HKSAR v. NG MAN NA AND ANOTHER

DCCC 61/2018

[2018] HKDC 1088

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 61 OF 2018

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Reasons for Sentence

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1.  The case involves two defendants involved in three charges.  The 1st defendant, Miss Ng, is involved in one charge of theft in the sum of 1.19 million.  The 2nd defendant is involved in two charges of dealing with property known or believed to represent the proceeds of an indictable offence in the sums of some $6,000 and then some $1.1 million‑odd.

2.  The defendants have admitted the facts and been convicted, and they show that between February 2013 and August 2015, renovation works were conducted at Jubilee Gardens in Shatin, and the expenses of the renovation were contributed by way of a levy on the households in the development proportionate to the size of their flats.  The Owners’ Incorporation of Jubilee Gardens set up a consolidated bank account at the Bank of Communications with a number of members of the OIC as being joint signatories on that account.

3.  From 1 September 2015 the OIC employed the 1st defendant as an accounting secretary to deal with the refund to the households of the contributed funds for the development of the renovations, and there was an audit check conducted and it was found that a total of 1.191 million‑odd was appropriated in 29 false cheques.

4.  The 1st defendant had created a number of cheques that caused payments to be made to her own bank account, and the total amount of money that was involved in this part of the scheme was $75,041, and the false cheques had also been created to cause payment to be made to the 2nd defendant’s bank accounts, and the 2nd defendant received by way of that method some $1.116‑odd million, of which she remitted to the 1st defendant a total of 1.037 million‑odd.

5.  When the 1st defendant was arrested, she immediately said as follows:  “Those cheques were altered by me.  The payees were amended as myself and the 2nd defendant.  Therefore, the moneys were paid into the 2nd defendant’s and my bank accounts.”  And the 2nd defendant, when she was arrested, said, under caution, that “The 1st defendant had remitted approximately a total of HK$1 million to my two bank accounts.  I remitted it to her.  I was given approximately $100,000 as reward.”

6.  Now, although the defendants made subsequent more extensive video‑recorded interviews, the original statements under caution did in fact encapsulate what they had done in these offences.

7.  The 1st defendant later said that she had spent all the stolen money, and her method had been to select households that could not be contacted, and she had issued cheques with an erasable pen payable to those households and presented them for verification and signature.  After doing that, she had then replaced the payees to either herself or the 2nd defendant, who had agreed to lend her bank account to her, and the 2nd defendant was likely the small part of the stolen amount.

8.  Both defendants said they committed the offence out of greed, and the 2nd defendant said she knew the money was coming from the OIC because the 1st defendant would take pictures of the cheques and send them to her via WhatsApp and she would receive instructions as to how much should be returned or remitted back to the 1st defendant.

9.  The 2nd defendant had not given her any explanation about the incoming payments and simply said her account could not be used.  Eventually, the 2nd defendant suspected the money was the proceeds of crime, and she was promised a 10 per cent reward on each occasion and was treated with meals and some branded handbags and clothes.

10.  The agreed financial loss suffered by the OIC is $1,191,090.20, which is the amount particularised in the 1st charge.

11.  Dealing now with the defendants’ antecedents, the 1st defendant is now aged 37.  She has a clear record.  She has worked as a clerk and a secretary.  Her domestic and family circumstances tell me she is married, but lives with her mother, and her husband is in the mainland.

12.  The 2nd defendant also has a clear record, and is aged 31.  She is single, lived with her parents, and has worked as a customer services worker.

13.  As far as the further mitigation provided by the parties, the 1st defendant acknowledges she has no money to pay compensation. She has committed the offences, she said, because she was in debt; she was greedy.  She has spent all the money, but she still has her family supporting her.

14.  For the 2nd defendant, her mitigation, we know that she is a young girl and her counsel describes her as being somewhat introverted, and she became a friend of the 1st defendant and they did such things as travel together, took holidays, but she became, to a certain extent, under the influence of the 1st defendant.  It is said that her offence is one of turning a blind eye to the source of the money, lending her bank account and remitting money to the 1st defendant.  She has in fact been able to arrange compensation in the sum of almost $79,000, which I am told represents the money retained by her.

15.  Turning to the respective sentences for the two defendants, I will deal with the 1st defendant.

16.  She faces one charge involving the sum of almost 1.2 million.  It is common ground here that the theft by the 1st defendant involves a breach of trust, and there are provisional sentencing guidelines which reflect the sums of money involved.

17.  The defendant falls within the sentencing guideline of between 1 to 3 million dollars, which is 3 to 5 years’ imprisonment.

18.  The defendant has acknowledged the offences from an early stage.  She is entitled to a full one-third discount.

19.  What I shall do is adopt the figure at the starting point of the discount, which is 3 years’ imprisonment, which I will express as 36 months’ imprisonment.  After deduction for the defendant’s plea of guilty is taken into account, that leads to a sentence for the 1st defendant on the 1st charge of 24 months’ imprisonment.

20.  The 2nd defendant faces two charges.  She is charged with dealing with the proceeds of the offences.  It is said there is no sentencing tariff for the offence of money laundering because of the large variety of circumstances that can lead to the offences.

21.  The case of HKSAR v Hsu Yu Yi [2010] HKCA 486 sets out the amount of moneys involved in a number of cases and the level of sentencing involved, and that case says the sentencing starting point is 3 years or so where the “black money” involved is between 1 and 2 million dollars.

22.  More recently, in the case of HKSAR v Boma [2012] HKCA 52, the court set out a number of significant features that should affect the sentence.  It was the nature of the predicate offence which we know to be theft.  The state of the offender’s knowledge is a factor.  That has been dealt with in the defendant’s record of interview.

23.  The offence does not involve an international dimension and I would not describe it as being particularly sophisticated, and is not a syndicate offence.

24.  There was more than one transaction that took place over a period of some three months.  The role of the offender was that of lending the account and remitting money.  Mitigating factors for this defendant, particular to this defendant, would be her effort to make some compensation, and compensation that, to a certain extent, reflects her own personal enrichment by the offences, and also that she, although a clear participant in the offence, was not the initiator of the criminality, but followed her friend into it; and finally the fact that she, like the 1st defendant, has a clear record.

25.  I consider that those factors do provide some mitigation for her which comprises some basis for lowering the starting point I would otherwise adopt of 36 months’ imprisonment.

26.  What I shall do for the two offences is derive an overall starting point in the region of 30 months’ imprisonment.

27.  So the sentences on the charges the 2nd defendant faces will be as follows:

On the 2nd charge I will take a starting point of 12 months’ imprisonment and reduce that to 8 months’ imprisonment, and on the 3rd charge I will take a starting point of 30 months’ imprisonment, and reduce that to 20 months’ imprisonment.

28.  Those sentences will be served concurrently, to a total of 20 months’ imprisonment.