HKSAR v. YAN CHEE YUNG

DCCC 726/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 726 OF 2014

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Reasons for Sentence

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1. The defendant has pleaded guilty to 18 charges of theft.

2. The background to this case is the defendant was an employee of Chong Hing Securities Limited and was posted to a branch of Chong Hing Bank in Kowloon City.  He was a licensed person for advising and dealing with securities, and he would assist customers to deal with matters relating to their security accounts with the bank.

3. Over a period of seven years, the defendant stole a total of HK$6,911,962 of the money of the clients of the bank by purporting to purchase securities for them.  He never made the purchases, and took the money for his own use.

4. There were totally 18 victims.  They are the prosecution witnesses 1 through to 18.  They were aged between 51 and 78 years.

5. In the Agreed Facts, the facts relating to Charge 6 and 7 are illustrative of the way in which the thefts occurred, but it is accepted that the modus operandi of the thefts were similar for all 18 offences.

6. In respect of Charge 6, between 14 January and 19 August 2013, the defendant had told the victim, PW1, he could purchase stocks and securities for him below market prices or a discounted or staff rate or with a bonus of extra shares.  PW1 then paid a total of $1,770,500 to the defendant by way of cash and cheques, and on these occasions the defendant would give the victim, PW1, a handwritten note purporting to show he had purchased a certain number of stocks or securities at a certain price.

7. Similarly, in respect of Charge 7, between 29 April 2013 and 29 May, the defendant told another victim, PW2, he could make the same kind of purchases, and a total of $207,000 had been paid to him for those alleged purchases.

8. Starting from September 2013, the victims of these charges, PW1 and PW2, had pressed the defendant for getting their money back. The defendant made promises to pay.  On 11 February 2014 he gave an IOU to them.  He had even given his passport to PW1.  On 10 February he gave his Hong Kong identity card and China Entry Permit and staff card to PW1 to get his passport back, but after that, the defendant became out of reach, and it was clear from the facts that he had departed to Taiwan on 10 February 2014. The defendant was arrested on his return on 19 February 2014.

9. Now we know the defendant never made any of the purchases of stocks or securities via the security accounts of his own or PW1 to 18. 

10. The defendant made five video-recorded interviews.  It suffices to say that they were full admissions to the offences, and he confirmed he had never made any of the purchases.  Naturally, the facts agreed by the defendant show that these offences involved the defendant in a serious breach of trust.

11. The defendant is aged 41 years old.  He is married, with a 12-year-old son.  He is of previous clear record.

12. The defendant has co‑operated with the prosecution from an early stage.  He made a full confession, and has made a full admission of facts.

13. The report on the defendant and the mitigation that has been advanced shows the defendant’s offences appear to grow out of his habit of gambling.  He had cheated the victims to fund his gambling, to which he was described as being addicted, and then he engaged in larger bets to try to win back the losses so that he could repay the victims.  This obviously was unsuccessful, but he was able to maintain the fiction for a lengthy period, and the money stolen crept up over the years to the region of just under $7 million, and the number of victims and the amounts were increasing each year incrementally.

14. Despite his crimes, the defendant retains the loyalty and support of his family and friends.

15. The crimes themselves were relatively unsophisticated.  The gravity in these offences is in their multiplicity, the breach of trust involved, and the lengthy period of time over which they were committed.  When it was clear that matters were coming to a head, the defendant fled to Taiwan.  To his credit, he returned to face the music, and since that time has been co‑operative with the prosecution authorities.

16. Of relevance also to the question of sentence is the defendant has made an offer of compensation.  The defendant obviously spent the money that he stole.  He proposes that the victims be compensated from his share of the sale of his matrimonial home.  The defendant has ensured that a total sum of $1,339,072 is available to compensate the victims at least in part.  This obviously shows remorse and a desire, insofar as he is able, to recompense the victims of his crimes.

17. There were a number of letters written to the court in support of the defendant, including those written by himself and his wife and other relatives such as the sister, and friends.

18. In summary, the defendant’s mitigation relies on matters such as his previous clear record, his co‑operation with the prosecution upon his return to Hong Kong, his otherwise good character aside from these offences, his return to Hong Kong, and his willingness to compensate the victims as best he can.

19. I have been referred to the guideline sentences in respect of theft of money by way of breach of trust.  There is the case of Cheung Mee Kiu [2006] 4 HKLRD 776, and also the case of HKSAR v Ng Kwok Wing CACC 398/2007, where the guidelines in Cheung Mee Kiu were altered in certain areas.  Mr Ho for the defence has helpfully referred me to the case of HKSAR v Wong Chor Wo CACC 314/2006, as an example of how the guidelines have operated in the Court of Appeal on a practical basis.

20. At present we appear to be looking at the Ng Kwok Wing case, the modified guideline, and looking at the overall amount of money stolen in the seven years of offending puts the case within a guideline of $3 million to $15 million, where the starting point for sentence for a person with an otherwise clear record would be in the range of 5 to 10 years’ imprisonment.  That is quite a considerable range both in relation to the amount of money and the length of sentence.

21. Obviously the sum of almost $7 million would put this case towards the lower middle of the guideline, which would be in the range of between 5 to 7½ years’ imprisonment.

22. The defence has referred to the case of Wong Chor Wo, a case in 2009, again a case involving a breach of trust relating to some 17.23 million.  It resulted in a sentence of 6 years’ imprisonment.

23. The defence has asked that when looking at the sums, I sentence this case on a pro rata basis having regard to the amount of money in the breach of trust in the Wong Chor Wo case.  I note, however, in Wong Chor Wo’s case, the court said that a sentence in excess of 6 years’ imprisonment could well be justified, but decided, for reasons peculiar to that case, that the sentence in that case need not be increased.  It clearly was not meant to be a guideline case, and the guidelines are clearly set out in Cheung Mee Kiu as amended by Ng Kwok Wing.

24. I see no reason to substantially depart from them in this case.  There is nothing extraordinary or unusual about this case, especially in mitigation.

25. There is of course the question of compensation to be considered.  All the victims will be compensated insofar as it is possible out of the sum the defendant has available, and an amount has been calculated which provides some compensation for each of the victims, and I think it is fair to say the defendant has made substantial efforts to compensate insofar as he is able, and that must be reflected in the way the court treats his case.

26. When approaching sentence in a case such as this, where there are a multiplicity of offences, the court should adopt the correct starting point in respect of each offence and then decide on the appropriate deduction and reach the correct sentence on each offence, and then, once that has been calculated, then by using the ability to order sentences to run consecutively or concurrently, the court should then arrive at a correct overall totality.

27. I will firstly deal with what I consider to be the correct sentences in respect of each offence.  These will be calculated in relation to the guideline sentences.  There will then be a deduction of one-third for the defendant’s plea of guilty.  I have decided at this stage to add in a further deduction of 2 months on each charge to reflect the compensation that will be paid to each victim.  This will lead to sentences as follows:

on Charge 1, a starting point of 30 months’ imprisonment, reduced to 20 months’ imprisonment for the defendant’s plea of guilty, and a further 2 months for compensation, which will lead to a sentence of 18 months’ imprisonment;

on the 2nd charge, a starting point of 12 months’ imprisonment. The deduction then of one-third would lead to a sentence of 8 months’ imprisonment and a final sentence of 6 months’ imprisonment;

on Charge 3, a starting point of 33 months’ imprisonment, reducing to 22 months’ imprisonment for plea of guilty and 20 months’ imprisonment for the payment of compensation;

on Charge 4, a starting point of 36 months’ imprisonment, reduced to 24 months’ imprisonment for plea of guilty and 22 months’ imprisonment after compensation is considered;

on Charge 5, a starting point of 30 months’ imprisonment, reduced to 20 months’ imprisonment on the one‑third discount and then 18 months’ imprisonment after consideration of compensation;

on Charge 6, a starting point of 42 months’ imprisonment, which is 28 months’ imprisonment for plea of guilty and then down to 26 months’ imprisonment after payment of compensation;

on the 7th charge, a starting point of 18 months’ imprisonment, reduced to 12 months’ imprisonment for the defendant’s plea of guilty and then a further 2 months down to 10 months’ imprisonment;

on Charge 8, a starting point of 24 months, subject to one‑third discount, 16 months, and 14 months after compensation is considered;

on Charge 9, a starting point of 12 months’ imprisonment, reduced to 8 months’ imprisonment for plea of guilty and 6 months’ imprisonment after deduction of compensation;

on Charge 10, a starting point of 6 months’ imprisonment, reduced to 4 months’ imprisonment for plea of guilty and 2 months’ imprisonment after consideration of compensation;

on Charge 11, a starting point of 9 months’ imprisonment, reduced to 6 months’ imprisonment after plea of guilty and a reduction down to 4 months’ imprisonment for consideration of compensation;

on Charge 12, a starting point of 6 months’ imprisonment, reduced to 4 months’ imprisonment for plea of guilty and a further reduction to 2 months’ imprisonment after consideration of compensation;

on Charge 13, a starting point of 21 months’ imprisonment, reduced to 14 months’ imprisonment for plea of guilty and reduction to 12 months’ imprisonment for defendant’s compensation;

on Charge 14, a starting point of 9 months’ imprisonment, reduced to 6 months’ imprisonment for the defendant’s plea of guilty and a final sentence of 4 months’ imprisonment after deduction for compensation;

on Charges 15, 16, 17 and 18, the calculation is the same, starting with 6 months’ imprisonment, down to 4 months for the plea of guilty and a reduction of 2 months for compensation, so a sentence of 2 months’ imprisonment on each of those.

28. I now have to consider how I should approach the question of overall totality.  There was a multiplicity of offences over time. It is a long period of dishonesty.  It is a serious breach of trust.  What is required is an exercise by which the correct overall totality can be considered.

29. I consider that the most efficient and fairest way to approach this question is to posit the overall starting point for sentence for this level of criminality and then calculate the mitigating factors. What would be a correct overall starting point?  To approach the case as if it were perhaps a general deficiency case, and given that we are here dealing with a sum of $6,911,962, the starting point for sentence should be over 5 years’ imprisonment.

30. If I were considering this by way of a general deficiency case, I would consider the overall starting point for sentence should be 66 months’ imprisonment.  From this starting point I would then deduct an allowance for the defendant’s compensation and his overall co‑operative approach which has saved considerable time and also the victims’ distress.  I would capitalise that as a figure of 12 months.

31. This would lead to a sentence of 54 months’ imprisonment.  The defendant again would be entitled to a deduction of one-third.  That leads to an overall total of 36 months’ imprisonment.

32. I consider, having regard to the particulars of this offence and the offender, that that overall total, namely 36 months’ imprisonment, is the correct figure for this particular series of offending.

33. I will achieve that figure as follows.  I will order the sentences on the 1st to the 5th charges be served concurrently to each other, and those on the 6th through the 18th charge also be served concurrently to each other; but 14 months of the sentences in respect of Charges 6 to 18 is to be served consecutively to the 22 months of sentence in Charges 1 to 5.

34. This leads to an overall total of 36 months’ imprisonment.

35. There is also a compensation order to be made which I will read into the record.  The defendant is ordered to pay the sum of $1,000,339.72 on or before 4 December 2014.

36. I will make an order in terms of the document that has been produced and agreed by the parties, but for the purposes of the record, I will describe the name of the persons to be compensated on the order:

Shum Chung‑lim receives $256,086.97;

Sum Lai-ping, $30,010.19;

Lam Chor-king, $14,404.89;

Li Nui, $10,003.40;

Chan Sui-wah, $28,609.72;

Ng Sau-ping, $12,304.18;

Cheung Sui-wah, $11,103.77;

Leung Yuet-kwai, $8,002.72;

Yeung Shuk-ying, $4,801.63;

Lau Siu-fung, $45,015.29;

Wong Kwok-wai, $4,801.63;

Mui Pik-ha, $207,770.56;

Tse Pui-tak, $131,044.50;

Luk Yee-kow, $6,502.20;

Yiu Shun-yuk, $7,202.45;

Wong Kin‑fai, Ronald, $101,834.58;

Wong Mak Kin-ying, $104,835.60;

Chan Siu-bing, Amy, $16,005.44.

37. As I said, the payment is on or before 4 December 2014 to the Registrar of the District Court.