HKSAR v. YU HOK CHIU

 DCCC256/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 256 OF 2009

----------------------

----------------------

________________________

Reasons for Sentence

________________________

1.  The Defendant pleads guilty to two counts of theft (1st and 3rd charge) and two counts of using a false instrument (2nd and 4th charge).

2.  The two victims were proprietors of a car accessory company in To Kwa Wan, (“the Company”) and they have a joint bank account in the To Kwa Wan branch of the Bank of East Asia Limited (“the Account”) of which they were the only two signatories.

3.  The chequebook of the Account was kept in an unlocked drawer of an office desk inside the Company.  On 16 June 2008, one of the victims found that a cheque was missing and they made inquiry with the Bank of East Asia Limited regarding the missing cheque.

4.  After investigation, it was found that someone had presented the missing cheque in the sum of $5,000 for payment with one Nelson Property Agency as the payee.  The victims confirmed that the signatures on the cheque were not theirs.

5.  At about 11.45 am on 18 July 2008, the Defendant, who was a customer known to one of the victims, asked to use the toilet of the Company.  The Defendant left the Company after a few minutes without making any purchase.  Feeling suspicious, that particular victim checked his belongings and found that another cheque was missing.  He made a report to the police.

6.  At about noon on 18 July 2008, the Defendant produced his Hong Kong Identity card and the second missing cheque to the Pau Chung Street branch of the Bank of East Asia Limited to cash $6,000.  The Defendant put his own name on this cheque as the payee.

7.  The bank teller found out that the signatures on the second missing cheque were different to the specimen signatures and he made an inquiry with the To Kwa Wan of the bank.  Upon such inquiry, the bank teller was informed that the victims had made a loss report regarding the second missing cheque.  A report was then made to the police.

8.  At about 12.25 pm on the same day, the police came to the bank and arrested the Defendant.  Upon inquiry under caution, the Defendant admitted stealing the second missing cheque from the Company at noon.  The chequebook was stored in an unlocked drawer.  He stole a cheque and made it payable to himself and forged the two signatures on it before presenting it for payment.  This incident relates to the offences under the 3rd and 4th charges.

9.  In a subsequent cautioned interview, the Defendant further admitted that on 11 June 2008, while purporting to ask for use of toilet, he had entered the Company to steal a cheque from a chequebook which was kept in an unlocked drawer.  He made it $5,000 payable to Nelson Property Agency on the cheque and forged the two signatures on it.  He then presented it to Nelson Property Agency to settle one and a half months of rental payment.  This incident relates to the offences under the 1st and 2nd charges.

10.  The Defendant is aged 29 and he has a clear record.  Before sentencing the Defendant, I have called for a Community Service Order report.  According to the report, the Defendant was able to live a law-abiding life until the present offences.  After completing Form 4 study and one year of vocational training in mechanical engineering, the Defendant had taken up different jobs. 

11.  In 2008, his income as a driver became unstable.  As he was under pressure to pay the outstanding rental, he committed the present offences.  He was genuinely remorseful for his own misdeed and his parents have given a lot of support for the rehabilitation of the Defendant.  In view of these factors, a Community Service Order is recommended in the present case. 

12.  Theft and forgery are very serious offences.  However, the amounts of the money involved in the present offences are relatively small.  Further, these were amateur thefts and were easily detectible.  The Defendant did not know the specimen signatures of the victims and so he just put two signatures on the cheques and present them for payment.  Quite surprisingly, the bank did not verify the signatures and money was deducted from the bank account of the victims for the payment under the first missing cheque.  When the Defendant presented the second missing cheque for payment, he did not attempt to conceal his own identity and put down his own name as the payee.

13.  Full restitution was made to the victims in the present case.  The Defendant was a friend of the victims and a letter was written by the latter to the court to ask for leniency in respect of the sentence. 

14.  In HKSAR v Chor Chek Man & Anor, CACC 447 of 1998, the Court of Appeal has given some guidance on the type of offenders who can be said to be best suited to Community Service Orders.  In the present case, I must say that the Defendant fits into nearly all of the six categories.  He has a clear record.  He comes from a stable home background and he has a supportive family.  He has a good job record and a job.  He has shown genuine remorse and, as I see it, the risk of re-offending is small. 

15.  Coupled these factors with the small amounts and the amateur nature of the offences and the making of full restitution, I am a view that a chance should be given to the Defendant.  I agree that a Community Service Order is an alternative to imprisonment and one that may be of more use in rehabilitating the Defendant in this situation than an immediate custodial sentence.

16.  Subject to the consent of the Defendant, I therefore impose a Community Service Order of 240 hours for the four charges.