HKSAR v. LIU MAN GIU

DCCC970/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 970 OF 2008 

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Reasons for Sentence

1.  The defendant in this case pleaded guilty to 16 charges of agent using documents with intent to deceive his principal.  They are charges 1, 2, 3, 6, 7, 10, 11, 13, 15, 16, 17, 18, 19, 23, 24 and 25.  The other charges were left on court file, upon the request of the prosecution.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, background of the defendant and mitigation put forward on his behalf.

2.  The facts of the case are simple.  At all material times, the defendant was employed by the Hong Kong Young Women’s Christian Association as a project manager.  He was responsible for providing technical advice and assistance for construction and renovation works carried out at various schools and community centres managed by the YWCA.  One of his duties was to invite quotations and make recommendations to his employer for selection of contractors in respect of those construction repair and renovation works.  To do so, the defendant had to collect sufficient quotations from different contractors, prepare summaries of price comparison, quotations analysis and/or quotation recommendations and submit the same for approval.

3.  Between December 2005 and August 2007, for numerous projects the defendant handled for YWCA, he had invited quotations from different contractors.  He, however, did not submit those quotations for consideration and approval.  Instead, he prepared false quotations in the name of those contractors with inflated prices, and he prepared quotations with lower quoted prices purported to be issued by the following companies:  New Century Company and Leader Engineering Company, which were both solely owned by the defendant’s wife, and K & K Services Company, which was solely owned by the defendant’s younger sister.  All these companies were under the defendant’s control.

4.  The defendant then prepared and submitted summaries of price comparison and/or quotation recommendations, stating therein information of such false quotations for YWCA’s approval.  In reliance on the information provided by the defendant, YWCA approved contracts be awarded to the contractors invariably recommended by the defendant, that is, the companies under his control.

5.  Once the defendant secured the contracts, he subcontracted the works out at much lower prices to the actual contractors, namely, Fortunate Decoration Service Company Limited and Kwong Kee Engineering Company.  The defendant pocketed the differences between the fee paid by YWCA and the fee the company controlled by him to the real subcontractor as his own gains.  As a result, the defendant pocketed a secret profit in the region of $800,000.

6.  Having regard to the role the defendant played in the organisation and in the tasks, this is a very serious case of breach of trust.  From December 2005 to August 2007, over a period of more than 1½ years, the defendant had on 16 occasions used the same method to deceive his employer.  There were pre-planning and forgery of documents.  His acts caused quite substantial loss to this charitable organisation.  The secret profit he pocketed was in the region of $800,000.  It was accepted by the defence that this reflected more or less the loss suffered by the defendant’s employer as a result of his deception.

7.  The defendant is a first offender.  He will be 52 years of age tomorrow.  He is married with a son now 15 years old.  They have been living together.  The defendant lost his job after this case.  His wife is also unemployed.  The family is relying on a monthly CSSA allowance of about $9,000 per month.

8.  Various members of the family are suffering from ill health.  The defendant himself is suffering from depressive symptom and anxiety.  He is under medication for borderline hypertension.  His wife has been suffering from panic disorder since 2005 and is on regular medication.  Last year, she underwent an operation to remove her gall bladder.  Then she developed eye symptoms and is receiving therapy for glaucoma.

9.  Both of the defendant’s parents-in-law are aged.  His father-in-law has been suffering from vascular dementia and is not self-dependent.  I am told that his mother-in-law is also suffering from the same physical problem though of a lesser severity.  I am told that the defendant has been looking after the aged couple and provided them much physical help because his wife is less capable due to her own health problem.

10.  The defendant’s son is doing well both academically and in extracurricular activities.  I am convinced that the defendant is a caring and responsible father.

11.  The defendant and his wife have started to perform voluntary work last year.  The defendant is very remorseful and wishes to compensate his misdeed by this work since he has no financial means.

12.  The maximum sentence for the offence is seven years’ imprisonment and a fine of $500,000.  In sentencing, I have had regard to cases such as HKSAR v Lau Shiu Kong [1999] 3 HKLRD 121 and Secretary for Justice v Leung Yat Ming, CAAR9/98.

13.  The present case involves no element of corruption or bribery, but it involved a breach of trust.  I bear in mind also the cases like HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Kwong Shiu To [2006] 2 HKLRD 272 and the factors relevant in consideration of sentence in this nature of case as set out in R v Barrick [1985] 7 CAR 142.

14.  In all the circumstances, I am of the view that immediate custodial sentences are inevitable.  I adopt the following starting points:  6 months for Charge 16, 9 months for Charge 17, 12 months for Charges 1, 2, 3, 6, 10, 11, 15, 18 and 24, 15 months for Charges 7 and 19, 18 months for Charges 23 and 25, 2 years for Charge 13.

15.  The defendant pleaded guilty.  He is, of course, entitled to have one-third discount from each charge.  In the light of what I am told in mitigation, in particular bearing in mind the health concern of family members of the defendant and their reliance on him, as a matter of clemency, I will give him some further discount.

16.  I impose the following sentences:  Charge 16:  3 months; Charge 17:  5 months; Charges 1, 2, 3, 6, 10, 11, 15, 18 and 24:  6 months for each.  For the sake of convenience, I will describe the abovesaid charges as the first set of charges.

17.  And the following will be the sentences imposed on the second set of charges:  Charges 7 and 19:  7 months for each; Charges 23 and 25:  10 months for each; and Charge 13:  12 months.

18.  There were 16 separate incidents.  Wholly concurrent sentences are not appropriate as a matter of principle.  Having regard to totality, I make the following order:  the sentences imposed on each charge in the first set of charges to run concurrently; the sentences imposed on each charge in the second set of charges to run concurrently but the aggregate to run wholly consecutive to the first set of charges, making a total sentence of 18 months’ imprisonment.

19.  The prosecution also applies under section 12(1) of the Prevention of Bribery Ordinance for an order requiring the defendant to pay to its employer the amount of advantage received by him.  In consideration, I have had regard to submission by learned counsel.  I have also had regard to the following cases.

20.  In the case of Sher Ka Kit, Joseph v R, Criminal Appeal No. 178 of 1978 and R v Li Fook Shiu [1991] 2 HKLR 288, it was held that it was mandatory for the courts to make such a restitution order although the amount of the order is at the courts’ discretion.  In the case of Caltex Oil Hong Kong Limited v Deputy District Judge Christie & Attorney General, HCMP542/1994 and AG v Leung Kin Wai [1996] 4 HKC 588, it was held that the beneficiary of such a restitution order shall be the principal of the acceptor.  It was held in HKSAR v Lui Kin Hong Jerry, No. 2 [2001], 2 HKC 513 and AG for Hong Kong v Reid [1994] 1 AC 324, that it was not necessary for the courts considering restitution to take into account the means of the acceptor.

21.  Having considered the whole circumstances, I order the defendant to pay YWCA an amount of $802,095 pursuant to section 12(1) of the Prevention of Bribery Ordinance.