HKSAR v. CHAN LOK CHAU WILLIAM

DCCC700/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.700 OF 2010

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Reasons for Sentence

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1. The defendant faces one charge of fraud and one charge of theft. He pleaded guilty, admitted to the summary of facts and was convicted on both charges.

Summary of Facts

2. At all material times the defendant was employed as the marketing executive of International Information and Consultancy (‘ABRS’). By virtue of his position, he was reposed with the duty of collecting course fees from the students and issuance of official receipts to the students on behalf of ABRS.

Charge 1:

3.  Between March 2006 and March 2007, the defendant defrauded the students of their payment of fees and deposited the cash or checks paid to him as school fees into his own bank accounts.

Charge 2:

4.  On 17^th March 2007, staff of ABRS found certain receipts missing. Upon reporting to the Police, and by the defendant’s own confession, the defendant confirmed he had stolen the 110 receipts for school fees as set out in charge 2.

Mitigation:

5.  The defendant had a clear record. The defendant is 34, his father had passed away and his mother is 60 years old. The defendant is now working as a private tutor in Shenzhen earning about 15,000RMB per month. Before that, the defendant was a marketing executive in the company of this offence, earning about 13,000 HKD per month. He had worked there since November 2005 for about 1.5 year, up to March 2007.

6.  The defendant had a very close relationship with his father. His father loved and cared about him very much. Not only did he provide for his education, his father on one occasion took out a loan from his friend to pay for the defendant’s university course.

7.  In 2002, the defendant was seriously injured in a traffic accident and he lost consciousness for almost 1 week. During that time, his father took care of him without rest. Unfortunately, his father was found to suffer from cancer in 2005. That had a great impact on the defendant. He felt very sad and since then, the defendant found that he would lose his temper very easily and he was also feeling very uneasy towards other people. The defendant developed the bad habit of spending extravagantly without thinking about the consequences.

8.  The triggering event was that, since the defendant’s father’s health deteriorated, the family’s financial situation also worsened. Family had to pay for medicine for his father. For one single injection it was HKD8,000, and it was 16 injections per phase of treatment. The defendant was working in the company, he needed to go out to contact lots of students, some will pay him direct for the school fees. On that occasion, the defendant took the course fees and paid part of the father’s medicine with some of it while spending the rest for his own extravagant lifestyle.

9.  The defendant took some money from the school fees, repaying some, took some more and then repaid some. It became a cycle. During the period, the defendant kept intending to repay all the money one day to the school. From the facts, you may see that there is an excel file in his computer. The file marked down the outstanding fees that he needed to pay back to the school.

10.  With regard to the summary of facts, paragraph 11, the defendant say that the 4 letters were reference letters prepared by the defendant for the student so that the student can get discount when applying for the course.

11.  After the arrest, the defendant was very remorseful. He was determined to pay all the debts and toe take up the responsibility of his wrong doing. In this regard, the defendant has already repaid HKD293,100. It is his intention to repay all the money to all the victims. The defendant even has a practical plan to continue with the repayments after his release.

Sentencing Guidelines

12.  It is not disputed that this is a case involving an employee stealing when in a position of trust. The sentencing guidelines in the case of HKSAR v Cheung Mee Kiu, CACC 99 of 2006 applies. For theft of ¼ million, a term of imprisonment of between 2-3 years is appropriate.

Sentence

13.  This is a breach of trust case. Cheung Mee Kiu applies. The amount that the defendant had taken under charge 1 was around HKD874,700. This figure is arrived at by deducting the figure under column “ABRS confirmed received amount” from the “Amount of payments” column in the annex of the summary of facts.  Under Cheung Mee Kiu, this would put the case in the band of between 2-3 years’ imprisonment.

14.  The offence of fraud took place over a one year period. The victims are students whose earning ability must still have been low and the money likely borrowed from their families. The defendant might have used some of the money to pay for the medical treatment of his father, but he had also spent them in an ‘extravagant’ manner.

15.  Nothing was submitted on why the case had dragged on until now and I have to suppose therefore that there is nothing to it.

16.  I find that an appropriate starting point is that of 34 month’s imprisonment in relation to charge 1.

17.  I have noted that restitution has been made and it is still in progress, for that, I will reduce the starting point to that of 30 months’ imprisonment and give the defendant the full 1/3 discount, bring the sentence down to that of 20 month’s imprisonment.

18.  In relation to charge 2, I will adopt a starting point of 18 month’s imprisonment, reducing that to 12 months’ imprisonment upon the defendant’s guilty plea. I will order that the sentences in both charges be served concurrently. The stolen receipts must have been to assist the defendant in convincing the students that the defendant was receiving the money on behalf of ABRS.