|
DCCC854/2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 854 OF 2010
----------------------
----------------------
|
Date:
|
6 September 2010 at 10.35 am
|
|
Present:
|
Mr Anthony Chau, SPP of the Department of Justice, for HKSAR
Mr Eddie Mui, of F Zimmern & Co., assigned by the Director of Legal Aid, for the Defendant
|
|
Offence:
|
(1) to (3) Theft (盜竊罪)
|
-------------------------------
Reasons for Sentence
-------------------------------
1. The defendant in this case has pleaded guilty to three charges of theft.
2. The first charge of theft was committed between 13 November 2008 and 26 February 2010. That involved the theft of $9.59 million from the Bank of China. The account holder was a company called Sean-Tech (HK) Limited.
3. The second charge was committed between 3 August 2009 and 2 October 2009; again, the theft of moneys from a bank, this time the Hang Seng Bank, in the sum of $852,000. The account holder was a company called Century Pacific Holdings Limited.
4. The third charge was committed between 16 September 2008 and 22 February 2010; again, a theft from a bank, this time the Hongkong and Shanghai Bank, of $11,885,760.51. The account holder was a Madam Tao Kwok-yu.
5. The facts admitted by the defendant reveal that at the material time Madam Tao and her husband, Mr Tam, were the directors and shareholders of a company called Borgwaldt KC (China) Ltd (Borgwaldt). This company operated using two service companies, namely Sean-Tech and Century Pacific.
6. Since 2002, the defendant was employed by Sean-Tech as an accounting clerk. The duties of the defendant included handling the accounting matters of those companies. In the name of the defendant, on 7 August 2003 and 8 October 2009, the defendant opened two bank accounts with the Bank of China.
7. In addition to handling the corporate matters of the companies concerned, the defendant was instructed by Madam Tao to handle her personal financial investments. She had a personal bank account with the HSBC, and that was the bank account that was used in connection with the third charge. In order to facilitate the handling of the financial matters of Madam Tao, the defendant was in possession of the internet access device together with the password and the chequebook of Madam Tao.
8. On 26 February 2010, Madam Tao discovered that money was missing from her Hongkong and Shanghai Banking Corporation account and she reported the matter to the police.
9. The defendant was arrested on 27 February, and subsequently made full confessions when interviewed by the police.
10. What the defendant had done in connection with the first two charges was to transfer those sums of money to the personal account of Madam Tao and from that account she stole the sum of $11.8 million.
11. She also stole a further sum of $52,000 from the bank account of Century Pacific and transferred that to her own personal bank account.
12. 218 cheques had been used to effect these various transfers and she had forged the signatures on all those cheques.
13. The defendant lost all the money she had obtained gambling.
14. The defendant has a clear record. I am told that she is 44 years of age, she was born in Hong Kong, and now lives in rented accommodation which is owned by her younger sisters. She was paying $8,000 per month for that flat before she was arrested.
15. She is now divorced from her husband. They separated in 1995 and were divorced in 1998, and she has custody of their 18-year-old son. Her husband was supposed to pay maintenance of $5,000 per month but has failed to do so since 2001. She has raised her son single-handedly. The son is in full-time education and is now in Form 7.
16. I am told that the defendant has parents who are now in their 70s, and she has two elder brothers and two younger sisters.
17. I am told that she has had an unfortunate background. She has regularly been in employment and she needed to be so in order to keep her son. She has had various jobs working as an accounts clerk and clerk and cashier in a number of companies.
18. After she was divorced from her husband, I understand that she met another man who became her boyfriend and they lived together. At that time, she was working as an accounts clerk in Tsuen Wan and the boyfriend was also working for that company. The job in Tsuen Wan was a good position, she was earning $28,000 per month. Unfortunately, however, her boyfriend was a heavy gambler and she had to repay his gambling debts. I am told that she also supported her boyfriend’s parents from 1998 to 2003. I am told that 2003 was a particularly unfortunate year for the defendant. She was heavily in debt because she had used her credit card to support her son and her boyfriend and his parents.
19. Also in the years between 1997 and 2003, the Hong Kong economy had a downward spiral. She was left in a negative equity position and had to file for bankruptcy in 2003.
20. I am told that she obtained her current job in 2002. She worked for Madam Tao but the salary was much less than the salary she had enjoyed whilst working in Tsuen Wan. The salary was only $16,000 per month.
21. In 2007, I am told that her boyfriend left her and she was in great depression. I was also told that the heavy workload imposed upon her was causing her great stress. In addition to doing the work of both companies, she also had to handle the personal financial matters of Madam Tao.
22. I was told that it was in those circumstances that in 2007 the defendant became addicted to gambling and travelled regularly to Macau. I was told that prior to that, in 2003, she was suspected of having cancer, and fortunately the growth turned out to be benign.
23. Letters have been placed before the court from her siblings and also from her son. The son is very supportive and he refers to her as having been a great mother and he recognises that she has been under great pressure and it was in those circumstances that her involvement in these offences came about.
24. In mitigation, it is urged upon me that not only does the defendant have a clear record, but she entered a guilty plea at an early stage and, in fact, surrendered herself to the police with Madam Tao when these offences first came to light.
25. I am told that she is a hardworking and diligent lady, and whilst raising her son, she obtained a Bachelor of Accounting degree in 2002. She did this via long distance learning program.
26. These offences are clearly serious offences. They involve a gross breach of trust. You were not only handling the companies’ affairs of Madam Tao, you were handling her own personal affairs. She trusted you to such an extent that she gave you possession of her bank books, her internet access device and password, and the defendant has abused that trust.
27. I am told that notwithstanding there are three charges and the total amount is in excess of $21 million, the amount actually taken by the defendant was about $11.9 million. This was because the amounts stolen in the first two charges were transferred to the personal account of Madam Tao and it was out of that account that the defendant stole the amount referred to in the third charge and transferred that to her own personal account, and in addition, she stole $52,000 from the bank account of Century Pacific and transferred that sum directly to her personal account, so the total benefit is $11.9 million.
28. Her counsel has referred to the case of HKSAR v Cheung Mee Kiu, CACC99/2006. Counsel has gone through the various guidelines which have been set out in that case. Band 1 of the guidelines indicates that for theft of over $12.5 million, 10 years’ imprisonment or more would be appropriate. Band 2 refers to the amounts of $3.125 million and $12.5 million and indicates that a sentence of 5 to 9 years’ imprisonment would be appropriate.
29. Those bands referred to in the guideline would indicate that the defendant is somewhat fortunate to find herself before the District Court rather than the High Court in respect of these offences.
30. Having considered the matters that have been placed before the court in mitigation, what I have decided to do in respect of Charges 1 and 3 is to take a starting point of 7 years’ imprisonment. On Charge 2, the starting point is 2½ years’ imprisonment.
31. The sentences for the first and third charge will be reduced by one-third to reflect the defendant’s guilty plea, so those sentences will be 56 months, and on the second charge, the sentence will be one of 20 months.
32. I have to consider the question of totality.
33. As counsel has pointed out, the amounts referred to in Charges 1 and 3 were transferred into the personal account of the victim and then moved out of her personal account, and that is the subject of the third charge.
34. I have decided in the circumstances that the sentences should all run concurrently, so the total sentence will be 56 months.
|