HKSAR v. TAM KING YUN (also known as TAM YUK FUNG)

DCCC 468/2021

[2021] HKDC 960

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 468 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 3 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

Admitted facts

2.  In about 2010, Mr Liao Yongzhong (“PW1”)  set up a limited company known as KANGTAISHENGSHI JEWELLERY LIMITED in Hong Kong to operate his diamond trading business (“the Company”).  In about 2013, PW1 renamed the Company as L. RAINBOW INTERNATIONAL LIMITED.  As PW1 lived in China, he employed the defendant to be the company director to deal with his diamond trading business in Hong Kong.

3.  The Company had a bank account with HSBC numbered 817-XXXXXX-838 (“the Account”).  To enable the defendant to handle all business dealings in relation to the Company, PW1 arranged for the defendant to be one of the signatories.  Nonetheless, the defendant had to obtain PW1’s consent before making a withdrawal and also had to prepare a monthly ledger for PW1’s review.

4.  In January 2016, PW1 was dissatisfied with the defendant’s work performance and thus terminated his employment.  In late 2016, PW1 renamed the Company as CREATED DIAMONDS COMPANY LIMITED and moved the office from Tsimshatsui to Hunghom.

5.  In March 2017, as PW1 was in need of assistance in handling his business in Hong Kong, he employed the defendant again but removed him from being a signatory of the Account.  However, HSBC was unable to remove the defendant from the list of signatories.  Considering that the Account had little funds, PW1 did not bother to follow up the matter.

6.  On 4 and 5 May 2017, PW1’s client made two deposits, totaling US$300,000 into the Account.  The defendant reminded PW1 that HSBC had not yet removed him from the list of signatories.  PW1 therefore asked the defendant to transfer the US$300,000 into his bank account in China.  Subsequently, the defendant told him that the Hong Kong Monetary Authority had frozen the Account and thus no transfers could be made until 22 June 2017.

7.  On 22 June 2017, PW1 came to Hong Kong to check the status of the Account.  He then discovered that the Account was left with US$22.95.  He confronted the defendant as to the whereabouts of the funds.  The defendant confessed that he had taken the funds out and gambled all of it away and promised that he would repay in 2 days.

8.  Upon review of the Account statements and verification of the figures with the Company’s documents, PW1 discovered the following unauthorized withdrawals, which amounted to a total of HK$263,600 from the HKD Savings Account (Charge 1), HK$12,500 from the HKD current account (Charge 2)  and US$240,000 from the USD account (Charge 3):-

(a)  HK$77,600 from the HKD savings account on 29 April 2017 (T1);

(b)  US$15,000 from the USD account on 2 May 2017 (T2);

(c)  US$40,000 from the USD account on 4 May 2017 (T3);

(d)  US$20,000 from the USD account on 5 May 2017 (T4);

(e)  US$20,000 from the USD account on 5 May 2017 (T5);

(f)  US$10,000 from the USD account on 5 May 2017 (T6);

(g)  US$40,000 from the USD account on 6 May 2017 (T7);

(h)  US$25,000 from the USD account on 8 May 2017 (T8);

(i)  US$50,000 from the USD account on 8 May 2017 (T9);

(j)  HK$155,000 from the HKD savings account on 10 May 2017 (T10);

(k)  US$20,000 from the USD account on 13 May 2017 (T11);

(l)  HK$31,000 from the HKD savings account on 18 May 2017 (T12);

(m)  HK$10,000 from the HKD current account on 19 May 2017 (T13);

(n)  HK$2,500 from the HKD current account on 25 May 2019 (T14).

9.  The bank statements of the Account showed T1 to T14.

10.  The transaction slips of T1 to T14 were retrieved from the bank, showing the details of each transaction, as follows:-

(a)  T1 was a transfer of US$10,000 from the USD account to the HKD savings account which was followed by a cash withdrawal of HK$77,600 from the HKD savings account on 29 April 2017;

(b)  T2 was a cash withdrawal of US$15,000 in HKD currency on 2 May 2017;

(c)  T3 was a cash withdrawal of US$40,000 in HKD currency on 4 May 2017;

(d)  T4 was a cash withdrawal of US$20,000 in HKD currency on 5 May 2017;

(e)  T5 was a cash withdrawal of US$20,000 in USD currency on 5 May 2017;

(f)  T6 was a cash withdrawal of US$10,000 in HKD currency on 5 May 2017;

(g)  T7 was a cash withdrawal of US$40,000 in HKD currency on 6 May 2017;

(h)  T8 was a cash withdrawal of US$25,000 in HKD currency on 8 May 2017;

(i)  T9 was a cash withdrawal of US$50,000 in USD currency on 8 May 2017;

(j)  T10 involved a transfer of US$20,000 from the USD account to the HKD savings account and a subsequent cash withdrawal of HK$155,000 from the HKD savings account on 10 May 2017;

(k)  T11 was a withdrawal of US$20,000 in HKD currency on 13 May 2017;

(l)  T12 involved a transfer of US$4,000 from the USD account to the HKD savings account and a subsequent cash withdrawal of HK$31,000 from the HKD savings account on 18 May 2017;

(m)  T13 was a withdrawal of HK$10,000 in HKD currency on 19 May 2017;

(n)  T14 was a withdrawal of HK$2,500 in HKD currency on 25 May 2017.

11.  The CCTV cameras of the HSBC branch at Mei Foo Sun Chuen captured the defendant conducted T1, T2, T7, T11 and T13 via bank counters.

12.  The CCTV cameras of the HSBC branch at Hunghom Commercial Centre (located at 26 Ma Tau Wai Road, Kowloon)  captured the defendant conducted T3, T4, T5, T6, T8, T9, T10 and T14 via bank counters.

13.  At around 12.15 pm on 24 June 2017, while PC 21041 (PW2)  was on duty at the Reporting Room of Wanchai Police Station, the defendant came to surrender himself and admitted that he, as a former director of the Company, withdrew a total sum of HK$2,421,546.24 from the Account without consent and gambled it all away.

14.  The defendant produced the advices issued by HSBC showing T1-T14.

15.  At about 2.45 pm on the same day, PW2 arrested the defendant for the offence of theft.  Under caution, the defendant stated that out of momentary greed, he stole the money for gambling and that he had gambled all of it away.

16.  In the interview conducted on 24 June 2017, the defendant said the following under caution:-

(a)  In 2012, he joined the Company as a manager. In 2013, the Company was renamed as L RAINBOW INTERNATIONAL LIMITED and he was appointed as a director. He was responsible for handling all matters in relation to the Company, including dealing with finances;

(b)  The Company had a bank account with HSBC, namely the Account. He and PW1 were the signatories. Either one of them could withdraw funds from the Account. Nonetheless, he had to obtain PW1’s consent before dealing with any of the funds in the Account;

(c)  He wanted to become rich, so he took about HK$2 million from the Account and used it for gambling in Macau. He lost all of it;

(d)  The first time he took money from the Account was 29 April 2017. He went to the HSBC branch in Mei Foo Sun Chuen and asked for a withdrawal of US$10,000. He exchanged it into HKD currency and took the money to Macau for gambling. He did not tell PW1 about it;

(e)  T1 was the first withdrawal. He asked the bank staff to change the US$10,000 to HK$77,610. The transaction advice he produced showed the withdrawal of HK$77,600 in cash;

(f)  T2 was a withdrawal made by him on 2 May 2017 at the HSBC branch at 26 Ma Tau Wai Road. He asked the bank staff to exchange the US$15,000 to HKD currency and took HK$116,451 in cash;

(g)  T3 was a withdrawal of US$40,000. He asked the bank staff to exchange it to HK$310,740 and took the cash to Macau;

(h)  T4 was a withdrawal of US$20,000. He asked the bank staff to exchange it to HK$155,334 and took the cash to Macau;

(i)  T5 and T6 were withdrawals made on the same day as T4, namely 5 May 2017. He did not exchange the US$20,000 in T5 to HKD currency. He just took the cash in USD. He then withdrew a further US$10,000 (T6)  and asked the bank staff to exchange it to HK$77,667. He went gambling in Macau with all the cash;

(j)  T7 was a withdrawal of US$40,000. He asked the bank staff to exchange it to HK$310,796 and too the cash to Macau;

(k)  T8 and T9 were withdrawals made on 8 May 2017. He asked the bank staff to exchange the 2 sums of US$5,000 and US$25,000 in T8 separately to HKD currency and took the exchanged sums of HK$38,837 and HK$194,260 in cash. He did not exchange the US$50,000 in T9 to HKD currency. He just took the cash in USD;

(l)  T10 was the withdrawal of US$20,000. He asked the bank staff to exchange it to HKD currency (HK$155,388). He then took a sum of HK$155,000 from it in cash;

(m)  T11 was a withdrawal of US$20,000. He asked the bank staff to exchange it to HK$155,528 and took the cash to Macau;

(n)  As the Account was running out of money, he withdrew US$4,000 (as in T12)  and exchanged it to HK$31,075. He took the money in cash but did not go to Macau on that day;

(o)  T13 was a withdrawal of HK$10,000. He took the cash to Macau for gambling;

(p)  The Account ran out of money. He only withdrew US$200 (as in T14)  and exchanged it to HK$1,554. He took the cash and used it for his daily expenses.

17.  In the video-recorded interview conducted on 25 June 2017 and 16 January 2018, the defendant admitted under caution that:-

(a)  The Company had a bank account with HSBC, namely the Account. The funds in the Account were to be used for paying the operating expenses of the Company, such as rent and utilities. PW1 lived in China, so he relied on the defendant to handle the matters in relation to the Company, including finances. He was therefore made to be one of the signatories of the Account;

(b)  He knew that PW1 would never allow him to withdraw the money belonging to the Company from the Account for gambling;

(c)  He surrendered himself to the police because he knew it was wrong for him to steal the Company’s money;

(d)  He stole the Company’s money on 14 occasions, amounting to a total of HK$2,138,500. He used all the stolen money to gamble in Macau. He had lost all the money;

(e)  The signatories that appeared on the transaction slips of T1-T14 were his;

(f)  The advices (which he produced)  were given to him respectively by the bank staff after each of the transactions. The information as shown on the documents was correct. All the transactions were done by him without PW1’s consent;

(g)  The male in the CCTV footage was him;

(h)  After each transaction, he took the money withdrawn from the Account to Macau and gambled at Sands Macau. He had lost all of the money on gambling.

The defendant’s background and mitigation

18.  The defendant is now 52 years old and had a clear record.  He was born in China and came to settle in Hong Kong in 1991.  He received primary level education.  He is single and resides with his 74 year-old mother and one of his younger sisters.  He has two other younger sisters who live in the Mainland.  His father passed away in 2010.

19.  The defendant has been unemployed since June 2017.  He is not on social security and lives on the earnings of his younger sister (who works as a clerk)  and friends.

20.  He used to work in the family carton manufacturing business founded by his father in 1988.  He initially assisted at factories in the Mainland and later at the branch office in Hong Kong.  In about 1997, the family business went seriously downhill.  Coupled with the default in payment by a major customer, the family business ceased operation.

21.  The failure of the business brought about a huge debt.  The defendant’s father owed a clansman a sum of about RMB 2 million.  This debt remained unpaid.  After the defendant’s father passed away, the creditor turned to the defendant for repayment.

22.  After the family business ceased operation, the defendant worked as a security guard for a few years.  Since about 2010, he worked as a construction site worker.  He started working for PW1 in 2013.

23.  The defendant accepts that he had the habit of gambling since the 1990s – in casinos in Macau and betting on horses.  That habit had never gotten him into trouble before.  Since this incident, he has refrained from going to casinos in Macau.

24.  In February 2017, his father’s creditor (who was a Mainlander)  approached the defendant and demanded for full repayment with interest (about RMB 2.7 million).  The defendant was under huge pressure.  Under a misguided attempt to make himself a fortune through gambling, he, without authority, made the first withdrawal from the Account.  After losing the money at the casino, he wrongly made the subsequent withdrawals under further misguided attempts to win at casinos to make good the loss.  He accepts what he did was seriously wrong.  He is remorseful and accepts responsibility for his misdeeds.

25.  Counsel conceded that this is a breach of trust case and that the sentencing guidelines laid down in HKSAR v Cheung Mei Kiu [2006] 4 HKLRD 776 as later revised by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 are applicable.  Those guidelines are as follows:-

HK$15 million or more 10 years or above

HK$3 million to HK$15 million 5 to 10 years

HK$1 million to HK$3 million 3 to 5 years

HK$250,000 to HK$ 1 million 2 to 3 years

HK$250,000 or less below 2 years

26.  Counsel further conceded that:-

(1)  The amount involved in Charge 1 is HK$263,600 which falls within the lower end of the HK$250,000 to HK$1 million band of the guidelines (ie 2 to 3 years);

(2)  The amount involved in Charge 2 is HK$12,500 which falls within the lowest band of the guidelines (below 2 years);

(3)  The amount involved in Charge 3 is US$240,000 which falls within the HK$1 million to HK$3 million band of the guidelines.

27.  There is no dispute that the total amount involved in the 3 charges is HK$2,138,500, which falls slightly above the mid-range of the HK$1 million to HK$3 million band of the guidelines (ie 3 to 5 years’ imprisonment).

28.  In Ng Kwok Wing (supra), the two defendants who were co-habitees pleaded guilty to theft and attempted theft.  D2 took cheques belonging to her three successive employers, changed the names of the payees to that of D1, and had those cheques deposited into D1’s bank account or another bank account.  D1 then withdrew the relevant monies from those accounts for the defendants’ use.  The total amount of money stolen was approximately HK$2,000,000, and the defendants had spent part of the money.  Both D1 and D2 had extensive conviction records, most of which were for theft and other offences involving dishonesty.  The Judge adopted starting points of 6 years and 6 years and 9 months for D1 and D2 respectively, and reduced the terms to 4 years and 4½ years on account of the guilty pleas.  The Judge further reduced D2’s term to 4 years by reason of her willingness to testify against D1 in court.  The defendants applied for leave to appeal against sentence.

29.  In allowing the appeals, the Court of Appeal stated that the case was a relatively serious one, with three different companies suffering losses as a result of the defendants’ offences which were clearly premeditated.  Had the offences not been discovered, the defendants would certainly inflict further harm to the companies.  The defendants’ extensive conviction records were also aggravating factors.  Following the revised sentencing guidelines, the basic starting point should be 4 years.  Taking into account the aggravating factors, the appropriate starting points for D1 and D2 were 5 years 3 months and 5½ years respectively.  Both terms were reduced to 3½ years on account of the guilty pleas and D2’s willingness to testify against D1.

30.  Counsel referred to the case of HKSAR v Yeung Sze Ling (also known as Yong Kam Ling) DCCC 1162/2016.  In that case the defendant stole about HK$2 million from her employer.  The defendant was employed as an administrative assistant by a small cosmetic company.  She was in charge of the monthly payroll preparation.  She prepared the monthly payroll statements for the employer’s approval.  Upon approval, the salary would be transferred from the company’s bank account to the relevant employee’s personal bank account.  From 2011 to 2015, without the employer’s knowledge, the defendant falsified the monthly statements so that the employer overpaid her bank account for about HK$2 million.  Towards the last year of her wrongdoing, the defendant even included her brother’s name into the statement so that the employer paid this fictitious employee’s bank account as well.  She then asked her brother for the return of the proceeds.  She used all the money for her family expenditure and on her mother’s private hospital bill.  In 2015, the bank spotted the irregularities in the account and informed the employer.  The defendant’s misdeeds were uncovered and a report was made to the police, whereupon the defendant frankly admitted her guilt.  The defendant had one theft conviction in 1998 (ie 20 years ago)  when she was placed on probation.  She was 36 years old, married but separated since 2010.  She has 2 young daughters aged 6 and 9.

31.  The learned judge rehearsed the factors set out in R v Barrick [1995] 81 Cr App R, which are:-

(1)  The quality and degree of trust reposed in the offender including his rank;

(2)  The period over which the fraud or the thefts have been perpetrated;

(3)  The use to which the money or property dishonestly taken was put;

(4)  The effect upon the victim;

(5)  The impact of the offences on the public and public confidence;

(6)  The effect upon fellow employees or partners;

(7)  The effect on the offender himself;

(8)  His own history;

(9)  Those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; or where, as happens, there has been a long delay, say over 2 years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

32.  The learned judge also referred to HKSAR v Lee Lai Kit Kitty CACC 379/2008 where an accounting clerk transferred a single sum of about HK$2 million from the company bank account to a third party account.  In that case, the trial judge adopted a starting point of 42 months’ imprisonment.  The Court of Appeal reduced the starting point to 34 months because:-

(1)  The employer was almost fully repaid (albeit by the third party and not by the defendant), the employer suffered no loss;

(2)  It was a single act of wrong doing.

33.  Despite the marked difference between the case before him and Lee Lai Kit Kitty, the learned judge departed from the sentencing guidelines and adopted a starting point of 36 months’ imprisonment, which was then reduced to 24 months on account of the defendant’s guilty plea.  No reasons were given.

34.  This court agrees that sentencing guidelines are not strait jackets.  However, they should only be departed from with reason.

35.  Further, Yeung Sze Ling was a District Court case and is therefore not binding on this court.  In Yeung Sze Ling, the defendant was only an administrative clerk, whereas the defendant in the present case was entrusted with the entire company.  There is a marked difference in the degree of trust reposed in the defendant.

36.  The facts in the present case are also very different from Lee Lai Kit Kitty.  In that case, there was only one transfer of a single amount, whereas in the present case, there were 14 withdrawals spanning over one month, which only stopped because the account ran out of money.  In Lee Lai Kit Kitty the employer suffered no loss.  In the present case, there is no prospect of any restitution.

37.  This court declines to follow the decision in Yeung Sze Ling.  Instead, the court will follow the guidelines laid down by the Court of Appeal in Ng Kwok Wing.

38.  The defendant gambled away all the money he stole from PW1.  The defendant explained that he was under financial pressure to repay his late father’s debt. I do not accept that explanation.  The defendant’s father died in 2010.  Yet according to the defendant, the creditor only pressured him for payment in 2017, 7 years after his father’s death and the debts was incurred in 1997.  Firstly, the defendant is not legally liable for the debt.  Even if he were liable, the debt is already time barred.  Secondly, the defendant explained to the police that he stole the money to gamble in an attempt to get rich and out of monetary great.  His present explanation is inconsistent with what he told the police. 

39.  Although there are 3 charges, counsel submitted that the offences all arose out of the same set of facts or was committed in the course of a single (larger)  transaction, involving money from the same single account of a single victim.  He asked the court to treat the offences as a single larger transaction and to consider totality in the overall sentence.

40.  The court is required to consider the totality principle in any event, not only when the offences are treated as a single incident.  It is wrong in principle for the court not to consider and adopt a separate starting point for each charge before considering totality.  Far from being a mitigating factor, committing multiple offences within a short period of time is an aggravating factor.

41.  For Charge 1, I adopt a notional starting point of 2 years’ imprisonment.  For Charge 2, I adopt a notional starting point of 1 year imprisonment.  For Charge 3, I adopt a notional starting point of 4 years’ imprisonment.

42.  The defendant has pleaded guilty at the very first opportunity.  I give him full credit for his plea.  The sentence for Charge 1 is reduced to 16 months’ imprisonment.  The sentence for Charge 2 is reduced to 8 months’ imprisonment.  The sentence for Charge 3 is reduced to 32 months.

43.  I agree with counsel that there are a number of other mitigating factors.  PW1 did not report to the police.  The police only knew about the offences when the defendant surrendered himself.  Not only did the defendant surrender himself, he brought all the evidence along with him.

44.  In HKSAR v Lui Chun Yeung [2014] 2 HKLRD 993, the appellant pleaded guilty to blackmail.  The victim had made a report to the police and the appellant surrendered to the police station 4 days after the incident.  In sentencing the appellant, the trial judge reduced the sentence by 2 months.  The Court of Appeal granted an extra month reduction for the appellant’s surrender, making a reduction of 3 months.

45.  Further, the defendant was arrested on 24 June 2017 when he surrendered to the police.  According to the summary of facts, the investigation was completed at the latest by January 2018.  However, the defendant was not brought to court until 7 May 2021.  In other words, there was over 3 years of delay.  This was caused by the DOJ taking almost 3 years to advise on the charges of a perfectly simple case.

46.  In HKSAR v Chong Wing Hoi [2012] 4 HKLRD 973, the appellant was convicted after trial of fraud.  The offence was discovered in August 2008 but the appellant was not charged until August 2011.  In allowing the appeal against sentence, the Honourable Madam Justice Barnes reduced the sentence from 9 months to 7 months and granted a further half month discount in sentence on account of the delay in prosecution.  While reiterating the principle that delay in itself does not entitle the appellant to a discount in sentence, her Ladyship accepted that years of delay after arrest in bringing the case to trial, as a result of which the accused suffered great mental strain, can constitute a mitigating factor, except where such delay was brought about by the accused himself.

47.  In HKSAR v Cheng Kelly Kit Yin [2014] 4 HKLRD 34, the appellant pleaded guilty to 11 charges of conspiracy to defraud.  The offences were discovered in June 2004 but the appellant was not charged until December 2009 (a delay of 5½ years).  By reason of the appellant’s unsuccessful applications for a stay and judicial review, the arraignment of the appellant was further delayed to October 2013.  In sentencing the appellant, the trial Judge held that the delay in the prosecutorial process would have justified a 4-month reduction in sentence but withheld that reduction on the ground that it was “cancelled out” by the delay occasioned by the appellant’s unsuccessful applications.  The Court of Appeal, in allowing the appeal against sentence, opined that the withholding of the 4-month reduction was neither logical nor fair.  A reduction of 4 months was considered justified for a 5½ year prosecutorial delay.

48.  By reason of the above mentioned matters, the sentence for Charge 3 is further reduced by 6 months to take into account the defendant’s surrender to the police and for prosecutorial delay.  The sentence for Charge 3 is hence 26 months.

49.  Having considered the totality principle, I order that the sentences for charges 1 and 2 to be served concurrently.  12 months of the sentence in Charge 3 to be served consecutively to Charges 1 and 2. In other words, an overall sentence is 28 months.