HKSAR v. KWOK WING YEE

DCCC 227/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 227 OF 2017

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REASONS FOR SENTENCE

1.  Kwok Wing Yee you have pleaded guilty to four charges of theft, contrary to section 9of the Theft Ordinance[1] and one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance[2].

2.  Full particulars of the offences are set out in the facts admitted by you today.  In summary on four occasions between February 2010 and October 2013 you stole money from Can Valero Investment S.A., a company registered in Panama.

3.  Takao Nishihara the president of Can Valero also set up Pan Asian Marine Corporation Limited in Hong Kong and Twerton Limited in the British Virgin Islands.  Pan Asian Marine was responsible for arranging ships to be repaired and managing Can Valero and Twerton.

4.  In 1995 you joined Pan Asian Marine as an account clerk.  Your duties included handling the banking for Pan Asian Marine and Twerton. 

5.  Due to the president frequently travelling overseas he entrusted you together with Ms Yiu Lai Lai, another employee of Pan Asian Marine, to look after the financial matters of Can Valero including assigning you and Ms Yiu in September 2008 to be the signatories of Can Valero’s bank account held with HSBC.   

6.  Transfer of monies from the account required the prior approval of the president and the signatures of both you and Ms Yiu.  For convenience Ms Yiu signed some blank cash transfer receipts for the daily business of Can Valero. 

Discovery of the theft

7.  Between 2012 and 2014 you frequently had to take sick leave during which time you would return to the office and take away the banking documents of Can Valero.  Due to your absence a new accounting staff was employed in 2013 to take over your responsibilities.  The new staff however was unable to follow how you handled Can Valero’s banking affairs because of a lack of documents and records. 

8.  Towards the end of 2013 Ms Yiu became suspicious that you had stolen money from Can Valero’s HSBC account.  When Ms Yiu made enquiries with you, you told her that money was transferred from the HSBC account and placed on fixed deposit.  In support you showed Ms Yiu a Time Deposit Disposal Advice purportedly issued by HSBC confirming the deposit.

9.  Ms Yiu reported her suspicion to the president who asked you for an explanation.  You told the president that money was used for investment.  Before reporting the matter to the police the president gave you the opportunity of returning the money to the company. 

10.  On the 23 and 25 October 2013 you transferred a total of JPY30,000,000 to the business partner of the president, which repayment was insufficient. 

11.  By May 2014 no more money had been returned therefore the president instructed Ms Yiu to check the HSBC account.  Ms Yiu discovered that on four occasions between February 2010 and October 2013 you had transferred money from the account to your own personal account.   

12.  You transferred US$22,800 on 3 February 2010; US$115,000 on 4 October 2010; US$385,000 on 8 August 2011; and JPY38,000 on 25 October 2013.  The Hong Kong equivalent of the total amount stolen is said to be $4,080,780.

13.  No money had been placed on fixed deposit.  The bank advice you showed to Ms Yiu was a false instrument with many spelling mistakes including Hongkong and Kowloon misspelt.   

14.  By July 2015 the company could no longer contact you and you had not repaid the outstanding balance.  A report was therefore made to the police, who subsequently arrested you on 14 December 2016.

Mitigation

15.  I have carefully considered everything said on your behalf by Mr Chan together with your mitigation letter and the letter written by your father.  I take into account your clear record.

16.  In 2012 you were diagnosed to have multiple sclerosis (MS)[3].  Mr Chan informs the court that while in custody you have received proper medical care and when necessary have been referred to Dr Lau, consultant neurologist at the Princess Margaret Hospital, who has treated you since you were diagnosed with multiple sclerosis. 

17.  Mr Chan tells the court you committed the offences to better look after your eldest son who has attention deficit hyperactivity disorder (ADHD).  Your father tells the court in his letter that your youngest son also suffers from attention deficit hyperactivity disorder.  The children are now looked after by your younger sister with the help of your father.  Fortunately, you have a very close and supportive family.  Mr Chan says that it is not necessary to call for a background report to look into the care of the children, who are well looked after by your family.

Guidelines

18.  By stealing the money, you breached the trust placed in you by the president.  In passing sentence, I have considered the principles laid down in R v Clark[4] as applied inHKSAR v Cheung Mee Kiu[5] as adjusted in HKSAR v Ng Kwok Wing[6]. 

19.  The guidelines state the proper starting point after trial is below 2 years where the amount stolen involves $250,000 or less; between 2-3 years’ imprisonment where the amount stolen was between HK$250,000 to $1 million; between 3-5 years’ imprisonment where the amount stolen was between HK$1-3 million and between 5-10 years’ imprisonment where the amount stolen was between HK$3-15 million.

20.  Taking into account the amounts stolen and the degree of trust reposed in you as the accounting clerk, I am satisfied the proper starting points after trial are 2 years’ imprisonment on charge 1; 2 years and 9 months’ imprisonment on charge 2; 5 years’ imprisonment on charge 3; and 6 months’ imprisonment on charge 4. I am satisfied the proper starting point after trial for using a false instrument is 1 year and 6 months’ imprisonment.

21.  Giving you full credit for your pleas of guilty reduces the sentences to 1 year and 4 months’ imprisonment; 1 year and 10 months’ imprisonment; 3 years and 4 months’ imprisonment; 4 months’ imprisonment and 12 months’ imprisonment.

22.  Taking into account that in October 2013 you repaid JPY30,000,000 (the equivalent of about HK$2.1 million), just over half of the sum stolen, I reduce the sentence on charge 3 by 8 months to 2 years and 8 months’ imprisonment. 

23.  Taking into account the total amount stolen is just over HK$4 million; and the thefts took place in three different years, the last theft being on the same day you also returned money to the company, I am satisfied an overall starting point after trial of 5 years and 6 months’ imprisonment is appropriate. 

24.  Full credit for your pleas of guilty reduces the overall sentence to 3 years and 8 months’ imprisonment, which is further reduced by 8 months to 3 years’ imprisonment on account of repaying JPY30,000,000 in October 2013.    

25.  Although using a false instrument isa separate offence, taking into account this was used to cover up your dishonesty and the totality of sentence to be served by you, I am satisfied a concurrent sentence is appropriate for charge 5. 

26.  You are convicted and sentenced as follows:

Charge 1 - 1 year and 4 months’ imprisonment;

Charge 2 - 1 year and 10 months’ imprisonment;

Charge 3 - 2 years and 8 months’ imprisonment;

Charge 4 - 4 months’ imprisonment; and

Charge 5 - 12 months’ imprisonment.

27.  I order the sentences on charges 1, 2, 3 & 5 to be served concurrently and the sentence on charge 4 to be served consecutively making a total sentence to be served by you of 3 years’ imprisonment, which I am satisfied properly reflects your criminality on the five charges.  

[1] Cap 210.

[2] Cap 200.

[3] See the medical report of Dr Lau Kwok Kwong.

[4] (1998) 2 Cr App R 137.

[5] [2006] 4 HKLRD 776.

[6] [2008] 4 HKLRD 1017.