HKSAR v. WONG SHUN YAN

 DCCC542/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 542 OF 2010

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Reasons for Sentence

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1.  Defendant has pleaded guilty to 36 charges of theft, contrary to section 9 of the Theft Ordinance, Cap.210.

2.  Each and every charge relate to a cheque payable to the defendant’s employer which he has stolen.

3.  The facts of this case are very straightforward. The defendant has since 2004 worked for a company called Frolic Enterprise Company, an unlimited company. One of his duties is to collect payments for goods from clients. He is then to pay them into the company account.

4.  In November 2006, the defendant registered an unlimited company in the exact name of his employer’s company. He also opened a bank account in that company’s name.

5.  From December 2006 to June 2007, 19 of Frolic Enterprise Company’s customers issued 36 cheques to Frolic for payment of goods. As I have said, theses 36 cheques are the subject of Charges 1 to 36. These 36 cheques amounted to $760,315.64.

6.  The defendant deposited all these cheques into his own Frolic Enterprise Company bank account, not his employer’s. But to try and avoid suspicion and detection of that amount, the defendant paid $236,523.65 into his employer’s account.

7.  The loss suffered by the employer is HK$523,791.99. This amount the defendant has used to repay a gambling debt as well as gambling the balance away.

8.  This amount is not an insignificant amount of money. I have heard mitigation today made on the defendant’s behalf, and the best mitigation is his plea of guilty. Plea of guilty demonstrates remorse.

9.  This offence did come to light nearly three years ago. The defendant has cooperated with the police and admitted his wrong to his employer immediately. The defendant was not charged until recently, I assume due to the amount of cheques and banks involved required lengthy investigation.

10.  The defendant does not complain about delay, but I understand that having this matter hang over him for such a long period of time would lead to stress.

11.  Defendant is 40 years old, single, but has a long-term girlfriend. He lives most of the time in Hong Kong with his elderly parents who rely on him, they are retired. Defendant’s father is in court today to support the defendant.

12.  I have been told that the reason for these offences and for the defendant to hatch such a scheme is because of gambling debts he incurred. Gambling is a destructive habit which can ruin many people’s lives, and here is such an example.

13.  From the facts of this case, the defendant was bound to have been discovered sooner rather than later. This is a classic breach-of-trust scenario. He has stolen and siphoned off his employer’s money. Moreover, there has been no restitution here of this loss.

14.  Defence counsel agreed that this is a case where HKSAR v Cheung Mee Kiu applies, CACC99/2006. According to this Court of Appeal authority where the loss suffered due to a breach of trust by a defendant is between HK$250,000 and HK$1 million, an appropriate starting point would be between 2 to 3 years. I will be following this guideline.

15.  I take into account that these 36 offences were committed over a 6-month period. If the overall criminality had been reflected by a single charge, a starting point of about 2 years and 4 months would be appropriate.

16.  All the charges are identical, the modus operandi are the same for each. The amounts of these 36 cheques vary between a few hundred dollars to a hundred-odd thousand dollars. I do not intend to apply the guideline to the amounts of each individual charge. In this situation, a global approach would be appropriate.

17.  Defendant, please stand up. I take into account your plea today, your previous clear record, the facts of the case, mitigation put forward on your behalf, and of course the amount of loss suffered by your employer. As I have said, I will be applying the guidelines of the authority of Cheung Mee Kiu.

18.  For each and every charge, I would take a starting point of 2 years and 3 months. You have pleaded guilty, you will be entitled to a discount of one-third for each charge. That is a discount of 9 months.

19.  For Charges 1 to 36, for each charge you are sentenced to an 18-month term of imprisonment. All 36 charges will be served concurrently. That is a total sentence of 18 months’ imprisonment.