HKSAR v HOU HSIAO CHUAN

DCCC 36/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 36 OF 2013

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 6 charges of "Theft". She has stolen a total of $1,847,000 from her employer over a period of almost 4 years.

Summary of Facts

Background

2.  Mr. LEUNG (PW1) was the proprietor of 3 construction materials trading companies, namely Sundart International Limited ("Company 1"), Win Venture Trading Limited ("Company 2") and Sundart International (Macau) Limited ("Company 3").

3.  Companies 1 to 3 held the following bank accounts :

(i) Account No.808-139968-001 held by Company 1 ("Account 1") with The Hong Kong and Shanghai Banking Corporation Limited ("HSBC");

(ii) Account No.808-204689-001 held by Company 2 ("Account 2") with HSBC;

(iii) Account No.368-0-074014-5 held by Company 1 ("Account 3) with Standard Chartered Bank (Hong Kong) Limited;

(iv) Account No.861-502023698 held by Company 2 ("Account 4") with Industrial and Commercial Bank of China (Asia) Limited;

(v) Account No.016-478-78-111-7145 held by Company 1 ("Account 5") with DBS Bank (Hong Kong) Limited ("DBS"); and

(vi) Account No.016-478-78-135-3299 held by Company 3 ("Account 6") with DBS.

PW1 and his son (PW2) were the only 2 signatories of these bank accounts.

4.  Since May 2006, the defendant was employed by PW1 as a shipping supervisor of Company 1.  Her duties included handling banking matters in relation to the bank accounts of Companies 1 to 3.  PW1 entrusted the defendant with the cheques and chops of his companies.  She would prepare cheques and send them to PW1 or PW2 for signatures.

5.  The defendant had a bank account (No.469-0-009348) with HSBC ("the defendant's Account").

Discovery of the offences

6.  On 17 March 2011, PW1 received an email sent from the defendant's email address.  In the email, the defendant confessed that she has wronged PW1 and that she could not repay the debt owed to him during this lifetime.

7.  PW1 checked with his staff and discovered that the defendant had not been showing up for work since 14 March.  Fraudulent transactions were found upon an initial check of the companies' bank accounts. The Police was alerted and the matter was investigated.

Charge 1

8.  Between 12 May 2007 and 18 December 2010, 42 cheques were used to withdraw sums which amounted to a total of $785,000 from Account 1.  The said sums were deposited into the defendant's Account.

Charge 2

9.  Between 1 September 2007 and 3 March 2011, 42 cheques were used to withdraw sums which amounted to a total of $910,000 from Account 2.  The said sums were deposited into the defendant's Account.

Charge 3

10.  On 11 March 2011, the defendant used a cheque to withdraw $50,000 cash from Account 3.

Charge 4

11.  On 12 March 2011, the defendant used a cheque to withdraw $10,000 cash from Account 4.

Charge 5

12.  On 12 March 2011, the defendant used a cheque to withdraw $50,000 cash from Account 5.

Charge 6

13.  On 14 March 2011, the defendant used a cheque to withdraw $42,000 cash from Account 6.

14.  The signatures on all of the cheques mentioned above were forged.  Neither PW1 nor PW2 signed any of them.

Arrest of the defendant

15.  The defendant returned to Hong Kong from Taiwan on 21 March 2011.  She was stopped at the Hong Kong airport and arrested by the Police on the same day.

16.  The notebook computer seized from the defendant at the time of arrest was examined.  The confession email received by PW1 was retrieved therefrom.

Mitigation & Sentence

17.  The defendant is now 45, married with a son (aged 13) and has a clear record.  She came to Hong Kong from the mainland in 1973 and completed F.5 education in Hong Kong.

18.  Mr. Mughal submitted that the defendant committed the offences because she discovered her husband having an affair. Her mind was disturbed and she took the money from her employer on a spending spree.  She was distressed by her own wrongdoing, so she sent an email to PW1 to confess.  She then ran away to Taiwan.  Her husband begged her to return.  A bundle of mitigation documents was submitted; their contents are duly noted.  I am also aware of the defendant's psychiatric condition.  Finally, Mr. Mughal submitted that the defendant was arrested in March 2011, but was not charged until December 2012.  She has been living under a shadow in the past 20 odd months. 

19.  This case is a classic Barrick type of breach of trust situation.  The defendant stole money from her employer.  I understand that the defendant might have had her personal problems, but they are not excuses for committing the present offences.  In this case, PW1 and his companies are the most innocent parties.  They suffered a substantial monetary loss and the defendant simply does not have the means to compensate them.

20.  According to HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017, if the amount stolen by an employee is $1 million to $3 million, the sentence should be 3 to 5 years' imprisonment.  The defendant has stolen a total of $1,847,000 in Charges 1 to 6.  I consider a global starting point of 3.5 years' imprisonment to be appropriate.  With the guilty pleas, the sentence is reduced to 28 months.  Given the time span of the offences and the number of payments involved, I accept that it takes time to identify and trace the cheques forged by the defendant; however, a period of 21 months from arrest to charge, in my view, is longer than necessary.  Hence, I will grant a further discount of 2 months to reflect the delay, bringing the sentence down to 26 months.

21.  To achieve this overall sentence, for Charges 1 and 2, I adopt a starting point of 2.5 years' imprisonment each.  For Charges 3 to 6, 9 months' imprisonment each.  A one-third discount is given for the guilty pleas, reducing the sentences to 20 months each for Charges 1 and 2; and 6 months each for Charges 3 to 6.  Bearing in mind the totality principle as well as the discount for the delay, I order :-

(i) the sentences for Charges 1 and 2 to run concurrently; and

(ii) the sentences for Charges 3 to 6 to run concurrently, but consecutive to Charges 1 and 2;

thereby arriving at a total prison term of 26 months for all 6 charges.