HKSAR v. YAU KAI YIN, ALBERT

 DCCC7/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 7 OF 2010

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Reasons for Sentence

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1.  Defendant pleaded guilty to a single offence of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. You admitted the brief facts, and I convicted you.

2.  The facts were as follows. Bushnell Performance Optics Asia Limited was set up in 2002 to trade in sunglasses and other optical products. You were employed there as a sales representative. You were authorised to receive orders directly from companies purchasing products from Bushnell. Upon receipt of an order, you referred it to the staff of the company warehouse.

3.  There the order would be assembled/packed and you would then be informed. You collected the order and then delivered it either directly to the client or via delivery workers. The client was allowed a period in order to settle the bill. You were authorised to collect payment and deliver the money or cheque to the accounts department.

4.  PW1, an accounts clerk, found there was a growing number of clients who defaulted in their payment for goods supplied by yourself. She inquired of some of these companies and they said they had settled the payment by giving cheques to you. PW1 then reported the matter to the Financial Manager, PW2.

5.  After checking, PW2 found the following irregularities:

(a)  some clients, who were shown on the sales record as having ordered and received goods, then defaulted on payment, denied placing any such orders with you;

(b)  some who claimed to have placed orders and received the goods handing a cheque to you; and

(c)  others who confirmed ordering and receiving goods, they had settled payment by cheques to Optical Kingdom at your request.

6.  PW2 then prepared a list of suspect transactions and reported the matter to the General Manager, PW3. PW3 interviewed you on 9 March of last year, and you admitted to taking money from clients and using it yourself. At PW3’s request, you marked the transactions to be admitted.

7.  PW3 tried to resolve matters with you. You indicated you would do your best to repay the company. However, you were unable to repay and the matter was reported to the police on 18 March. On that day, you were arrested at Lo Wu and taken to Western Police Station. You were interviewed under caution that same evening on the basis of you having stolen about $1.2 million. You admitted your fault. You said you had sold all the goods in question to other persons. With regard to the money, you said you had used some to cover earlier frauds and the rest had been spent.

8.  Between 19 March 2009 and 4 September of that year, you were interviewed on five separate occasions under caution and admitted the following facts:

(1)  in 2002, you set up a company called Optical Kingdom.  From 2005, you obtained goods from Bushnell by falsely representing that some of your clients had ordered goods.  These were then sold by Optical Kingdom who received payment;

(2)  later when payment for these goods became due, you used funds obtained from other clients in other transactions to settle payment.  In all, you had stolen about 1.2 million being: (a) the value of goods taken on the pretext that they had been ordered by clients; and (b) the money you had received from clients and spent without paying it into the company;

(3)  you agreed the fraudulent transactions you had marked down;

(4)  you agreed a number of invoices and sales records shown to you confirmed they were related to the fraudulent transactions.

9.  The police located a number of persons from various companies who confirmed they had neither placed orders nor received the goods from you. You stole 332 pairs of sunglasses, 3,183 pairs of tactical goggles and 478 other optical products from Bushnell. The total value involved is about $1.02 million.

10.  You are a man of hitherto clear record. Miss Cheong, on your behalf, entered mitigation. She told me that you are 47 years of age, divorced and caring for two sons aged 16 and 8. Additionally, you have to care for your aged father. She told me that you had stolen the money because of financial problems. Initially, you had intended to repay it but that this had proved impossible and you had become more and more enmeshed in the scheme.

11.  It is a major point of mitigation that you have repaid over $300,000, the proceeds of the enforced sale of your home. That goes very much to your credit. However, you cannot repay the balance. There is no likelihood of that ever being done.

12.  Miss Cheong emphasised your cooperation with the company, with the police and ultimately with the court. Clearly, your plea of guilty is an expression of remorse and of saving of court time. Miss Cheong also said that you are extremely remorseful for what you have done and she asked me for leniency on your behalf.

13.  I turn now to the sentence. Defendant, this is a fundamental breach of trust situation. The thefts took place over a considerable period being about two years. I do have some sympathy with you. I note that the money you received after the sale of your home was honourably repaid to the company. And realistically I note there is no prospect of you repaying the balance.

14.  I note your clear record. I note also that the amount involved is about $1 million. I also take into account that you were extremely cooperative with the company when confronted and the police when arrested. Clearly, the inevitable incarceration will have a profound impact on your two young sons, of whom you enjoy custody.

15.  There was in the scheme a certain level of cunning and sophistication in the perpetration of the crimes. I refer especially to the use of your own company. In arriving at the sentence, I take into account the authority of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 CA. This case provides guidelines in cases involving breach of trust.

16.  This involving a theft of goods and cash of about $1 million would indicate a starting point of approximately three years. However, I am of the view there is some mitigation here, especially the attempts to repay as much as you could of the money and the cooperation you have shown.

17.  To reflect that, I take as a starting point 30 months’ imprisonment reduced to 20 months for your plea of guilty. You will go to prison for 20 months.

18.  Finally, I thank counsel for their assistance.