HKSAR v. MA HING-WAI, DANIEL

DCCC930/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.930 OF 2010

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Reasons for Sentence

1.  The defendant faces 5 charges of theft, contrary to s.9 of the Theft Ordinance, Cap.210. He pleaded guilty to all charges, admitted to the summary of facts and was duly convicted.

Summary of facts

2.  The defendant was at all material times a district sales manager of an insurance agency (“AIA”).

Charges 2 and 3

3.  A Mr. Chiu was introduced to the defendant in 2003. 5 years later in May 2008, the defendant advised Chiu to invest in a certain fund in AIA. Chiu agreed and on 2 unknown days in May and July 2008 handed the defendant 2 checks in the sum of HK$780,210 (“check 1”) and HK$779,400 (“check 2”) respectively. Both checks were given to the defendant for the purpose of investment in the said fund in AIA.

4.  In early 2009, upon checking of his investment account with AIA, Chiu found out that checks 1 and 2 had never been deposited into his AIA account. They were instead deposited into the bank account of one “MA Yuk-chun, Eugene” on 6^th May and 17 July 2008. AIA never received checks 1 and 2.

5.  In June 2009, Chiu received a letter from the defendant confessing that he had stolen money from Chiu. The defendant begged Chiu not to make a report to the Police and stated in the letter that Eugene was an innocent party. The defendant also promised to repay Chiu by instalments.

Charges 1, 4 and 5

6.  Back in 2001, a Mr. Chu was introduced to the defendant. Chu had several insurance policies with AIA which were handled by the defendant’s then wife Jess who was also an insurance agent. As Jess was very busy, she had on 3 different occasions asked the defendant to collect premium payments from Chu.

7.  Chu therefore on 4^th March, 26^th September 2008 and 12^th January 2009 handed to the defendant 3 checks in the respective amount of HK$42,838, 23,330 and 53,996 to the defendant (“checks 3, 4 and 5”). Those checks were all payable to AIA and were handed to the defendant for the purpose of premium payments to AIA.

8.  Later, upon enquiries, it was revealed that the payee stated on checks 3-5 had been altered to the defendant’s name. The 3 checks were deposited into bank accounts in the defendant’s name on 4^th March, 6^th October 2008 and 19^th January 2009. AIA never received checks 3-5.

Records of interview

9.  On 24^th September and 12^th November 2009, 2 records of interview were obtained from the defendant. Under caution, the defendant admitted that Chiu did not fill in the payee of checks 1 and 2 because Chiu had been the defendant’s client for some time and the defendant had gained his trust. The defendant lied to Chiu that the money would be used to invest in a fund in AIA.

10.  The defendant admitted that in order to steal Chiu’s money, he filled in Eugene’s name as the payee in checks 1 and 2. The defendant then told Eugene that there were problems with the defendant’s bank account and had to borrow Eugene’s account to deposit checks 1 and 2 urgently. Eugene trusted the defendant and so lent him his bank account.

11.  The defendant and Eugene went to the bank together and withdrew the money deposited from checks 1 and 2. The defendant took all the money and eventually gambled most of it away in Macau.

12.  The defendant said he wrote the above mentioned letter to Chiu to ask Chiu to forgive him and not to pursue the matter. What happened was that the defendant had collected checks 3-5 from Chiu, altered the payee of the 3 checks into his own name and then deposited them into his own bank account. Part of the money was used to repay his gambling debt while he gambled the rest away in Macau.

Previous conviction

13.  The defendant has 1 previous conviction involving 5 counts of theft. He was sentenced to 44 months’ imprisonment on 16^th September 2009 in the case of DCCC740/2009. I have been provided with the charge sheet and summary of facts of that case. The 5 charges in that case are also all for theft by the defendant of his clients’ money while he was in the employment of AIA. Similar to the present 5 charges, the defendant gained the trust of his clients and then got them to hand over checks which were to be paid to AIA and then appropriated the money. The total amount stolen in that case was $4,432,245. The defendant pleaded guilty and was sentenced to a total of 44 months’ imprisonment, indicating an overall starting point of 66 months’ imprisonment. This will become relevant later on.

Mitigation

14.  The defendant is 46, divorced, with an 8 year old son and an 82 year old mother. He is a graduate of York University, Canada. He returned to Hong Kong in 1985 after graduation and joined the family garment business. When his elder brother passed away in 1986, the defendant took over the running of the business until 1996 when it was sold for $40 million dollars. The defendant received his share of $4 million and then invested the money with CA Pacific Finance, which unfortunately was liquidated in 1998 and the defendant lost all his investment.

15.  The defendant then joined AIA as junior salesperson. He worked hard and rose through the ranks rapidly. By 2002, he had already been promoted to the position of Unit Manager with an annual income of $1.3 million. It was in the same year that the defendant began to gamble, which later on cost him his marriage when he was divorced in 2004.

16.  As an insurance broker, the defendant was however doing very well. Before he left his employment in 2008, the defendant was earning about $3 million annually. Yet the defendant’s indulgence in gambling spiraled out of control and he had gotten to a point of no return and so had to begin to steal in order to fuel his gambling habit.

17.  The initial intention was for the defendant to use the money he took and use them to recoup his losses at the casino. It did not work out and the defendant’s debts escalated. Towards the end of 2008, it was totally out of control and that was the time when the stealing was worst.

18.  It is Mr. Cheung’s submission that had the present 5 charges been disclosed earlier, the defendant would have been charged together with the earlier case. Had that been the case, bearing in mind the total amount of money involved would then become $6,112,019, the possible sentence would fall within the range of the 5 to 9 years’ imprisonment band in the case of Cheung Mee Kiu.

19.  Although the defendant understands that the offences were committed on different occasions and are independent to each other, he wishes the court to consider the totality principle and allow him to serve part of his new sentence concurrently with the term that he is presently serving.

20.  It was pointed out to me that the victims in charges 1, 4 and 5 did not report the matter to the Police themselves. It was while serving his sentence for the earlier case that the defendant confessed to the Police about those 3 charges. Also, it was not until the defendant was sentenced in the earlier case that the victim in charge 2 and 3 reported those thefts to the Police, only because he was told by AIA that if he did not do so the company will not be able to compensate him for his loss. In the end, the individual victims in the 5 charges had each been compensated and the ultimate victim hence becomes AIA.

Sentencing Guidelines

21.  The total value of chose in action being stolen was $1,679,774. The defendant was the insurance agent of both Chiu and Chu at the material time of the offences and he was in breach of the trust invested in him by them. The defendant also abused his position of trust as an employee of AIA and stole large sums of money from his clients which were to be paid to his employer. This case is therefore a breach of trust case and Mr. Cheung for the defendant did not dispute this.

22.  For that, the sentencing guidelines in the case of HKSAR v Cheung Mee Kiu, CACC 99/2006 applies. For theft of between $1 million to $3 million Hong Kong dollars, starting point of between 3 to 4 years’ imprisonment is appropriate.

Sentence

23.  Although there are 5 different theft charges, the sentence should eventually reflect the overall criminality of the defendant’s actions. Had the overall criminality been reflected in one single charge, based on the amount of money stolen and applying Cheung Mee Kiu, a starting point of 39 months would have been appropriate.

24.  The defendant committed the offence to satisfy his gambling habit. I have heard the helpful submission of mitigation from counsel for the defendant but I find that there are no significant factors to allow me to depart from the guidelines sentence.

25.  In relation to charge 1, I will adopt a starting point of 6 months’ imprisonment; charge 2, 33 months’ imprisonment; charge 3, 33 months’ imprisonment; charge 4, 6 months’ imprisonment and charge 5, 6 months’ imprisonment.

26.  Bearing in mind the overall criminality, I will order that 6 months of charge 1 to be served consecutively to the 33 months of charge 2, while the rest of the sentences to be served concurrently, making the total sentence before discount that of 39 months’ imprisonment. Upon granting the defendant the full one-third discount for his guilty plea, the defendant is sentence to a total of 26 months’ imprisonment for the 5 charges.

Totality

27.  I turn now to the matter of totality. As mentioned by Mr. Cheung in mitigation, and as accepted by Mr. Chan for the prosecution, had the present case been found out earlier, the defendant would have been charged for all 10 counts together. Had that been the case, I find that I would have adopted a starting point of 75 months’ imprisonment, granting the full one-third discount would bring the sentence down to that of 50 months’ imprisonment. This is what the defendant would have gotten had the charges been dealt with together.

28.  Although it can be said that the defendant ought to have disclosed those charges earlier himself and not wait until after he was sentenced or until Chiu had reported the matter to the police, I don’t think that had the defendant been advised or known about the method of calculation of the sentences he would deliberately withhold from confessing about the other charges. He had owned up to his wrongdoing in the earlier case as well as his wrongdoing in the present case, he ought to be treated fairly.

29.  I will accordingly order that 6 months of the present sentence be served consecutively to his sentence in the case of DCCC740/2009, the rest of his present sentence to be served concurrently to the sentence in that case.