HKSAR v. DOO SHUI-KI

DCCC 245/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 245 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of 5 charges of theft.

2.  All the charges involve a breach of trust, as the thefts were from her employer.  All the thefts were of choses of action belonging to the employer in the form of cheques.

3.  The defendant was employed by a company called Billion Rise Engineering Limited.  It does work of painting on construction sites.  She was employed as a clerk responsible for handling the payroll matters for various painting workers, and she would issue letters of authorisation for the payroll which include the list of the painting workers, and those were endorsed and signed and authorised to make salary payments.

4.  In January of 2013, the defendant left the company after another clerk was hired, and whilst the other clerk investigated matters and found that salary payments had been made to people who were unknown to the company, inquiries were made of the defendant at the time.  She confessed she had altered the information on the payroll authorisation to obtain extra salaries.

5.  It was found that on occasions between January 2011 and January 2013, the company had paid purported salaries to four persons who were not entitled to salary as they had never worked for the company.

6.  Two payments had been made to a person called Wong; they form the 2nd and 4th charges.  Payments had been made to a person called Chung; that forms the 1st charge; payment made to another person called Wong, which constitutes the 3rd charge; and payment to a person called Lee constitutes the 5th charge.

7.  The defendant eventually admitted under caution that she stole the money from the company’s bank account.  She said it was because of greed and fondness for gambling, and she had lost all the money.

8.  There was a later record of interview, and she said she had lost some 1.3 million in gambling, and she had added the names and bank accounts of four of her friends to the payroll list, and they had received the purported salaries; and in doing so, she managed to settle the debts that she owed to them. 

9.  In fact, the total amount set out in the 5 charges is just over $1 million:  $1,056,234.

10.  Those are the bases of the facts admitted by the defendant.

11.  She is now aged 27.  She has been married, but is now cohabiting with another person.  Her antecedents report says that she is currently in good health, but there does seem to have been some medical history in the past where she has suffered from paralysis and also heart problems.

12.  Because of the matters raised in mitigation, I obtained a background report on her and also a medical report.  The medical report makes some reference to her previous history.  She had congenital heart disease diagnosed since infancy and followed up at the Queen Elizabeth Hospital, but fortunately, that condition appears to have resolved itself spontaneously.  She has also had hernia repair on the left side while she was a child.  There is also, according to the report, a history of paralysis of her right lower leg with weakness and paralysis which required her to have a lengthy stay in Yan Chai Hospital while she was a child.  This was as a result of an injection of medicines causing nerve injury to her sciatic nerve.  It is said the recovery has been complete and spontaneous, but, as I understand, there is an ongoing litigation in respect of the disability that she suffered from that.

13.  The background report gives a clear history of the defendant.  It says that at present she shows remorse for making mistakes and attributed her committing these offences to greediness.  She says she needed money for medical expenses for her right leg, and also, she says, for what she describes as fun‑seeking behaviours which, from the report, we can see involved consumption of dangerous drugs.  So she has learnt her lesson, willing to bear the legal consequences for her behaviour; she wants to kick her ties to what are described as vice peers and kick her drug habit. 

14.  She is still a fairly young lady, and clearly could turn her life round if she wishes to do so.  She says she has a positive influence now from her present cohabitant, and lives a more simple life as a result of her relationship with him.  She regrets her criminal acts, and promises to reform.

15.  She does have a minor criminal record relating to possession of dangerous drugs and also some motor vehicle offences and she has been placed on probation in 2009.  Those criminal matters do not seem particularly relevant to sentencing today.

16.  As far as mitigation is concerned, Mr Wu in mitigation has been frank about the defendant.  He refers to her age, 27, and her unfortunate medical history which somewhat blighted her childhood.  He acknowledges that there has been no restitution made; that the case involves multiple offences over a period of time; they certainly involve a breach of trust; but he says the defendant has been co‑operative since the matter was put to her, both to the company and to the police.

17.  She was first interviewed some time in 2013, arrested in March 2013, yet in September of that same year, she was released on police bail.  At the time she was told she may be prosecuted.  She was not re‑arrested until December of 2016, which is some three years and three months later, so there has been a considerable delay in the prosecution of the matter.  Whatever the reason for that, it would appear that the police were in some difficulty in obtaining proper instructions and assistance from the victims.  It still means the defendant has had to live with these charges against her basically up until today in 2017, so she is entitled to some consideration in respect of that, considering the stress and difficulty it must have caused.

18.  As far as mitigation is concerned, I am asked to take into account that delay, and also what we do know about the defendant’s previous medical condition, which is set out briefly in the report from the Correctional Services Department.

19.  As far as the starting point for sentence is concerned, the defendant’s case involves a breach of trust, and a breach of trust where, in total, a sum of over $1 million was obtained from her employer.  There is a guideline sentence in respect of that which says that where the figure is between 1 to $3 million, that a starting point for sentence of between 3 to 4 years’ imprisonment would be appropriate.

20.  It would appear to me it would be best in this case to resolve on an overall figure for sentencing, determine what the appropriate overall figure is, and then allocate the sentence within the 5 charges that exist.  Clearly, the sentence I impose must reflect the overall amount that has been taken during the course of this crime.

21.  I see no reason, in determining the initial starting point for sentence, for departing from the guideline sentence.  The figure is just over $1 million, and so that would lead to what I call an initial starting point of 36 months’ imprisonment.

22.  There are two main factors to consider in reducing the starting point:  firstly, although the defendant is not of clear record, she has no similar criminal history, and she is still a young person. She has had an unfortunate medical background.  And also the delay is a matter that can be used to reduce the starting point for sentence.

23.  What I shall do is, taking those two factors into account, I shall reduce the overall starting point that I would have taken to 30 months’ imprisonment.

24.  The defendant would be entitled, from that, to a further deduction for her plea of guilty.  That is in the region of one‑third.

25.  That calculation is quite simple, and that would lead to a final sentence for all 5 offences which would be one of 20 months’ imprisonment.

26.  I will achieve that figure by passing individual sentences as follows:

on the 1st charge, I will take a starting point at 24 months’ imprisonment, and reduce that to 16 months’ imprisonment;

on the 2nd charge, a starting point of 15 months imprisonment. I will reduce that to 10 months’ imprisonment;

on the 3rd charge, a starting point of 18 months’ imprisonment, which I will reduce to 12 months’ imprisonment;

on the 4th and 5th charges, starting points of 6 months’ imprisonment, which will be reduced to 4 months’ imprisonment;

and I will finally order that the sentences on Charges 2 to 5 be served concurrently to each other, but 4 months of those sentences should be served consecutively to the 1st charge, which will give an overall sentence of 20 months’ imprisonment.

27.  That is the sentence that I will impose.