HKSAR v. TO SHU TONG

HCCC 373/2025

[2026] HKCFI 3711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 373 OF 2025

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  On 20 October 2025 the defendant pleaded guilty to three charges of theft contrary to Section 9 of the Theft Ordinance Cap 210, before a magistrate at the Eastern Magistracy.

The Charges

2.  The defendant admitted that he stole choses in action, namely debts in the sum of HK$3,179,500(Charge 1), HK$44,733,239.44(Charge 2)  and HK$2,816,792 (Charge 3)  owed by the Hong Kong Shanghai Banking Corporation Limited to Liu Yan, the property belonging to Liu Yan. 

3.  The dates to which the defendant stole the choses in action were as follows: -

(i)  Charge 1 between 4 March 2013 and 31 July 2013 both dates inclusive;

(ii)  Charge 2 between 18 July 2011 and 2 September 2013 both dates inclusive and

(iii)  Charge 3 between 18 July 2011 and 2 September 2013 both dates inclusive.

4.  As a result of the defendant’s pleas of guilty he was committed to the Court of First Instance for sentence.

Facts

5.  The summary of facts dated 9 October 2025 was admitted by the defendant as correct.

6.  In 2009, the defendant and his ex-employee Liang Yi (Liang)  and wife Liu Yan (Liu)  set up a company, namely Link Full AP Investment Limited (Link Full)  which was engaged in the electronic trading business in Hong Kong.  Link Full held an HSBC account (LF A/C)  of which Liu and the defendant were the signatories however the defendant was entrusted to operate the account. 

7.  Later in 2011, Liang and Liu set up another company namely China Greenfield Investment Limited (China Greenfield)  for the purposes of running a money lending business in Hong Kong.  China Greenfield held an HSBC account of which Liu and Liang were the signatories however the defendant was entrusted to operate the account. 

8.  At all material times Liu held an HSBC account of which she was the sole signatory (Liu’s A/C). 

9.  At all material times the defendant held an HSBC account of which he was the sole signatory (the defendant’s A/C). 

10.  As Liang and Liu were not familiar with Hong Kong based business they only contributed the capital and entrusted the businesses of Full Link and China Greenfield to the defendant. 

Link Full’s operation

11.  According to Liu, Link Full was involved in electronic trading business.  The defendant was the sole person operating Link Full.  The defendant was responsible for the purchase and resale of the electronic products. 

12.  For each intended purchase of products, the defendant sent emails containing an application form applying for funds to Liu’s assistant in the Mainland.  Each application form contained particulars as to the order payment amount, purchase item details, expected profits, order payment method and designated bank account for Liu to pay the monies into. 

13.  Liu would consider the application for funds when it was received and if she approved the purchase Liu would transfer the requested amount from Liu’s A/C to the designated recipients accounts stated on the application form.  As Liu fully trusted the defendant, Liu did not enquire with the defendant about the identity of the suppliers or the purchases and had not seen the actual products purchased 

China Greenfield’s operation

14.  According to Liu, China Greenfield was engaged in the money-lending business. The defendant was the sole person operating China Greenfield.  The defendant was responsible for finding customers who needed loans.  The defendant sent emails containing application forms to Liu or her assistant in the Mainland particularizing the name of the applicant (personal or company name), the director of the company, the business of the company, the loan requested, the loan period, interest rate and repayment method. 

15.  Liu would consider the application and if she approved the loan, Liu would transfer the requested amount to the designated borrowers bank account or accounts according to what was stated by the defendant on the form. 

16.  Upon the due date the defendant would transfer the principal and interest for the loan into Liu’s A/C or China Greenfield’s bank account. 

17.  As Liu fully trusted the defendant she did not enquire with the defendant about the identity of the borrowers or how the loans were transferred to and repayments were received from the borrowers. 

18.  In September 2013, Liu’s friend wanted to co-invest with her and asked for the companies business proof.  Liu accordingly requested the defendant for the clients information regarding the outstanding loans and transaction proofs but the defendant failed to provide the requested items.

Admission of the defendant

19.  On 27 September 2013 Liu met the defendant at a hotel in Tsim Sha Tsui and requested for the urgent repayment of the loans.  The defendant informed Liu that in fact only 5 borrowers in China Greenfield were real and all the other purported businesses were fictitious.

20.  On 30 September 2013 Liu met the defendant at a solicitors firm in Hong Kong where the defendant signed and confirmed in writing inter alia the following: -

(i)  that he was entrusted by Liu to solely operate Link Full and China Greenfield,

(ii)  the companies only allowed the defendant to use legal and proper means to operate and use the funds;

(iii)  however as in the recent company audit, large scale of funds were applied for via improper means;

(iv)  between 2011 and 2013 during the operation of Link Full and China Greenfield the defendant had used different excuses to get cash from Liu and Liang totalling about HK$16.9M;

(v)  the defendant admitted he embezzled Link Full and China Greenfield monies and for purposes outside the applied purposes leading to the companies inability to recover the funds;

(vi)  The defendant admitted all the businesses except a few were fictitious and amongst all monies applied for only about HK$6 million was used for the companies real business and

(vii)  The defendant agreed to repay Liu by instalments.

21.  On 31 October 2013 defendant repaid HK$500,000 to Liu as agreed, however no further repayment was made.  Liu then reported the case to the police 5 December 2013.

22.  On 10 April 2015 the police arrested the defendant for the offence of deception regarding defendant’s use of Link Full and China Greenfield in deceiving Liu for an amount of about HK$19 million.  The defendant stated under caution “I understand. I used fictitious loan information to deceive Liu.”

23.  In video recorded interviews under caution the defendant admitted in relation to Link Full that during the period he had requested the monies stated in charge 1 to be provided by Liu by 7 individual fictious applications as per annex A attached to the summary of facts (subject matter of charge 1). 

24.  The defendant further admitted in relation to China Greenfield that between the dates as stated in charge 2 he made fictitious loan applications in the name of 30 persons and companies and as a result a total sum of HK$44,733,239.44 was transferred from Liu’s A/C to the defendant’s A/C as per annex B attached to the summary facts (subject matter of charge 2)  and a total sum of HK$2,816,792 was transferred from Liu’s A/C to LF A/C (subject matter of charge 3).

25.  The defendant confessed that he made the false application and the fictitious loans and purchase orders and sent the emails himself.  The monies were used for the defendant’s own business and he had spent all the money already.  He further admitted that earlier fictitious purchases and loans were repaid by sums he obtained from Liu for subsequent fictitious purchases and loans. 

26.  Despite the monies that the defendant admitted to have stolen in the charge it was admitted between the prosecution and the defence’s independent accountants having examined other bank accounts of Liu that after deducting purported repayment with “profits” for fictitious loans not charged the loss actually incurred by Liu was:

(1)  HK$2,564,346 for Link Full in charge 1

(2)  HK$893,456.69 for China Greenfield in charges 2 and 3.

(3)  Total loss of HK$3,457,802.69

Mitigation

27.  Ms Cindy Lee, counsel for the defendant submitted written mitigation as well as letters from his wife, the defendant’s two adult children, the defendant’s three older male cousins, the defendant’s friend, a Pastor and thirteen fellow inmates.  The letters in summary state, the defendant is a considerate and caring man always willing to help others despite the adversity to himself.  He is a loving husband and father who presented himself as a good role model for his three children who have now all achieved success in their careers.  He had strived hard all his life to have a successful business and what he did was to save his own business, dignity and pride.  What he did in the commission of these offences were out of character. 

28.  The defendant is aged 74.  He was born in Mainland China in October 1951.  He has a clear record.  He married his wife in 1970, she is now 74 and is a housewife.  They have 3 children, namely, the eldest daughter now 54, the youngest daughter now 48 and the only son aged 38.

29.  Prior to the defendant’s remand the defendant was living with his wife and youngest daughter at Tsing Lung Tau in a private residential unit.  His wife and the youngest daughter are the joint owners of the property.

30.  After the death of his mother when the defendant was 9 years old, he came to live with his father in Hong Kong.  He was only educated up to Form 1 as he had to support his family.  However he continued his studies whilst he worked.  The defendant started off as a messenger in Chase Manhattan bank in 1970.  After passing a course in banking at the HK Polytechnic he was promoted as an officer in 1978.  In 1980 he left the bank and in 1983 after some experience at a paging company explored the telecommunication field in the Mainland. 

31.  In 1990 he set up his own telecommunications company and came to know Lin’s husband who was then his employee.  However, in the mid 90’s pagers became less popular with the introduction of portable phones and in 1998 the defendant applied for bankruptcy as a result of his business failure. 

32.  In 2008 he set up a trading company called Linkcomm Limited.  The defendant admitted the business turnover in Linkcomm resulted in him borrowing from various financial companies even though he used the money stolen from Liu to assist him.  However, since the defendant’s arrest in 2015 this business failed and he again applied for bankruptcy.

33.  Since 2015 the defendant was only able to work on a part time basis either rendering assistance in marketing and/or accounting services in telecommunication companies.  Prior to his arrest he was only earning about HK$3,000 per month. 

Circumstances leading to the offence

34.  The defendant frankly admitted he abused the trust Liu had placed upon him when he committed the offences.  The money was obtained easily from Liu. He took advantage of his deceiving Liu to benefit his own business, without the deception he stated that he would not have been able to have his own business. His own business was however running at a loss and he owed money to various finance companies, relatives and friends due to the downturn of the global economy.  Out of his stubbornness and vanity, he did not want to declare bankruptcy again.  The defendant therefore began to prepare false loan applications with a view to cover the loss of his own business.  The defendant stated all through the years, he had incurred complete loss of capital and no profit.

35.  Ms Lee rightly concedes that is plainly a breach of trust case but submits that although the amount mentioned in the charges exceed slightly over HK$50 million, the actual loss by the victim is of paramount consideration.  Ms Lee has referred to the leading case laying down guidelines in sentencing for breach of trust of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776.

36.  It was submitted by Ms Lee that there was a significant delay in this case justifying a reduction in sentence.  The defendant was only charged with the offences in July 2022 yet he was arrested by the police in April 2015. She relies on the discussion and factors to be taken into consideration in HKSAR v CHIU Chi Wing (CACC 243 of 2012)  at paragraph 37. 

Discussion

37.  At the time of commission of the offences, the defendant was between the ages of 60 and 62 years old.  By that time, he had already declared himself bankrupt as a result of a failed business venture.  Out of greed and despite the failing of his business carried out by Linkcomm he did not want to face the reality and abused the trust placed in him by Liu. 

38.  This was a clear breach of trust case.  The defendant had abused his trust of Liu and her husband in deceiving them that he was running a business for them in Hong Kong.  His dishonest measures on Liu to transfer money to him to salvage his failing business was scheming, premeditated and calculated.  He deliberately falsified names of people, companies and businesses for the benefit of his own company.  Despite the huge sums of money stolen, his business still collapsed.  These offences took place from July 2011 to September 2013 a period of just over 2 years.  The amount deceived was in the total sum of HK$50,729,531.44. 

39.  Ms Sabra Lo, Senior Public Prosecutor has submitted the case of HKSAR v Chong Hung Shek [2019] 2 HKLRD 937.  This case illustrates that Ms Lee’s submission in sentencing the defendant on the actual loss would be wrong.  The Court of Appeal held in Chong that the particularized amount of the theft in the charge is the correct amount to be taken into account to determine which sentencing band each of the charges fell and it was wrong in principle to use the actual loss to determine the correct sentencing band.   The actual loss was simply a matter of mitigation. 

40.  The appropriate starting point are those as laid down in the guideline cases for breach of trust cases in Cheung Mee Kiu and slightly revised in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  The relevant guidelines are:

(a)  involving $15 million or more: 10 years or above;

(b)  involving $3 million to $15 million: 5 to 10 years;

(c)  involving $1 million to $3 million: 3 to 5 years;

(d)  involving $250,000 to $1 million: 2 to 3 years; and

(e)  involving $250,000 or less: below 2 years.

41.  In the present case the total amount stolen in the three charges was about HK$50 million, that falls within the bracket of involving $15 million or more which attracts a starting point of over 10 years imprisonment.  For this amount I consider a starting point of 15 years imprisonment to be appropriate as a global sentence of the defendant’s culpability.  In order to allow for the actual loss of about HK$3.4 million resulting from the theft I reduce the starting point to that of 10 years imprisonment.  The defendant pleaded guilty at the earliest opportunity and for this he is entitled to a further one third discount making the sentence 6 years 8 months imprisonment.

42.  I consider the delay from the time the defendant was arrested in 2015 to the time the defendant was charged in July 2022 and to the time of sentencing today which is about a period of 10 years to be a mitigating factor as it resulted in psychiatric distress on him due to the significant time that has passed.  I further reduce the sentence by 1 year.  In the circumstances I sentence the defendant to a global sentence of 5 years 8 months to which he shall serve. 

43.  In arriving at the above global sentence, I turn now to sentence the defendant for the individual offences.  In following the above guidelines of Cheung Mee Kiu and Ng Kwok Wing the sentences are as follows: -

(1)  Charge 1 – the amount stolen was in the amount of HK$3,179,500. I take a starting point of 5 years 3 months and reduce that term to 3 years 6 months allowing for the defendant’s plea of guilty. Taking into account the actual loss resulting I further reduce that term to 3 years and for the delay a further discount of 4 months making the sentence on charge 1 to be 2 years 8 months imprisonment.

(2)  Charge 2 the amount stolen was in the amount of HK$44,733,239.44. I take a starting point of 15 years imprisonment and reduce that term to 10 years imprisonment allowing for the defendant’s plea of guilty. Taking into account the actual loss resulting I further reduce that term to 5 years and for the delay further discount of 4 months making the sentence on charge 2 to be 4 years 8 months imprisonment.

(3)  Charge 3 the amount stolen was in the amount of HK$2,816,792. I take a starting point of 4 years 9 months imprisonment and reduce that term to 3 years 2 months imprisonment allowing for the defendant’s plea of guilty. Taking into account the actual loss resulting I further reduce the term to 2 years 2 months and for the delay a further discount of 4 months making the sentence on charge 3 to be 1 year 10 months imprisonment.

44.  To reflect the global sentence of 5 years 8 months imprisonment I order 1 year in charge 1 to run consecutive to charge 2 and the remainder of the terms to run concurrent to each other.