HKSAR v. LI LEUNG FUNG

DCCC 1405/2024

[2026] HKDC 61

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1405 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to one count of theft[1], that he stole choses in action totaling HK$3,195,090, debts owed by Hang Seng Bank to Madam Tsang Wai Fong.

Facts

2.  The Defendant has known the victim, Madam Tsang, for approximately 25 years, having been classmates during their secondary education and were courting until the Defendant went abroad to pursue further studies.  They were out of contact for nearly 20 years until 2023.

3.  Due to Madam Tsang’s strained relationship with her family, she entrusted the Defendant with the management of her assets, which included the sale of her residential flat located at Yuen Long On Ning Road, Yuen Long, New Territories (the “Flat”), in Hong Kong prior to her emigrating to Japan in April 2023.

4.  The Flat was ultimately sold in June 2023 with the proceeds of HK$3,163,286.10, which was subsequently deposited into the Hang Seng Bank account (the “HSB Account”) held by Madam Tsang.

5.  On 18 March 2024, Madam Tsang received WhatsApp messages from the Defendant, stating that he would be leaving Hong Kong for a year and had utilized some money from her HSB Account.

6.  The report detailing the history of the HSB Account for the period from 1 April 2023 to 31 March 2024 (both dates inclusive) revealed, inter alia, the following:

(i) On 21 September 2023, a deposit of HK$3,163,286.10 was made into the HSB Account; and

(ii) A total of 132 ATM withdrawals, amounting to HK$3,195,090, were made between 22 September 2023 and 17 January 2024 (both dates inclusive).

7.  In the WhatsApp Messages between Madam Tsang and the Defendant, when Madam Tsang inquired about the status of her funds, the Defendant replied that it would take some time to reimburse Madam Tsang and acknowledged that it was his fault.

8.  On 22 April 2024 (“the Date of Arrest”) at 1:30 pm, the Defendant was arrested by DPC15643 (“PW1”) for “Theft”. Under caution at the scene, the Defendant said “Without asking her, I stole the money from her account and used it”.

9.  In a video-recorded interview conducted from 11:17 pm to 11:51 pm on the Date of Arrest, the Defendant admitted the offence, and stated that he spent all the stolen money on gambling and repaying his debts. 

Mitigation

10.  The Defendant is now 46 years old.  He was born in mainland China and came to Hong Kong in 1981. He has been educated up to Secondary 5. He is married, with three sons, aged 24, 22 and 18 respectively. All are still in full-time education. His second son suffers from severe congenital intellectual disability and physical impairment, is unable to care for himself and requires constant supervision. The Defendant had been the sole breadwinner for the family. Before his arrest, he worked for many years in the construction industry and at the time of the offence, he was employed as a foreman, earning about HK$23,500 per month. After his remand, his wife had to seek employment, while his nearly 70 year-old mother now helps care for the disable son.

11.  These are the mitigating factors submitted:

(i) the Defendant pleaded guilty in the first available opportunity;

(ii) the Defendant has shown remorse by making frank admission first to Madam Tsang and later to the Police;

(iii) the Defendant committed the present offence out of desperation, as he needed money to repay the various debts he owed;

(iv) the breach of trust is that of between friends, not the worst of its kind, as opposed to that of between employer and employee;

(v) Madam Tsang has visited the Defendant in prison, and has indicated some reconciliation between the two;

(vi) the Defendant submits a mitigation letter, in which he reflects on his wrongs, while in the same time expressing remorse and asking for leniency;

(vii) the Defendant has a clear record; and

(viii) the Defendant also promised to make restitution in the future.

12.  Defence submitted the sentencing authority for theft involving breach of trust is HKSAR v Cheung Mee Kiu[2], as adjusted in HKSAR v Ng Kwok Wing[3], where when the loss was between HK$3 millionto HK$15 million, the sentence should be 5 to 10 years’ imprisonment. 

13.  Defence also submitted other relevant sentencing considerations that can be found in HKSAR v Lee Lai Kit Kitty[4], para 23:

14.  Relying on paras 14-16, SJ v Buk Chui Ying (Alias Buk Hiu Kwan)[5], defence further submits that the present case is, at best, a borderline breach of trust case, the Court is entitled to depart from the guidelines and adopt a lower starting point.

15.  In the present case, although the Defendant is not able to make restitution at the time of sentence, it is submitted the Court can consider a starting point lower than that of 5 years’ imprisonment.

Background Report

16.  The background report shows the Defendant was born in the Mainland and settled in Hong Kong at his toddler age. He had an uneventful upbringing and eventually went to study in Australia for high school. When the Defendant was around 20, he returned to Hong Kong and worked at his father’s construction company. He worked in the industry for 20 years until his remand in custody.  However, starting in 2022, he started associated with bad peers and became addicted to drugs and gambling, which strained relationship with his family. Towards the present offence, the Defendant claimed that he was in dire financial straits and hence committed the present offence. He used up the stolen money on gambling, drug taking and paying off his debts to friends. He undertook to lead a law-abiding life in the future. 

Consideration

17.  This case is a theft of over $HK3 million. If this is a breach of trust case, according to the guidelines as stated in the authorities submitted by the defence, the starting point should be 5 to 10 years’ imprisonment.

18.  Defence now submitted that this is a borderline case of breach of trust, and asked the Court to adopt a lower starting point. When considering whether this is a breach of trust case, I have considered HKSAR v Poon Kar Yue[6], para 26 where Macrae VP said

“It is a well‑established principle of sentencing that where there exists a relationship of trust between a defendant and the victim of his crime, his criminality is seen in more serious terms, justifying a more severe, or different type of, sentence. The classic examples of such a relationship are an employer and employee, a professional and client, customer or patient, a teacher and pupil and a parent and child. However, there are other types of relationship which, depending on the facts and circumstances, may also fit within these categories; for example, a pastor and a member of the congregation, a police officer and a citizen and, in respect of a child, anyone who stands in loco parentis or an adult relative or friend of the family. There is also a relationship of trust between spouses, family members and close personal friends or colleagues. The defining quality of such relationships is that, by virtue of a person’s position or authority, he is entrusted with access to something or someone he would not otherwise have, which he then misuses or abuses for his own personal advantage or pleasure.” (emphasis added).

19.  The Defendant and Madam Tsang are friends, not employer and employee, or more typical types of relationship which we regarded as holding trust to the others. However, due to the long history of friendship between the two, the Defendant was entrusted with access to something he would not otherwise have, namely Madam Tsang’s assets, which he then misused for his own personal advantage. 

20.  The Defence relied on the Buk Chui Ying case to suggest this is a borderline breach of trust case, which the Court is entitled to depart from the guidelines. In the Buk Chui Ying case, the Respondent was not the personal friend of victim. Rather, she was the secretary of the victim’s friend.

21.  In our case, the assets is entrusted to the Defendant because of the intimate relationship between the victim and the Defendant. I find this is a breach of trust case. Even if this is not strictly a breach of trust case, I find there is no distinction of any real significant between the nature and manner of this theft and a breach of trust case. 

22.  I have also considered the following factors before sentencing:

(i) Madam Tsang treated the Defendant as a friend, whom she entrusted her property to him;

(ii) the Defendant started misappropriated the money from 22 September 2023 and continued until 17 January 2024, for a period of just less than 4 months;

(iii) the amount of money involved is just over HK$3 million;

(iv) the Defendant used the money on gambling and to repay his debt;

(v) the Defendant has a clear record; and

(vi) According to the Background Report, the Defendant is addicted to drugs. However, given the severity of the offence, Drug Addiction Treatment Centre would not be a viable option for sentence. Therefore, I do not consider it is appropriate to obtain a DATC report.

23.  Considering all the above, I consider immediate imprisonment is the only sentencing option.  A starting point of 5 years’ imprisonment is appropriate. Given his guilty plea, a 1/3 discount is appropriate.

24.  The Defendant in his own initiation told Madam Tsang on 18 March 2024 that he had utilized money from her HSB Account, which led to the discovery of the offence.  It is akin to surrendering.  Therefore, I give the Defendant a further 3-month discount.

25.  I have considered his mitigation and mitigation letters, I found no other mitigating factors that warrant a further discount.  Therefore, the sentence is 37 months’ immediate imprisonment.