HKSAR v. WONG KEI WAH

DCCC 1103/2017

[2018] HKDC 436

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1103 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of Theft.

Summary of facts

2.  The defendant had been employed as logistics manager of a good company since April 2013. His responsibilities included the logistic arrangements for delivery of food products to clients.

3.  Clients would settle payment by paying the delivery person according to invoices presented upon delivery.

4.  Since late 2013, the defendant had also been responsible for the daily collection of such payments from the delivery persons. The payments were to be passed on to the accounts department on a weekly basis.

5.  In the evening of 22^nd November 2016, the defendant texted his boss Mr Wong via WhatsApp and confessed that due to his own investment loss, he had stolen $330,000 from the company. The defendant told Mr Wong that he had tidied up all relevant invoices for his verification and that he was going to surrender to the Police.

6.  The following day, having verified with clients, Mr Wong was able to confirm that the defendant had stolen a total of $333,622.70 from the company between 20^th October and 21^st November 2016.

7.  The defendant did surrender to the Police that same morning and was arrested. Under caution, the defendant admitted that he had stolen around $330,000 from the company between October and November that year, but that he had lost all the stolen money gambling. He decided to surrender himself because he was unable to repay the company.

8.  In a subsequent cautioned interview, the defendant explained how he would record the newly received payments as previously overdue payments. In late November, once he realized that the newly received payments could no longer cover up the money he had stolen, he decided to confess to his boss.

Previous convictions

9.  The defendant has one spent conviction dated 18^th March 2010 for theft when he was fined $5,000.

Mitigation

10.  The defendant is 55. He was the main breadwinner of the family. Together with his wife who is 47 and a part-time promoter, they have two children. An 18-year old student and a 22 year old who works as a part-time painting tutor.

11.  The defendant was educated up to F.3 level and had been working since he left school. Since his dismissal by the victim company, he managed to find work as a part-time delivery person at the airport, earning a daily wage of $650.

12.  I was told that in relation to the previous conviction for theft, the facts were that the defendant had taken money that was left behind by someone at an automatic teller machine.

13.  Mr Lee for the defendant pointed out that the defendant had voluntarily confessed to his boss and surrendered himself to the Police, showing remorse on his part and a strong determination to start a new life.

14.  According to the defendant, he had voluntarily agreed with the victim company to repay the stolen money, when he has the money.

15.  Letters in mitigation from the defendant’s parents, wife and siblings are produced. In gist, they say that the defendant had committed the offence out of character. They all see in him great determination to turn a new leaf.

16.  I also learned from the letters that the defendant’s parents are not in such good health. They seek leniency so that the defendant can return to them as soon as possible.

17.  All in all, the letters paint a picture of someone who has a strong sense of duty to his family, and someone who had committed the offence out of character after his unfortunate association with other gamblers.

Sentencing considerations

18.  The maximum sentence on conviction upon indictment for the offence of theft is that of 10 years’ imprisonment.

19.  The defendant committed the theft whilst under the employment of the victim company. In cases where a theft involves a breach of trust, the sentencing guidelines as laid down in the case of HKSAR v Cheung Mee Kiu (張美嬌) [2006] 4 HKLRD 776, as updated in the case of HKSAR v Ng Kwok Wing and another, CACC 398/2007 apply.

20.  For theft of $250,000 to $1,000,000, the range of sentence is that of 2 to 3 years’ imprisonment.

21.  Mr Lee sought to rely on the case of HKSAR v Tso Man Lap and another [2018] HKCU 63 to suggest that a Community Service Order can be imposed even in a breach of trust theft scenario.

22.  However, it is a specific finding of the learned trial judge in that case that the second defendant was not being sentenced on a breach of trust basis. Mr Lee’s reliance on the case is, therefore, wholly misconceived.

23.  Having said that, it is trite law that guidelines are not straitjackets and each case must be dealt with on its own merits.

24.  Nevertheless, I find that there is nothing in the circumstances of the defendant’s commission of the theft while as the logistics manager of the company that would warrant a departure from the guideline sentence, especially not as big a departure as to impose a Community Service Order instead of a term of immediate imprisonment.

25.  The theft was committed over a one-month period. For this kind of cases, it cannot be regarded as a long period.

26.  The defendant’s commission of the theft was straightforward. It did involve the false entries of new payments as overdue payments but there was no large scale falsifying of documents or use of bank accounts belonging to other people.

27.  Taking into consideration the above factors, I find that the defendant’s theft is at the lower end of the spectrum of seriousness.

28.  An arithmetical application of the guidelines would lead to a sentence of around 25 months’ imprisonment.

29.  I do adopt a starting point of 25 months’ imprisonment.

30.  Although the defendant has one conviction record, it was some time ago and is regarded as a spent conviction in law. I do not find this an aggravating factor and will not enhance his sentence on this basis.

31.  Although I do respect the defendant’s effort to provide for his family, his being a dutiful son to his parents, loving husband to his wife and responsible father to his children, I find that the personal circumstances of the defendant are not such as to warrant a further discount in sentence.

32.  As for the defendant’s promise to repay the victim company, I note in the written agreement that such repayment is conditional on the defendant’s ability to repay in the future (「日後若有能力」).

33.  The defendant’s mere “willingness” to repay the stolen money is not a sufficient reason to reduce the sentence in any way at all: see Sentencing in Hong Kong, 7^th Edition, Cross and Cheung, at p.483 and the case of HKSAR v Yu Tak-kwong, CACC 169/2002, at paragraph 24 of the judgment of Stuart-Moore VP.

34.  Having said that, I find that the defendant’s acts of voluntarily confessing and surrendering to the Police being conduct that must be recognized. For that, I will grant him a reduction of 1 month, resulting in a sentence of 24 months’ imprisonment.

35.  The defendant is, therefore, sentenced to 16 months’ imprisonment after granting him the full one-third discount for his guilty plea.