HKSAR v. TSUI CHEUK NGA

DCCC 43/2019

[2019] HKDC 964

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 43 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty on 18 July 2019 to one charge of theft, contrary to section 9 of the Theft Ordinance[1] (charge 1); three charges of copying a false instrument, contrary to section 72 of the Crimes Ordinance[2], (charges 2, 4 & 6); and three charges of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance (charges 3, 5 & 7).

2.  The offences arise out of the misappropriation of monies belonging to the defendant’s mother.  I adjourned sentence for a background report to know more about the defendant and her family.

3.  Full particulars of the offences are set out in the facts admitted by the defendant on 18 July 2019.  In summary since about 1999 the defendant’s mother had been suffering from Alzheimer’s disease and was incapable of managing her own assets. 

4.  In 2008 upon application by the family the Court of First Instance (“the court”) appointed a committee of estate to manage and administer the property and affairs of the mother. 

5.  The court appointed the defendant and her two sisters Tsui Cheuk Man and Tsui Cheuk Yan as members of the committee.  The committee was required to submit to the court annual returns reporting the status of the mother’s assets and the expenses incurred together with supporting documents.  

6.  On 27 September 2008 the defendant and her two sisters opened an account with the Nanyang Commercial Bank Limited and transferred to the account $1,011,930 of their mother’s assets obtained from the sale of a flat jointly owned with the father and which had been sold to provide a better living for the mother. 

7.  In accordance with the order of the court the monies were to be used only for the mother’s expenses.

8.  Initially the signatures of two sisters were required to operate the account.  In April 2009 the sisters agreed that the account could be operated with the signature of any one of them. 

9.  In 2013 Tsui Cheuk Man checked the balance of the account and discovered there was only $100 left in the account, which was inconsistent with the annual returns submitted to court.  Tsui Cheuk Man made enquiries with the defendant who admitted that she had stolen money from the account for her own use. 

10.  On 8 September 2013 the defendant surrendered to the police.  Under caution the defendant admitted, inter alia, that she had withdrawn $930,000 of which only $200,000-$300,000 was used for her mother’s medical and daily expense; the rest was spent on her own daily expenses and those of her sister Tsui Cheuk Yan, including paying rent, credit card payments and her sister’s school loan; in order to conceal her wrongdoing from her sisters she claimed she had won the lottery and made a profit on the stock market; and that she forged copies of the bankbook of the account by altering the withdrawal and balances of the account.  

11.  Investigation revealed discrepancies in the bankbooks of the account and the copies submitted to court as part of the annual returns.  From May 2010 the balance in the account was lower than the balance shown in the copies submitted to court[3].  As at 31 December 2012 the balance in the bank account was $67.60 whereas the copy submitted to court showed a balance of $955,547.22.

12.  Between 1 January 2010 and 31 December 2013 the defendant made unauthorized withdrawals in the total sum of $650,000 (charge 1)[4].

13.  To cover up her wrongdoing the defendant prepared and submitted to court false documents as part of the annual returns for 2010, 2011 and 2012.  The defendant annexed to each annual return a copy of the bankbook of the account on which she had altered some of the withdrawals and the balances of the account (charges 2 to 7).   

Mitigation

14.  In passing sentence, I have carefully considered the oral and written submissions of Mr Chiu, including that the defendant is responsible for looking after her mother; the offences were committed because of financial difficulties and the money was not used for personal gain or enjoyment but spent on daily expenses such as paying rent, credit card payments and her sister’s school loanand medical expenses[5]. 

15.  I take into account that the defendant has a clear record.

Background report

16.  The background report provides details of the defendant’s living accommodation; employment history and the defendant’s relationship with her family, in particular that the mother daughter relationship was close and the defendant’s relationship with her younger sister was very close[6]. 

Mitigation letters

17.  The defendant has written a lengthy mitigation letter in which she details her mother’s illness and the reasons why she misappropriated her mother’s money; how she has looked after her younger sister who was unable to work due to chronic illness and that her father is old and also needs to be looked after. The circumstances leading to the offences are also detailed in the background report[7].

18.  I have read the mitigation letters written by the defendant’s father, sisters, brother-in-law and maternal aunties and uncles in which they show their care and concern for the defendant and ask for a lenient sentence.  The care and concern shown by the family is also reflected in the background report[8].

19.  The elder sister details how the defendant shouldered the heavy burden alone of looking after their mother and younger sister.  The younger sister describes how well the defendant has looked after her and after their mother.  The younger sister stresses that despite the loss of the mother’s money, the health of the mother has not suffered.

20.  In their letters the sisters worry as to the mental health of the defendant.  Mr Chiu has submitted to court copies of recent consultation summaries which show the defendant suffers from anxiety for which she was prescribed zopiclone[9].  The sisters hope that if the defendant is imprisoned she would accept psychiatric and/or psychological treatment during her imprisonment so as to safeguard her mental and psychological well-being[10].

21.  The defendant told the probation officer that she was able to cope with all the stress by herself without the need for intervention and although she was advised to consult a clinical psychologist the defendant denied the need for psychotherapy[11].

22.  Mr Chiu confirmed in court that the mental health of the defendant was not a contributory factor in the commission of the offences. 

Offences

23.  Mr Chiu accepts this is a breach of trust case[12]. The conduct of the defendant in betraying the trust of her family and the court to properly manage the property and affairs of her mother make these serious offences, in particular the submission of false instruments to court to conceal the theft. 

24.  In her mitigation letter the defendant says that under impulsive thought she misappropriated her mother’s money[13]. This is not a single isolated act of dishonesty.  The theft of the money took place over a period of four years although it appears most of the money had been stolen by 31 December 2012[14], which theft was in contravention of a court order and concealed from the court by submitting false instruments in December 2010, 2011 and 2012. 

25.  Although there is nothing to confirm the defendant’s assertion that the stolen money was not used for personal gain or enjoyment but spent on daily expenses such as paying rent, credit card payments and her sister’s school loanand medical expenses, I am prepared to accept that the defendant committed the offences because she helped to look after her mother and was therefore unable to work resulting in her being unable to pay the household and daily expenses.  

Starting points

26.  In passing sentence, I have considered the principles laid down in R v Barrick[15] and R v Clark[16] as applied inHKSAR v Cheung Mee Kiu[17] and adjusted in HKSAR v Ng Kwok Wing[18].  The guidelines state the proper starting point after trial is between 2 to 3 years’ imprisonment where the amount stolen was between $250,000 to $1 million. 

27.  Some of the matters to be considered in determining the proper level of sentence include: (i) the quality and degree of trust reposed in the offender; (ii) the period over which the theft was perpetrated; (iii) the use to which the money was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on others; (vii) the effect on the offender; (viii) the offender’s own history; and (ix) matters of mitigation special to the offender such as illness, where the offender has been under great strain, where there has been a long delay and any help given to the police[19]. 

28.  Taking into account the period over which the defendant stole the money; the amount stolen; the defendant betrayed the trust of both her family and the court; the defendant was the sister who shouldered the burden of looking after her mother; the monies were not spent on personal enrichment and that the mother’s health did not suffer as a result, I am satisfied a starting point lower than the guideline is appropriate.  I am satisfied a starting point of 1 year and 6 months’ imprisonment is appropriate for charge 1.

29.  The concealing of the theft from the court by submitting false documents is very serious for which a sentence of imprisonment is appropriate.  I am satisfied a starting point of 1 year and 6 months’ imprisonment is also appropriate for each of charges 2 to 7. 

30.  Giving the defendant full credit for her pleas of guilty reduces the sentence on each charge to 12 months’ imprisonment.

Delay

31.  As noted earlier one matter to be considered in determining the proper level of sentence is mitigation special to the offender such as where there has been a long delay.

32.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[20].

33.  The defendant surrendered to the police on 8 September 2013 and was charged on 14 December 2018, over five years later. 

34.  Mr Hung has submitted to court a time line of the police investigation from which can be seen there was extensive police investigation.  Legal advice was regularly obtained from the Department of Justice in 2014, 2015, 2016, 2017 and 2018. 

35.   Clearly whilst the police needed time to investigate the matter over five years would appear rather a long time to complete the investigation of what was not a very complex case. Arguably therefore the case could reasonably have been brought to court earlier than it was. 

36.  The matter having been hanging over the defendant for over five years as a result of which she has suffered anxiety [21], I am satisfied credit should be given in sentence for the long time taken to bring the case to court[22].  In the circumstances I reduce the sentence on each charge by 3 months to 9 months’ imprisonment. 

Suspended sentence

37.  In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small and that it will not usually be appropriate in cases of serious breach of trust to suspend the sentence[23]. 

38.  Mr Chiu asks that the sentence be suspended by reason of the defendant being the only person who can and is willing to look after her mother and that the defendant committed the offence to pay for family expenses and not personal gain or enjoyment[24].

39.  In her mitigation letter the defendant asks for a suspended sentence so she can look after her mother describing her care as irreplaceable and which cannot be provided by the nurses of the Haven of Hope Hospital where her mother now stays and has stayed since 2013. 

40.  In support of a suspended sentence Mr Chiu relies on the judgment in HKSAR v Tong Yee Chun[25]. Although that case concerned a solicitor who cheated both his client and his firm and was therefore serious, the amount involved was only $12,600, there was full restitution and at the time the solicitor was aged 67 and was suffering from serious illness.   

41.  In determining whether to suspend the sentences I have carefully considered the need for individual justice, as articulated in the cases of HKSAR v Leung Pui Shan[26] and HKSAR v Yeung Kwun Kuen[27] cases concerning obtaining money by deception and theft.    

42.  Both Leung and Yeung were young offenders, Leung 19 and Yeung 21.  In Leung Pui Shan the appellant had not set out to deceive purely for personal gain, the offences being committed in the midst of emotional confusion.  In Yeung Kwun Kuen, the appellant who had been suffering from a long-term mental health problem committed the offences close upon the heels of a traumatic event, namely the death of his grandmother. 

43.  I am satisfied the circumstances in all three cases are very different to the present case and the present case is more serious, in particular the submission of false documents to court to cover up the theft. 

44.  I am satisfied the mother will be well looked after.  Both sisters told the probation officer that they are committed to take care of their mother in the absence of the defendant and together with the brother-in-law they will give their support and encouragement to their sister and visit her regularly if she is imprisoned[28].

45.  Having regard to all the circumstances of the commission of the offences and the personal circumstances of the defendant, I am satisfied the offences are too serious for the imposition of a suspended sentence[29]. 

Totality

46.  Although the criminality of the offences is different I am satisfied that they are part of a series of acts for which concurrent sentences are appropriate. 

47.  I am satisfied a total sentence of 9 months’ imprisonment properly reflects the defendant’s criminality on the seven charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[30]. 

48.  The defendant is convicted and sentenced to concurrent sentences of 9 months’ imprisonment.