machines.

40.  The defendant admitted that all the checks deposited into his 3 bank accounts were stolen checks and amounted to around $1,000,000 in total.

41.  He made withdrawals at ATMs as well as over the counter. He used the money to repay his gambling debts in Macau. He also made frequent transfers to his HKJC betting account . He had spent or lost all the money he had stolen.

Previous convictions

42.  The defendant has 7 previous convictions from one court appearance. All 7 were for theft and the defendant was sentenced to a total of 8 months’ imprisonment.

43.  Given that the convictions are dated 24^th December 2012, which is slightly more than 4 years before the date of the defendant’s first theft in the present case, I find that enough time had lapsed that the defendant should not be regarded as a repeated offender on this occasion. I will, therefore, not enhance his sentence on this basis.

Mitigation

44.  In his succinct mitigation, Mr Chiu for the defendant informed the court that the defendant is 29 and single. He resides with his father, mother and younger brother (aged 80, 60 and 31 respectively) at a public housing unit.

45.  The defendant obtained his degree in accounting at City University of Hong Kong. He had worked as an accounts clerk and salesman before working for Matrix, earning about $20,000 per month.

46.  I am told that the defendant is a gambler and had incurred gambling debts. The reason behind his commission of the various offences is so that he would be able to repay the money he borrowed from financial institutions for his gambling.

47.  Mr Chiu points out that the defendant had cooperated fully with investigating police officers after his arrest.

48.  Mr Chiu referred to 3 District Court cases to assist this court in sentencing.

49.  In relation to HKSAR v Yam Ka Wai, DCCC 543/2013, the case was concerned with theft of over $1.2 million involving a breach of trust element. The amount involved in our case where the thefts involved a breach of trust element is much less at $83,807, being the total amount in charges 1 to 5. This case is of no assistance to this court.

50.  As for the cases of HKSAR v Cheung Kwan Wah and others, DCCC 1139/2012 and HKSAR v Wong Wai Man, DCCC 300/2014, they both involved theft from letter boxes. The facts there bear no resemblance to the present case and are of no assistance to me.

Sentencing considerations

51.  The maximum sentence on conviction upon indictment for theft and attempted theft is that of 10 years’ imprisonment.

52.  The maximum sentence for burglary is that of 14 years’ imprisonment.

53.  I find that all the thefts, the attempted theft, and the burglary were planned and well executed by the defendant.

54.  It would not have been obvious for those investigating the mail bag thefts to make the connection between that and the stolen chose in action and money deposited into the defendant’s bank accounts.

55.  But for the defendant’s unannounced and unexplained disappearance from his post, the company would not have realized that the defendant had been stealing from them, and the police would not have been alerted to the bank deposits into the defendant’s accounts, which eventually allowed them to connect the check deposits to the mail bag thefts.

56.  Although the defendant did confess to the crimes, it would not have been difficult for the police to unravel the story behind the thefts and the burglary by following the deposits. Any discount on the sentence on the basis of assistance rendered to authorities should and is subsumed in the one-third discount granted for the defendant’s guilty plea.

57.  Given the seriousness of the circumstances of the commission of the offences, I find that an immediate custodial sentence is the only sentencing option open to me.

Charges 1 to 5: breach of trust thefts

58.  The defendant was an employee of Matrix when he committed the thefts in charges 1 to 5. He came into possession of the checks that he stole and altered as a result of his position in the company.

59.  As accepted by Mr Chiu, these offences were committed by the defendant in breach of the trust the company had placed in him.

60.  The sentencing guidelines in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 (as clarified in HKSAR v Ng Kwok Wing and another) apply to this set of thefts. The band of sentencing tariff for theft of up to $250,000 involving a breach of trust element is that of up to 2 years’ imprisonment.

61.  The total amount stolen is $83,807 for the 5 charges combined. An application of the guideline tariff would lead to a starting point of 8 months’ imprisonment.

62.  I will adopt a starting point of 8 months’ imprisonment for each of the 5 charges and order them to run wholly concurrently.

63.  The total sentence after plea for this set of 5 charges is 5 months’ imprisonment after rounding up the one third discount in favour of the defendant.

Charge 6 and 7: theft and related burglary

64.  The check that the defendant had stolen in charge 6 in order to appropriate the chose in action was taken from the desk of the defendant’s former supervisor when the defendant entered the company as a trespasser on 23^rd January. The defendant was no longer an employee of the company at that time.

65.  The chose in action stolen in charge 6 is $108,510. I find that an appropriate starting point is 6 months’ imprisonment.

66.  In relation to the related burglary charge, I find that the defendant had intended to return to his former company to steal. He had broken open the lock to gain entry, although just with his bare hands.

67.  It is trite law that the burglary of a non-domestic premises would attract a starting point of 2 and a half years’ imprisonment for a first offender, subject to any aggravating or mitigating features. Mr Chiu for the defendant accepts the application of the guideline sentence.

68.  I find that there is no reason for this court to depart from that sentencing guideline and I do adopt that starting point.

69.  I find that the theft of the chose in action and the burglary can be regarded as arising out of one single transaction.

70.  That being the case, the sentences in these two charges should be ordered to run wholly concurrently.

71.  The total sentence for charges 6 and 7 is therefore 20 months’ imprisonment after granting the defendant the one-third discount for his guilty plea.

Charge 8, 9 and 10: theft of 3 checks

72.  These checks were stolen by the defendant. There is no evidence to suggest that they were stolen while the defendant was still working for Matrix. It is not clear how the defendant came into possession of these 3 checks.

73.  The total amount involved is $185,000. I find that the appropriate combined starting point for the 3 thefts is 12 months’ imprisonment.

74.  I adopt a 12-month starting point for each of the 3 charges and order them to be served wholly concurrently. The combined sentence after plea is 8 months’ imprisonment.

Charges 11, 14 and 24: the mailbag thefts

75.  The defendant targeted industrial buildings. He had obviously planned the thefts, knowing that the postal officers will not be able to tend to their mailbags when they were busy delivering post.

76.  The defendant did not waste time by bringing the mailbags home. He went through them while on the bus. He was selective of what he stole from the mailbags. The worst part is that he disposed of his unwanted contents of the bags into rubbish bins.

77.  In this digital age, so called “snail mail” is rare. For those who had bothered to expend time and effort to write, the defendant’s act of stealing and then disposing of the mail in rubbish bins is particularly offensive. Apart from anything of monetary value that would have been lost, the sentiments embedded in the letters or cards are forever gone and irreplaceable.

78.  Having said that, the defendant had targeted industrial buildings and it is more likely that the post were for commercial rather than personal purpose.

79.  Nevertheless, I find that a deterrent sentence is required for the theft of mail bags, especially when stolen from postal officers who are unable to attend to them while delivering post.

80.  An appropriate starting point is that of 2 years’ imprisonment for each of the mailbag thefts, which is discounted to 16 months’ imprisonment after plea.

81.  The 3 mailbags were stolen on 3 different days at 3 different locations. The only connection between the thefts is the defendant’s involvement.

82.  I order that 4 months of each of the sentence for the 2^nd and 3^rd mailbag thefts be served consecutively to each other and the sentence of the 1^st mailbag theft, the balance concurrently.

83.  The total sentence after plea for the 3 mail bag thefts is 2 years’ imprisonment.

Charge 12 and 13: theft of checks found in 1^st stolen mailbag

84.  The defendant found and stole two checks in the 1^st mailbag he stole on 15^th February. The actual amount stolen and deposited into the defendant’s bank account is $21,969.40. This amount is in relation to one of the two checks. The other check was stopped by the bank because it lacked an additional signature against the alteration that the defendant had made to the payee column.

85.  I adopt a starting point of 3 months’ imprisonment for each of the two stolen checks and order them to be served concurrently.

86.  The theft of these two checks are directly linked to the theft of the mailbags. The defendant stole the mailbags in order to look specifically for checks to steal.

87.  I will order that the sentences of these two charges to run wholly concurrently to the sentences of the 1^st mailbag theft.

Charges 15 to 23: thefts of checks from 2^nd stolen mailbag

88.  A total of 9 checks were taken from the 2^nd mailbag that the defendant had stolen on 21^st February 2017.

89.  The total amount involved is $494,527.30.

90.  I find that a combined starting point for the 9 thefts should be 24 months’ imprisonment. I will impose this sentence on each of the 9 charges and order them to run concurrently.

91.  The combined sentence for them after plea is, therefore, 16 months’ imprisonment.

92.  Just as in the case of the thefts arising from the 1^st stolen mailbag, I will order the sentences in these 9 charges to be served wholly concurrently to the sentences in relation to the theft of the 2^nd mailbag.

Charge 25: theft of check from 3^rd mailbag

93.  Only 1 check was stolen by the defendant from the 3^rd mailbag that he had stolen. The amount involved is $2,200.

94.  I find that an appropriate starting point is that of 3 months’ imprisonment, which is discounted to 2 months’ imprisonmentupon the defendant’s guilty plea.

95.  I order this sentence to be served concurrently to the sentence of the theft of the 3^rd mailbag.

Totality

96.  I would not be amiss to say that the defendant was a professional thief. He had meticulously planned the thefts. He obviously did a very good job of making the alterations to the checks since all but one of the stolen checks had been successfully deposited into his bank account. The one that did not was as a result of a missing signature and not of the alteration being found wanting.

97.  The 25 offences were committed over a two month period between 6^th January and 8^th March 2017. The defendant’s desire to keep on stealing was relentless.

98.  Taking a step back, I find that an overall sentence after plea of 3 and a half year’s imprisonment is appropriate.

99.  To achieve that sentence, I order that the 5 months sentences for charges 1 to 5, the 20 months sentence for charges 6 and 7, the 8 month sentence for charges 8 to 10 be served consecutively, bringing us to a sentence of 33 months.

100.  I order that 9 months of the sentences of charges 11 to 25 be served consecutively, the balance concurrently.

101.  The total final sentence for all 25 charges after plea is 42 months’ imprisonment, or 3 and a half years’ imprisonment.