HKSAR v. POON WING KI

DCCC 195/2018

[2019] HKDC 610

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 195 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant is convicted of one count of theft, contrary to section 9 of the Theft Ordinance.

2.  The facts of the case simply put are as follows.  The defendant was working as a nurse supervisor at a clinic in Tsuen Wan called The New Town Medical Centre.  Her main responsibilities were managing the clinic’s administrative work and keeping the books and cash income received.  As part of her duties she would go to the clinic each day, keep the cash, count it by herself and then deposit the cash into the clinic’s account with the Bank of China the next working day.

3.  Sometime in early July 2017, an account clerk of the clinic, one Mr Shum, discovered certain discrepancies between the cash deposit table provided by the defendant and what appeared on the Bank of China’s account statement for the clinic for the month of June 2017.  Mr Shum therefore called the defendant up to urge her to deposit the cash timely but the defendant continued to fall behind schedule on her task.

4.  On 28 July 2017, the defendant simply disappeared after attending work for the morning session.  When the director of the clinic, Madam Lau, texted her asking her for the return of the safe key or the key to the safe, the defendant simply replied by saying that she was handling a family illness and could only return at a later date.

5.  Finding the situation suspicious, Madam Lau then instructed the account clerk, Mr Shum, to conduct an audit of the clinic’s financial condition and it was then discovered that a total amount of HK $688,219 cash received from patients had not been deposited into the clinic’s account.  These monies were supposed to have been received from the patients and should have been deposited into the clinic’s bank account between 1 June 2017 and 1 August 2017.  As the clinic was unable to contact the defendant after the discovery of the loss of the monies, the matter was then reported to the police.

6.  On 8 August 2017, Madam Lau texted the defendant telling her the matter was now in the hands of the police.  The defendant’s only reply was “Why?”  In any event, she surrendered to the Tsuen Wan Police Station on 20 October 2017 and was arrested and cautioned.

The defendant’s background

7.  The defendant is now 28 years old.  She came from a broken family, she having been brought up by her grandmother.  The grandmother went missing in 2012 and apparently has not been seen again.  The defendant had completed her secondary education in Hong Kong and had worked as a clerk in a clinic for around 3 years.  On what is before me, it is not clear whether all that time was spent at the victim company, that is The New Town Medical Centre, but we know as a fact that she was working as a nurse supervisor at the clinic from 25 February 2017.

8.  Mr So, who is appearing for the defendant this morning, has placed before me a letter written by the defendant in which she explained the reason for her committing the present offence.  According to what is said in this letter, the defendant was at the material time having a relationship with her then boyfriend, one Mr Cheung.  The defendant was told by Mr Cheung that he wanted to start a transportation business and needed some money as the setup capital.  Wanting desperately to help, the defendant then committed the present offence.  The monies she admitted to have stolen from the clinic, HK $688,219, were all given to Mr Cheung for him to do what he had to about his business. Mr Cheung’s business did not work out and the money is all gone.

9.  The defendant, as I have mentioned earlier, was arrested on 20 October 2017.  Mr Cheung, upon learning about her arrest, decided to part company with the defendant, and what is worse is that when she was waiting for her case to be brought up she discovered that she was pregnant.  She has no relatives or friends whom she could entrust with her baby.  In fact, the defendant is now in the dock with the daughter she gave birth to on 19 February this year.

Sentencing considerations

10.  I have been told by Mr So this morning that he has explained fully to the defendant the sentencing authorities on this earlier.  The defendant would have therefore known full well that courts in Hong Kong do not look favourably to offences of this kind where there is a blatant abuse of trust on their part.  According to the Court of Appeal’s decision in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 as revised subsequently by the Court of Appeal in the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, a sentence in the range of 2 to 3 years should have been adopted as the starting point if the monies stolen were between a quarter and 1 million Hong Kong dollars.  Now, Mr So on the defendant’s behalf sensibly accepted that the court is bound in fact by the guideline and there is no reason to ask for a departure from the guideline as set down by the Court of Appeal.  Notwithstanding the considerable sympathy I personally have for the defendant, I think what Mr So has conceded must be right.

11.  In line with the sentencing authorities, therefore, I adopt a starting point of 3 years’ imprisonment in the present case.  With a full one-third discount, the sentence will be reduced to one of 24 months’ imprisonment.  For the defendant’s clear record, I will give an extra discount of one month and, bearing in mind that she will have to go through imprisonment with the baby sitting along with her, which, as I can see, must be a very difficult situation both for her and her baby, I think it is appropriate for the court to give, on compassionate ground, a further discount of 3 months.

12.  The defendant is accordingly sentenced to a term of 20 months’ imprisonment.