HKSAR v. CHOI YE IN

DCCC 1028/2021

[2023] HKDC 54

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1028 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to seven charges of theft.

Summary of facts

2.  PW1 operated a jewelry business in Korea and set up a branch in Hong Kong.

3.  The defendant was the only employee in the Hong Kong office.  The defendant had the key, the passcode of the safe in the office and the password of the company’s online banking account.

4.  On 26 July 2017, PW1 visited the Hong Kong office.  The defendant provided a weekly financial report covering the cash, bank balance and the expenditure for the fourth week of July 2017 for review. 

5.  When PW1 noticed there were expenditure of HK$288,000 and US$199,340, the defendant confessed that she had spent the money to settle her husband’s medical bills in Korea and the debts she owed to her friends.  She transferred part of the money in the company’s account to her personal account, she also took some cash from the company safe in the office.

6.  PW1 checked the company bank account at China Construction B`ank and found a total of USD $58,200 were being transferred out as follows: -

(a)  Charge 1: US$20,000 on 10 July 2017

(b)  Charge 2: US$$9,600 on 11 July 2017

(c)  Charge 3: US$20,000 on 13 July 2017

(d)  Charge 4: US$8,600 on 17^th July 2017

7.  The defendant further confessed to PW1 that she took cash from the company safe and the total sum was HKD$ 288,000 and US$ 141,140 as follows:-

(a)  Charge 5: HK$256,000 on 17 July 2017

(b)  Charge 6: US$141,140 on 20 July 2017

(c)  Charge 7: HK$32,000 on 21 July 2017

8.  On 1 August 2017, the defendant confessed to the accountant from the Korean head office that she had stolen the above mentioned amount from the company.

9.  The defendant also provided a confession note that she has stolen the money from the company.

10.  The defendant also provided a promissory note dated 1 August 2017 that the defendant would repay the company’s money before 30 September 2017.

11.  The defendant also showed a wire transmission record dated 24 July 2017 that a sum of US$100,000 was transferred from the defendant’s bank account to her husband bank account in Seoul.

12.  The defendant was terminated on the same day.

13.  On 11 August 2017, PW1 reported the case to the police.  The defendant was arrested on 9 November 2017.

14.  The defendant did not make any repayment to PW1’s company.

Mitigation

15.  The defendant has a clear record.

16.  She is 43 years of age, married with 3 children.  They are between 8 to 15 years old.  She is previously a lecturer in Korea University.

17.  The defendant was employed in the victim company to take care of its business in Hong Kong since April, 2017 and she received a salary of $18,000 per month.

18.  The defence mitigation focused substantially on the point of delay.  From the discovery of the offences to the time she was brought to Court, there was a period of 4 years.

19.  Chorology of events: -

Date	Event
July 2017	The defendant committed the seven charges of theft
August 2017	PW1 reported the matter to the police
November 2017	The defendant was arrested
October 2021	The defendant was charged
March 2022	The defendant indicated her guilty plea

20.  The defendant committed the present offences due to her husband’s ill health at that time.  She used the stolen money to pay the medical bills to treat her husband’ cancer.  He had received treatment since 2015 to 2017.

21.  In August 2020, her husband had an emergency operation for acute cholecystitis.

22.  In November, 2021, the doctor found out that their youngest son has a cyst in his brain.

23.  All their 3 children preform extremely well academically in Hong Kong band one school.  Understandably, they need the defendant’s support in their young age as they do not have relatives in Hong Kong.

24.  The family is now receiving CSSA $20,000 per month from the Hong Kong Government.  The husband is unemployed since the outbreak of the pandemic.  Nonetheless, the defendant is determined to pay back the stolen money to the victim’s company.

25.  There are a number of letters to tell me that the defendant is a loving mother, wife and a very supportive friend to the members of the church.  I am also told this morning that the church funds her legal fees in the present proceeding.  In their eyes, she has an impeccable and positive character.  They are all shock to find out that she committed the present offences.  It was totally out of her character.

26.  The defendant in her own letter tells me that she was so shameful of her own conduct, she has attempted suicide in 2017.

27.  Today, I have been provided with medical reports that the defendant in fact suffers from reactive anxiety-depression, partly due to the infidelity of the husband in 2018.  They still stay as a couple for the sake of the children.

28.  All in all, the defence asked for a suspense sentence or substantially reduce the sentence so that the defendant only needs to serve a short period of imprisonment.

Sentence

29.  When I pass sentence on the defendant, I bear in mind of all mitigating factors which have been advanced by the defence.

30.  It is a classic case of breach of trust.  The sentencing guideline of HKSAR v Cheung Mei Kiu [2008] 1 HKC 113 applies:-

a. Less than $250,000 – less than 2 years

b. $250,000 to 1 million – 2 to 3 years

c. $1 million to $3 million – 3 to 4 years

31.  Both the defence and the prosecution agree that the following amounts being converted into Hong Kong dollars in respect of charge 1 to 4 and 6, charge 5 and 7 are in Hong Kong dollars:-

Charge	Amount in USD	Amount converted into HKD	HKD
1	$20,000	$156,600
2	$9,600	$75,168
3	$20,000	$156,600
4	$8,600	$67,424
5			$256,000
6	$141,140	$1,104,079
7			$32,000
Total	$199,340		$288,000

32.  The total stolen sum for the 7 charges was about HK$ 1,847,871, just below 2 million.

33.  There were 3 big topics that the defence focus on mitigation:-

a. Delay

b. Public interest and policy

c. Personal family circumstances

34.  The whole reason to steal was because of her husband suffered from cancer and the family simply could not afford to pay for the medical bills.

35.  Financial hardship is never a mitigating factor.

36.  In terms of delay, the prosecution has prepared a timeline table to inform me as to the progress of the investigation.  I can see that the police had actively conducting their investigations without delay.

37.  The defence also said that she had made full confession to the owner of the jewelry company in July 2017 and that saved the police in further investigation.  However, the police are still required to do its investigation to know the full extent of the case, bearing in mind that this case also involved witnesses from Korea, such as PW1 and 2.

38.  It was also difficult to locate the husband of the defendant to go to the police station to give a statement as he was in Korea. He eventually gave a statement in the end of March, 2019.

39.  In July 2019, the investigation file from the police was ready and it was sent to the DOJ for legal advice.

40.  It was due to the heavy workload of the first advising counsel that the file was subsequently transferred to the second DOJ counsel for legal advice in September 2021.

41.  That means a period of about 2 years and 2 months without any action.

42.  One can understand that the file was sent to DOJ at the time when Hong Kong was met with social events.  All the DOJ counsel were very busy.

43.  The Defendant was eventually charged in October, 2021.

44.  The time line from then onward is regarding the Court’s diary and parties availability to set down the hearing date.

45.  I accept that there is a period of delay at least for a period of 2 years and 2 months.

46.  On the other hand, I also accept that from July 2017 to today, a period of 5½ years, is a long time and that the defendant has been subjected to mental pressure awaiting for the result of this case.

47.  The defence also preyed in aid of the fact that the children of the defendant were 2,4 and 9 respectively then.  Now they are 8,10 and 15.  The defence said that had this case been handled expeditiously, even the defendant had to serve a period of imprisonment, the children might not have known about it.

48.  They all live in Hong Kong in the same household unit, how can the defendant explain to her children for a period of absence?  They are all bright and smart children, surely they would ask the right questions to find out the true reason for her absent from home.

49.  When the defendant embarked on this criminal activities in July, 2017 on 7 occasions to steal money from her employer, it must have come across her mind that this matter would be discovered eventually.  It was only a matter of time.

50.  1.8 million was a substantial sum and she had no way to hide it.  What plausible justification could she provide to her employer when confronted with the missing money?

51.  She knew in her mind that it was a serious matter.  Once when the employer reported her to the police, she would face a jail term.

52.  What I can say is that when she committed these offences, she should have thought about the consequences that she would bring upon her family.  Her children will suffer.  They have no relatives in Hong Kong, they depend upon her for emotional support and I am sure she loves them dearly.

53.  In such circumstances, the defence said that it would be justifiable to prevent a custodial sentence on the ground of public policy.  I disagree.

54.  If I impose a non-custodial sentence, I send a wrong message to the public that the court will not condone this kind of illegal activities once it was delay and on the ground that the children will suffer if their mother is sent to jail.

55.  Then everyone comes before the court can plead mitigation on this ground.  This is totally contrary to public policy.

56.  The defendant was employed to work in the Hong Kong branch 3 months prior to this incident.  She had access to the online banking account, the passcode to the safe in the office.  She knew how much was in the account and in the safe.  There was no one in the office to supervise her.  She knew then and she also knows now that she breached the trust that the victim company had placed on her.  It is a very serious breach of trust.

57.  She came to Hong Kong in 2006 and that was the only job she ever had, her monthly salary was only $18,000, it would take her roughly about 8.5 years to earn 1.8 million.  The temptation to misappropriate the company fund was just too great and she could not resist the temptation to steal one time after the other within a period of 11 days.

58.  The defence said that the defendant is still hoping to pay back to PW1. Since 2017, she only managed to pay $11,000.  It is an insignificant amount in term of restitution.  The defendant simply has no financial resources to meet the payment.  Anyone can see that there is no prospect for the defendant to pay back the 1.8 million to the victim company.

59.  The defence ask for non-custodial sentence, I disagree. Against this background, the only sentencing option is a term of imprisonment.

60.  The total stolen amount of the 7 charges is about 1.8 million, according to the guideline in Cheung Mei Kiu, between 1 million to 3 million, it falls into a sentencing bracket of 3 to 4 years.  However, I still need to impose individual sentence on each charge.

Charge	Starting point	After 1/3 discount	Totality
1	18 months	12 months	1 month from Charge 1 to 3 to run consecutively to Charge 6
2	9 months	6 months
3	18 months	12 months
4	9 months	6 months	Charge 4 and 5 to run concurrently and 1 month to run consecutively to Charge 6
5	2 years	16 months
6	3 years	2 years
7	6 months	4 months	1 month to run consecutively to Charge 6

Totality

61.  Charge 4 and 5 were committed on the same date.  I order the sentences to run concurrently.  A total of 16 months in these 2 charges.

62.  I order 1 months from charge 1 to 3, 7 and 1 months from the 16 months from charge 4 and 5, a total of 5 months, to run consecutively to charge 6.  It arrives at a total of 2 years 5 months.

Discount

63.  I now come to deal with the issue of delay.  As said previously, there was a delay of 2 years 2 months.  I further discount 3 months from the total sentence.

64.  I further discount 2 months that the defendant has suffered from mental stress that this case takes 5½ years for her to know the result.

65.  The total discount is 5 months.  The final sentence is 2 years.

Order

66.  The defendant is to serve a sentence of 2 years.