HKSAR v. LEE VON HOU, MICHAEL

DCCC908/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.908 OF 2010

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Reasons for Sentence

1.  The defendant faces 34 charges of theft, contrary to s.9 of the Theft Ordinance, Cap.210. The defendant pleaded guilty, admitted to the summary of facts and was duly convicted of all 34 charges.

Summary of facts

2.  The defendant at all material times was employed as an accounts clerk at the victim company. He prepared checks issued out of the company account for endorsement by Mr. Ma, the owner of the victim company. Mr. Ma was the sole signatory of 2 accounts maintained in the name of the victim company at HSBC and 1 account at the Bank of China.

3.  Between 15^th March 2001 and 7^th November 2007, the defendant had forged a total of 64 checks in relation to the said 3 accounts.

4.  The forgeries came to light in November 2007 when Mr. Ma demanded the defendant to provide the accounting records of the victim company for the period 1999-2007 for auditing purpose. The defendant confessed to Mr. Ma that he had forged his signature on various occasions.

5.  The defendant further confessed that the checks he had forged were made payable either to himself, a Chan Chi Yin, a So Yiu Fai or a Cheng Kit Ling. Chan and So are former classmates of the defendant while Cheng is the mother of the defendant. For the checks payable to himself, he had deposited them into either of his own savings accounts maintained with Wing Lung Bank and HSBC. The defendant was dismissed on 31^st December 2007.

6.  Mr. Ma then reported the matter to the Police. 64 checks were shown to Mr. Ma who confirmed that the signatures on them were not his, although they did resemble his signature. Mr. Ma did not sign on those checks and he had not asked the defendant to sign on those checks on his behalf.

7.  The defendant was arrested. Under caution, the defendant admitted that he had forged the signature of Mr. Ma in the said 64 checks and had made the checks in favour of himself and those named above. The defendant confirmed that they did not have any knowledge of his forgery of the checks.

8.  Chan, So and Cheng told the Police that the defendant had approached them and requested them to deposit the checks in their respective accounts and they would reimburse the defendant in full with the sum deposited. They were told by the defendant that the money were profits made by him and they believed that the checks were genuinely issued.

9.  As sample charges, the defendant is charged with 34 counts of theft which covered the period from 15^th March 2001 to 7^th November 2007, with a total amount of HKD2,004,767.35.

Previous

10.  The defendant has no previous criminal convictions.

Mitigation

11.  The defendant is 41 years old, single and now living with his mother and younger sister. According to Ms. Wong for the defendant, he had surrendered himself as soon as he found out that Mr. Ma was going to the police.

12.  On 27.11.07, the defendant made full and frank disclosure to the Police. The defendant also on 14.12.2009 made a video recorded interview where he made full and frank disclosure about all his wrongdoings again.

13.  Although the incident was discovered in November 2008, the defendant had already been trying to get out of the bad habit of gambling in around May 2007. He called the hotline of Caritas for assistance because he found that he was addicted to gambling. During the half year, he tried to quit by himself. After the defendant’s arrest, the day after his arrest, the defendant tried to commit suicide because he could not face his mother or sister and he was referred to the Caritas family service centre. For the past 3 years he had taken part regularly and without missing a single session. He was certified by the centre as a pathological gambler. The defendant has successfully quit gambling and he had assisted the centre to help other gamblers like him to quit gambling.

14.  The defendant suffered brain damage at birth which affected his hearing. He cannot speak properly and since young had been looked down upon. It was not only until he was 14 that he was properly diagnosed. The defendant was brought up by his mother alone, his father deserting the family when he was still young. His father passed away in 2004.

15.  When the defendant was young he did not have confidence at all, he kept everything to himself and he had no proper view of the value of money, he thought he could get a good life for his mother by gambling and he could escape from work and from everything when he gambled. Gambling was a form of escape for him. He now knows that it’s wrong.

16.  Letters in mitigation were submitted.

17.  In relation to the latest company that the defendant had been working for before the commencement of his trial, the defendant had resigned from his post in order to allow the company to get someone to fill his place and for him to properly handover his work to the successor. There was no need for him to tell, but he did, the employers the reason he was leaving.

18.  The defendant also has a blog helping other people. During the past 3 years, he had done some volunteer work to assist people to quit gambling. He had tried his best to contribute to society.

19.  On a different note, it was submitted by Ms. Wong that this case had been delayed for over 2.5 years from day of arrest to day he was brought to court through no fault of his. It is Ms. Wong’s submission that the defendant had all along made full and frank admissions to both the victim company’s owner Mr. Ma or the police. It is however a fact that when the defendant was first interviewed, he did not mention there were some 64 checks that he had forged, all he did was gave a full and frank admission to the 17 checks that he was being asked about by the police.

20.  On 20^th July 2010, Police called the defendant and informed him to attend court on 10^th August 2010. It was only on 7^thAugust 2010 when the defendant was asked to go back to SSP Police station to answer charge that the charge was formally laid. The defendant had all along informed the court that he was going to plead guilty to the charges.

21.  In the case of Secretary for Justice v Chan Boon Ning referred to by Ms. Wong, there was a delay of 2.5 years and a reduction of one year from the starting point was given. Ms. Wong submitted that 1 year should be reduced from the starting point in our present case.

22.  In terms of restitution, Ms. Wong submitted that the defendant did try to get work, but was only earning a few thousand dollars during the past few years. The defendant was declared bankrupt in 2008. He had written to the ex-employer and apologized to them saying he is remorseful and has no means to repay.

Sentencing guidelines

23.  In the case of HKSAR v Cheung Mee Kiu (張美嬌), CACC 99/2006, the Court of Appeal confirmed the applicability of the English case of R v Clark (1998) 2 Cr App Rep 137 in cases of theft involving a breach of trust and set down the corresponding guidelines for similar cases in Hong Kong. For theft of between 1-3 million Hong Kong dollars, imprisonment of between 3 to 4 years is appropriate.

Sentence

24.  There are 34 charges in this case, they are sample charges and the total amount of money stolen is HK$2,004,767.35. Each of the 34 charges involves the theft of a different amount, ranging between $8,000 in charge 12 and $236,639 in charge 24.

25.  Had the overall criminality of and the total amount of property stolen in those offences been reflected by a single charge, applying the Cheung Mee Kiu guidelines would lead to a starting point of 3 ½  years’ imprisonment. 

26.  This is a case involving a breach of trust. The defendant committed the offences over a period of 6 years and 8 months, he was the only person handling the accounts of the victim company (as disclosed by counsel for the prosecution and not disputed by solicitor for the defendant) and Mr. Ma relied solely on him to deal with the accounts of the company. Although the defendant is only charged with stealing through the usage of the 34 checks, it is not disputed and it is part of the admitted summary of facts that the signatures on a total of 64 checks had been forged by the defendant during that period.

27.  I have heard and am impressed by the things that the defendant had been doing since the exposure of his theft and the reason behind his stealing, that is, his being a pathological gambler, in order to help himself and others who are in a similar position. I am convinced by the defendant and those who had written in on his behalf that the defendant is either cured of his addiction or has the addiction closely monitored by himself and those who care about him. I find that his chance of re-offending is relatively small. I am particularly impressed that the defendant had voluntarily told his employer when he resigned from his latest job that he had to face this criminal case. It takes a lot of courage to do that.

28.  I am not entirely convinced by the defendant’s legal representative in saying that the defendant had already made full and frank admission from the very beginning when all he did was admit to the 17 checks that he had been asked about. I was however told by his lawyer that he had already told Mr. Ma about all the checks in the very beginning. Nevertheless, I find that there is some delay in the prosecution of this case against the defendant and it warrants a certain amount of reduction in sentence.

29.  Bearing in mind the sentencing guidelines and the seriousness of the offences, in particular the length of time that the defendant had been stealing from the victim company, I will first of all adopt a starting point of 2 years' imprisonment on each of the 34 charges. I will order that 1 ½ years of the sentence in charge 1 be served consecutively to the rest of the sentence, while the sentences for charges 2-34 be served concurrently, making the total sentence before discount that of 3 ½ years' imprisonment.

30.  I will then grant the defendant the full 1/3 discount and reduce the sentence to that of 28 months' imprisonment.

31.  Given the delay in prosecution of the defendant, I will further reduce this sentence by 9 months and sentence the defendant to 19 months' imprisonment.