HKSAR v. JOK MAN-FAI

DCCC 90/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 90 OF 2013

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant, you have pleaded guilty to 16 charges of theft, contrary to section 9 of the Theft Ordinance. They were Charges 1 to 14, 16 and 18 on the indictment.

2.  The offences concerned the theft of your employer’s money.  At the material time you were employed as a finance manager at the Sara Beattie Group Limited.  You were employed between 30 April 2010 and 19 July 2011, In this period, you stole $1,050,972.75.  You stole the money from the Sara Beattie Group’s bank accounts and either deposited them into your own bank account or cashed their cheques.

3.  This case is one clearly of a breach of trust. Your counsel, Mr Lewis Chan, has mitigated fully and thoroughly on your behalf before me.  You are a man of clear record.  You are aged 48, single and are living in Hong Kong.  You have had a career generally as an accounting clerk dating all the way back from 1987.  You have been educated both in Hong Kong and in Canada up to, I believe, college level.  You were employed by the Sara Beattie Group for approximately two years.  Six months after you commenced working there, you began to dip your hand into the till.  Some three months before you resigned, you stopped this. 

4.  In January 2012, the new finance manager conducted an internal audit, the finance manager discovered these thefts that you had committed from your employer.

5.  Mr Chan has informed me that you committed these thefts because you were under grave financial constraints and difficulties.  Before you were employed by the Sara Beattie Group, you had been unemployed for approximately 16 months.  During that time despite your unemployment, you still contributed money to your father who was living in Canada. You had resorted to borrowed money for this purpose.  Furthermore, your mother had passed away in 2007 but before her passing, you had had to bear medical expenses of some $800,000.  This money you had borrowed from a girlfriend but then the relationship ended in 2009 and you had to find ways to repay this money to your former girlfriend.  As a consequence you found yourself penniless and therefore you took advantage of what it appears, to be very lax supervision at Sara Beattie and began to steal money.  

6.  Clearly, you were placed in a position of great trust.  The director of the group, Miss Beattie, had in fact left you with signed blank cheques in advance for emergency use.  You had been given various electronic devices to be used for e‑banking.  You were free to transfer moneys from any of the Sara Beattie’s accounts.  You were, apparently, the only one in charge of these accounts.  Placed in a position such as this, you committed a grave breach of trust by stealing from your employers.  You were entrusted by the company to handle its finances.  Yet instead of handling their finances, you stole their monies from under their nose.

7.  Your plea of guilty came after the first prosecution witness had been called and towards the end of her evidence-in-chief.  I am informed by Mr Chan, your counsel, that you pleaded not guilty at the outset because you wanted to maintain the present job you were in so that you could make repayment to the Sara Beattie Group.  

8.  I understand you wanting to make repayments and keeping your job, but it does not make sense to me that if you are guilty that you enter a plea of not guilty.  The evidence against you was quite overwhelming. Moneys were clearly transferred from the company’s account into your own personal bank accounts.  Your defence at the time was that these were loans made to you by the company. It was clear from PW1 that no loans would ever be made to company employees. 

9.  Despite the calling of PW1, her evidence lasted a very short time.  She had testified for approximately an hour or less.  I will not take your late plea of guilty against you.  I would be entitled to give you less than the usual one-third had you pleaded at the outset.  However, I note that at the outset there were many facts you had admitted and your counsel had not yet started cross-examination of PW1.  In the circumstances, I will give you the full one-third discount upon your late plea of guilty.  

10.  I have heard that you are not an evil man.  You had been an upright, decent citizen up until the commission of these offences. You have made various charitable donations in money as well as being an avid supporter of giving blood.   

11.  As your counsel rightly sets out, breach-of-trust guidelines are set down by the Court of Appeal.  They are guidelines and not straitjackets, and they are there to assist the court in arriving at the correct sentence.  It is clear to me in this case that the band to which you fall into as set out in the case of HKSAR v Cheung Mee Kiu is the band between 1 million to 3 million, of which the appropriate starting point after trial is between 3 to 5 years’ imprisonment.  That band was of course corrected slightly in the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1018.

12.  Defendant, you abused your position as finance manager. Great trust was placed in you by the company, you stole funds from the company.  The amount that you stole was about $1.05 million.  On the basis of the amount of money you had stolen I take a starting point had I convicted you after trial, of 3 years’ imprisonment.  However, you have pleaded guilty and I give you the full one-third discount, and that sentence shall be reduced to one of 2 years’ imprisonment to which you shall serve for all charges.  The 2 years imprisonment is to be imposed for each charge and all sentences in the 16 charges shall run concurrent to each other.