HKSAR v. CHAN OI KI

DCCC 65/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 65 OF 2016

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Reasons for Sentence

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1.  Miss Chan has pleaded guilty to two offences of theft, and they involve a breach of trust and so are serious offences.

2.  The facts that have been admitted: she was recruited by Forda Arts and Printing Company as an administration assistant in September 2015.  The owner of that company had another company called Calex, and Miss Chan was responsible for accounting and miscellaneous matters of both Forda and Calex, and she was given Forda’s online banking passwords which involved one of those devices that you get for accessing the account.

3.  Miss Chan was asked to return that device by the accountant to Forda in September 2015.  Some suspicions were aroused because the wrong device was returned, and so the account was checked, and it was found the defendant had transferred some $20,000 to her own account without permission, and that led to the defendant’s dismissal at that stage, and that sum was repaid in fact.

4.  It was later found that two cheques were drawn on Calex’s account without the authorisation of the company.  They were for a million dollars and $35,000, one in favour of the defendant, another in favour of Treasure Express, and that is a mortgage company.  And, apparently, that was used as a mortgage loan from Treasure Express in the sum of a million dollars.

5.  The defendant had told that company that the cheque was issued by a company from a friend of her husband.  Well, the conclusion is that the defendant stole the chose in action which was the the cheque, the debt on the cheque, in the sum of a million dollars and $35,000 owed by OCBC Wing Hang Bank to Calex Limited.   

6.  The defendant has admitted those facts and made full admission to that, and so that has been reduced to two charges, one concerning the million-dollar cheque and the other one concerning the $35,000 cheque.

7.  As far as the defendant’s background is concerned, I have obtained a report on her.  She is a person of clear record. At the time when her antecedent statement was taken, she had a 3‑year-old daughter and that daughter is now 4 years old.  She was educated at the Chu Hai College of Higher Education.

8.  The defendant is a young mother.  So I have obtained background report and a social welfare officer’s report on the child, and she has a cohabitant who is aged 27 and earns around $20,000 per month and a 4-year-old daughter.  At the time of the background report, the defendant was living with her cohabitant’s family in a property owned by them.

9.  We find from the defendant’s education that she had completed a Bachelor degree course of journalism in higher education in 2012.  Before she was imprisoned for this offence while I obtained reports, she had been working as a part-time assistant of community centre.  And the defendant was prepared to clearly admit her wrongdoing to the probation officer in the background report.  At that time, she had a plan for returning the money to the company.  She regretted what had happened and was very remorseful. 

10.  The social welfare officer’s report on the child involved interviews with the cohabitant and in fact the daughter herself.  She is presently under the care of her grandmother and has in fact been so since her birth.  She is studying at Kindergarten 2 and is accompanied by the grandmother from home to school daily.  Arrangements have been made for the daughter that she is going to be cared for by her maternal grandmother at her home continuously, and the cohabitant will visit the daughter to give assistance.

11.  The description I have is that the daughter is very happy to live with the maternal grandmother and looks healthy.  The view of the grandmother is the daughter would miss her mother, and that clearly is going to be the case.  But the court can be satisfied the arrangements that have been made for the daughter are the best that can be made in the circumstances.  That is a credit to the defendant and her family that made them.

12.  The other clear mitigating factor is the fact that I have information from Calex - that cheques in the sum of a million dollars and $35,000 have been given to them and have been honoured.  So I can treat this as a case where full voluntary restitution has been made.  Such restitution is made after conviction but that is largely a result of the problems of enabling these payments.  I will take this as being full voluntary restitution and incorporate it into the sentencing process as such.

13.  I have also a letter from the defendant and also letters from members of her family where she shows remorse.  I consider her showing of remorse in this case is entirely genuine, and this is an offence that is clearly out of character and really was taken to, in her view, to try and protect the financial interests of her family by paying off the mortgage. Clearly, it shows a lack of understanding of the legal consequences of what she does, but I am sure the defendant has learnt her lesson.  There will be no chance of there being a repetition of offences of this nature by the defendant. 

14.  Nevertheless, these offences involve serious matters.  They involve a breach of trust - I do not think that can be disputed - and involve a considerable amount of money, 1.3 million, $1,035,000.

15.  Now, the starting points for the sentences are set out in guideline sentencing cases, and in this case, we can see the case of HKSAR v Ng Kwok Wing which is CACC 39 at 107 where from sums ranging from $1 million to $3 million, the starting point for sentence shall be between 3 to 5 years’ imprisonment.  This would put this case at the bottom of that range of sentencing which is 3 years’ imprisonment.  The reason for such sentencing is to maintain consistency that like defendants are treated alike, and so any departure from that guideline sentence must be in the interest of justice. 

16.  There are a number of factors that I must consider in this case.  Firstly, is the defendant’s plea of guilty, the fact that the defendant has endeavoured to make full restitution and finally that there is a young child involved in this case who requires the society and care of her mother, and I have considered that to be a significant factor. 

17.  I have already said I have been instructed that full restitution has been made, and there have been some difficulties in making this restitution but the defendant has worked to ensure full payment. 

18.  I note in the case of HKSAR v I think it is Chiu Peng Richard there is a discount.  12 months is appropriate where a full repayment of $60 million has been made.  So, clearly, there will be a discount for that restitution from the starting point for sentence that I adopt.

19.  The other factor I must consider is what I call the social considerations, and that is the fact that this involves the sentencing of the mother of a young child.  The courts in Hong Kong have said in the past that public interest is promoted, wherever possible, by preserving the family unit.  It was the case of R v Chong 181 Crim App 206.  In HKSAR v Cheung Suet Ting, a 29-year-old mother of two young children where there was suitable care for the children, there was no discount given there because it was what was described as a relatively short period where the applicant would be imprisoned.  The original sentencing was 12 months’ imprisonment.  She spent some time in custody on remand at that point, and she had already served a part of that sentence.

20.  However, I do note that in respect of sentencing of cases involving children in England and Wales where one of the parties is a parent to children in the sentencing process, here more recently the sentencing process has been observed from the perspective of a right that accrues to the child itself, and this example comes from the Human Rights Act of 1998 which obliges all public bodies in that country, which include courts, to comply with the European Convention of Human Rights, article 8, that provides everyone has the right to respect for the private and family life, home, correspondence, and it is being said that there should be no interference by a public authority with the exercise of this right - that is the right of the child to a right to family life - except such as in accordance with the law and is necessary in a democratic society.  Naturally, the imprisonment of a parent involves the forcible separation of parent and child.  It interferes with the article 8 right of the child by depriving the child of parental care.     

21.  I note that in Hong Kong, article 37 of the Basic Law provides a similar right.  Furthermore, by article 39 of the Basic Law, which includes the incorporation to Hong Kong law of the ICCPR rights which include in article 17 prohibition on the arbitrary and unlawful interference with the family and specific rights in article 24 for the rights of the child.

22.  It would appear that the rights of a child in Hong Kong are protected in the same way as article 8 guarantees the rights of the child in the jurisdiction of England and Wales.

23.  The relevance of this right has been considered in England and Wales insofar as it may impact the process and application of sentencing of the mothers of young children.  The case that I want to consider is R (on the application of Stokes) v Gwent Magistrates’ Court where the High Court in a judicial review of a decision to commit a mother to prison, it was said:

“A court considering an order to imprison which would separate completely a mother from her younger children with unknown consequences of the effect of that order on these children had to take into account the need for proportionality and to ask itself whether the proposed interference of the children’s right to respect for their family life was proportionate to the need which made it legitimate.”

24.  Thus, it would appear that in sentencing a parent, especially the mother in this case of a young child, the court should acquire information about the dependent children and balance the right of the child to a family life against the seriousness of the mother’s offence.  It would appear to me that is an obligation on the court to avoid arbitrary sentencing or an arbitrary interference with the child’s rights.    

25.  In the case that I have already quoted, Cheung Suet Ting, the Court of Appeal in that case appears to have carried out an exercise of this nature.  It was done without any express reference to whether any right adhered all into the child in that case but the exercise was done.

26.  In this case, the state clearly has a right to expect consistency in the application of sentencing.  In the cases of breach of trust, the guidelines reflect the severity with which such offences are regarded and the harm they inflict upon commercial operations requiring trust to carry them out, and this has to be balanced against any considerations, welfare considerations of this 4-year-old child not to be separated from the society of her mother.  But I do acknowledge and it must be acknowledged that even though the arrangements for the child are highly satisfactory, damage will be inflicted to this child by the incarceration of her mother.  I do not think that can be ignored.

27.  I must now see how these factors impact on how I calculate the sentence for the defendant.  I can see no reason in this case why the starting point certainly on the 1st charge involving the theft of a chose in action of a debt of a million dollars should not be the normal starting point which is 3 years’ imprisonment, 36 months.

28.  From that, I will deduct 9 months’ imprisonment to represent the restitution the defendant has made.  I will also deduct a further 9 months to represent the welfare aspect of the deprivation of mother and child which, having regard to the case of Cheung Suet Ting, one should imprison for as short a period as possible, having regard to the necessity for the imposition of correct sentencing when one looks at the position of a mother and a young child.

29.  Taking these factors into consideration, this means that the starting point for sentence on the 1st charge should be 18 months’ imprisonment.  Defendant is entitled to a full one-third discount from that.  That leads to a sentence on Charge 1 of 12 months’ imprisonment.

30.  On the 2nd charge, I will adopt a similar approach, would have taken a starting point of 6 months’ imprisonment and reduce that by half, the starting point by half to 3, a further reduction to 2 months’ imprisonment for her plea of guilty. 

31.  I will order, having regard to questions of overall totality, those sentences run concurrently.  So the overall sentence for these two offences will be one of 12 months’ imprisonment.