HKSAR v. TSE SIU LING

DCCC 523/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 523 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 16 November 2015, the defendant pleaded guilty to one charge of theft, an offence that was preferred against her under section 9 of the Theft Ordinance, Cap 210.  On the joint application of the parties, the case was adjourned to 19 January 2016, pending a background report and further information on the restraint proceedings at the Court of First Instance.

Facts

2.  The defendant has, between 2006 and November 2013, worked as the cashier of Toyama Restaurants Limited. One of her duties was to obtain from the computer connected to the cashier a printout of daily revenue, which the management would seldom check.  In that period, she has had custody of the key to the safe and the responsibility for depositing the restaurant’s cash takings at the bank. 

3.  In early November 2013, the head chef noticed that the turnover had deteriorated despite a rise in the business volume of the restaurant.  A large number of bills had, it was discovered, been waived in their entirety.  A report was made to the police, which led quickly to the arrest of the defendant for an offence of theft. Under caution, she admitted having committed the offence but claimed that not all the money had been pocketed by her.  She added in subsequent video-recorded interviews that since 2008, the head chef had kept borrowing money from her, and when she did not have the money to lend him, he instructed her to take the money belonging to the restaurant to do so.  The head chef had, said the defendant, failed to repay the money to the restaurant, and in March 2009, she began using the computer to waive entire bills (save the 10% service charge) in order to reimburse the restaurant.  But later, she abused the bills-waiving function and had stolen the restaurant’s money to the tune of over $900,000, the exact amount of which she could no longer remember.  She said she had deposited the entire sum into her own bank account and had used around $700,000 of the money to settle the down payment in the purchase of her property in Tai Po; in addition, she had spent some $100,000 to $110,000 on travelling overseas and trading in securities.

4.  Before the defendant’s plea in mitigation, the prosecution have made an application for a confiscation order under section 8 of the Organized and Serious Crimes Ordinance, Cap 455. That application has now been adjourned pending the availability of a section 10 statement and the defendant’s reply, there being no dispute that theft is a specified offence within the meaning of that Ordinance.

Mitigation

5.  The defendant was born on the mainland in January 1968.  She came to live in Hong Kong in 1994 and has had a clear record prior to her current conviction.

6.  According to the background report, the defendant has failed to complete her Secondary Three studies on the mainland, and she dropped out of school at 16.  She commenced her work life as a worker in a textile factory in Dongguan and has worked in that capacity for some ten years.  She married a Hong Kong resident, who was 20 years her senior, and came to live in Hong in 1994.  She discovered on her arrival that her husband was without a job and was living on CSSA; her marriage lasted for only a year.  She got married with her present husband in 1997, and two children were born of this marriage (they are teenage students now).  She has, since her arrival in Hong Kong, worked firstly as a waitress and then as a cashier in three different restaurants until she was fired in November 2013 in consequence of her arrest by the police. 

7.  The defendant told the probation officer who prepared the background report for her that she had committed the present offence under the bad influence of the head chef and out of her own greediness. 

8.  In his plea in mitigation, Mr Joseph Lee appearing for the defendant submits that, first of all, in referring to the head chef in her cautioned interview, the defendant has not sought to shift the blame to him; she has merely provided the background to the offence; and she accepts her criminal responsibilities for the serious offence she has committed.  Mr Lee refers to the fact that there has been delay in the bringing of the charge against the defendant.  No blame, submits Mr Lee, is attributed to the prosecution in view of the nature of the offence in question; Mr Lee asks the court however to have regard to this factor in arriving at the sentence to be imposed on his client.  Mr Cheung appearing for the prosecution has fairly accepted that the delay has occurred through no fault of the defendant.  Finally, Mr Lee relies on the three mitigation letters by the defendant’s family members.  They all have high regard for the defendant for being a good wife, mother and daughter-in-law, who has spared no effort in providing for the family.  They are at one voice in their plea for leniency.

Reasons for sentence

9.  This is without dispute a case of theft committed in breach of trust.  The degree of trust the restaurant has had on the defendant has been a high and significant one.  She has been tasked to handle the business takings and to prepare the daily turnover records.  For over four and a half years, she has been able to conceal her thievish misconduct, involving a total of over $900,000.  It seems clear that but for the fact of her arrest in November 2013, by which time she must have become numb to her own offending, her habitual wrongdoings would have continued.  In HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, as explained in HKSAR v Ng Kwok Wing (transl.) [2008] 4 HKLRD 1017, a theft committed in breach of trust involving an amount between $250,000 and $1m would warrant a sentence between two and three years’ imprisonment.

10.  In all the circumstances, in view of the mitigation put forward to the court, and having regard to the contents of the mitigation letters, the appropriate starting point is one of two years and six months’ imprisonment.  The defendant is, for her guilty plea, entitled to one-third discount in sentence.  There is admittedly some delay with respect to her prosecution for the subject offence: she confessed to the crime immediately upon her arrest in November 2013 and was charged with the present offence some a year and a half later, during the better part of which period she has been gainfully employed as a casual room attendant at a hotel, making around $9,000 a month.  A two-month reduction in sentence is granted to the defendant on that score.

Conclusion

11.  For the offence of which she stands convicted, the defendant is sentenced to 18 months’ imprisonment.