HKSAR v. LAM YUK WAI

DCCC 292/2021

[2022] HKDC 480

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 292 OF 2021

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REASONS FOR SENTENCE

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CHARGE

1.  The defendant was charged with 6 counts of theft.

PLEA

2.  The defendant pleaded guilty to Charges 1, 2, 4 & 5 and admitted the facts.  Upon application by the prosecution, Charges 3 and 6 were left in court file and not to be proceeded with without the leave of the court.

SUMMARY OF FACTS

3.  At all material times, the defendant was an Account Executive of the HSBC Broking Services (Asia)  Limited.  His main job duty was to trade futures, options and derivatives upon instruction of the company’s clients.

DEFENDANT’S ADMISSION

4.  On 28 July 2015, the defendant volunteered himself to the Head of Sales Management that since 2011, he had appropriated approximately 40 million HKD of client funds.  He admitted using up all the client funds in making investments without clients’ authorization, namely the 4 accounts of the subject charges.

5.  The defendant also said that in order to conceal the unauthorized trading activities, he would provide false account information to the affected clients.  He denied any personal benefit.  He just wanted to help the clients to recover from investment losses.

Charge 1

6.  It involved 2 unauthorized transactions totaling at HK$2,885,000.

Charge 2

7.  It involved 22 unauthorized transactions totaling at HK$2,244,555 and US$445,502.50.

Charge 4

8.  It involved 4 unauthorized transactions totaling at HK$242,995.29

Charge 5

9.  It involved 1 unauthorized transaction of HK$1,216,550.

10.  A total of HK$6,589,100.29 and US$445,502.50 was misappropriated by the defendant.  The defendant was dismissed in August 2015.  The company had made compensations to the 4 victims.  The defendant made no compensation to the company.

DEFENDANT’S BACKGROUND

11.  The defendant, aged 37, was born in Hong Kong with a clear record.  He received education up to University level and obtained postgraduate Diploma and Certificate in accountancy.

12.  Since April 2018, he had been working for another company as a Senior Costing Account with salary of HK$17,000.  He was the main breadwinner of the family.  After this incident, his wife deserted him.  He resided with his parents.  He and his girlfriend had a daughter aged 5.

13.  In February 2020, the defendant developed a follicular adenoma locating in his left thyroid lobe and a surgery was done in May 2021.

Reasons for Sentence

14.  I have considered the followings:-

(1)  the facts of the case, involving breach of trust and totaling about 10 million;

(2)  the mitigation put forward;

(3)  the defendant’s background report; and

(4)  the defendant’s clear record.

15.  I have further considered the following authorities as submitted by defence:-

(1) HKSAR v Cheung Mee Kiu [2006]4 HKLRD 776

(2)  HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017

(3)  HKSAR v Wong Kei Wah DCCC 1103/2017

(4)  HKSAR v Tam Wing Chuen DCCC 433/2021

(5)  HKSAR v Cheung Suet Ting CACC 226/2009

(6)  HKSAR v Chan Yuk Kwan CACC 26/2001

STARTING POINT

Global consideration

16.  For the 4 counts, the total loss suffered by the victims was just above $10 million.

17.  For theft involving breach of trust, by applying the tariff, the term should be 95 months which exceeded the jurisdiction of 7 years in this court. However, in my opinion, the court might take a little bit higher starting point.  The important consideration was that there was a meaningful discount for the defendant.

18.  Having considered that, I adopted a nominal starting point of 87 months which in my view could result a meaningful discount.

Individual Counts

Charge 1

19.  For around 2.8 million, by applying the tariff, the term should be one of 57 months.

Charge 2

20.  For around 5.7 million, the term should be 73.5 months.

Charge 4

21.  For around 0.24 million, the term should be 23 months.

Charge 5

22.  For around 1.2 million, the term should be 38.4 months.

DISCOUNT BY 1/3 FOR GUILTY PLEA

Global

23.  After 1/3 discount, the term should be one of 58 months.

Individual counts

24.  After 1/3 discount:-

Charge 1: 38 months

Charge 2: 49 months

Charge 4: 15 months

Charge 5: 25 months

TOTALITY

25.  Having considered the totality principle, I made the following consecutive orders in respect of Charges 1, 2, 4 and 5:-

For Charge 2: 49 months’ imprisonment.

For Charge 1: 38 months’ imprisonment, 4 months to run consecutively with Charge 2.

For Charge 5: 25 months’ imprisonment, 3 months to run consecutively with Charges 1 and 2.

For Charge 4: 15 months’ imprisonment, 2 months to run consecutively with Charges 1, 2 and 5.

26.  Therefore the total sentence was:-

49 months + 4 months + 3 months + 2 months

= 58 months’ imprisonment which was commensurate with the global consideration.

FURTHER DISCOUNT

Voluntary admission

27.  I accepted this amounting to a mitigating factor.  I allowed a discount of 2 months.

Delay in prosecution

28.  I had considered the chronological order of events submitted by the prosecution.

29.  The defendant was arrested in August 2015.  In November 2017, he was released by the police.  He was re-arrested in January 2021.  There was a lapse of time for 5.5 years after his full admission and first arrest.

30.  Having considered the circumstances of the case, I was of the view that the present case was not so complicated as to warrant a period of over 5 years for laying charges against the defendant.

31.  I found there was a delay in prosecution.  I further allowed a discount of 4 months for the defendant.

Loss of bonus and mere personal gain

32.  I have considered the above two points submitted by the defence.  I did not find both amounting to any mitigating factor.

FINAL SENTENCE

33.  Basically, the sentence after 1/3 discount was 58 months’ imprisonment. After further discount for voluntary admission and delay in prosecution, the sentence was reduced to one of 52 months.

34.  Finally, I sentenced the defendant to 52 months’ imprisonment.