HKSAR v. CHAN SIU YING

DCCC 44/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 44 OF 2009

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Reasons for Sentence

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The charges

1.  The Defendant pleads guilty to 3 charges of theft.  The 1^st, 2^nd and 3rdc counts involved US$13,179.97 (or HK$102,803.77, by an exchange rate of US$ : HK$ = 1 : 7.8, same for hereinafter), US$10,230.02 (or HK$79,794.15), and US$5,610.79 (or HK$43,764.16) respectively.  The total sum is US$29,020.78 or HK$226,362.08.  The 3 instances of theft took place on 26 January, 16 February, and 6 April 2000 respectively.   

The facts

2.  The Defendant is the mother of CHAN Ling-kee (“Ling-kee”).  Ling-kee is the sole proprietor of Sun Fat Industrial Company (“Sun Fat 1”).  From 1992 to 1998, the Defendant had owned a business, which had regular business transactions with DS-Max Hong Kong Limited (“DS-Max”).  From 1998 onwards, she began to deal with DS-Max in the name of Sun Fat 1.  She provided Sun Fat 1’s bank account at HSBC to DS-Max for DS-Max’s payment of the price of goods to Sun Fat 1. 

3.  The Defendant is also the mother of CHAN Hau-fai (“Hau-fai”).  Hau-fai formed a partnership with the Defendant and two other people, CHAN Kwok-wah (“CHAN”) and LAU Chi-hung (“LAU”).  The partnership operated another Sun Fat Industrial Company (“Sun Fat 2”).  The Defendant signed a cooperation agreement with Sun Fat 2 for her cooperation in each transaction.  She was responsible for manufacturing handbags in China with raw materials and capital provided by the partnership.  Sun Fat 2 would sell the handbags to DS-Max.  The Defendant was also responsible for receiving payment from DS-Max for depositing into Sun Fat 2’s bank account at Nanyang Commerical Bank. 

4.  There were 4 people who would share in the profit generated by the partnership: CHAN, LAU, Hau-fai, and the Defendant. 

5.  However, unbeknown to Sun Fat 2, the Defendant asked DS-Max to pay Sun Fat 2 instead of Sun Fat 1.  As a result, DS-Max made 3 payments to her purportedly acting for Sun Fat 2.  The Defendant then asked Ling-kee of Sun Fat 1 to pass the money to her.  Ling-kee did as asked.  The respective sums stated in the Particulars of Offences relate to CHAN’s and LAU’s share only.  The reason is that part of the money represented her own share and Hau-fai’s share.  Hau-fai agreed to give his share to her.   

6.  In January 2000, Sun Fat 2 soon discovered the missing payments.  In March 2000, the matter was reported to the police.  In January 2001 the Defendant jumped bail.  In December 2008, she was arrested in Lo Wu Control Point. 

7.  She admitted the offences under caution.  The money was used to save her factory in mainland China.  The factory was in financial difficulty.

The Defendant’s circumstances

8.  The Defendant is 59 years of age.  She has a clear record.  She had been in business for more than 10 years before the present offences and her bankruptcy in 2000.  She was then jobless.  When stowing away in mainland China, she had lived with her parents who subsequently died in 2003 and 2005 respectively.  She came back with a view to reunion with her children here.  Before she did so, she was in for her arrest and had notified the police of her return in advance.  She is unable to make any restitution to CHAN and LAU. 

The principles of sentence

Breach of trust

9.  The present case took place in 2000.  The sentencing guidelines as per HKSAR v Cheung Mee Kiu CACC 99/2006 were laid down in 2006.  We have to go back to R v John Barrick (1985) 7 Cr App R (S) 142, as adjusted by R v Trevor Clark [1998] 2 Cr App R 137, in view of the impact of inflation after Barrick.  Cheung Mee-kiu did not purport to increase the sentence.  Rather it was to convert Barrick and Clark into Hong Kong currency.  The sentencing guidelines in Cheung Mee-kiu are applicable here.  The sentences would be as follows:

(1)  over $12.5 million : 10 years’ imprisonment or more;

(2)  between $3.125 million to $12.5 million : 5 – 9 years;

(3)  between $1.25 million to $3.125 million : 3 – 4 years;

(4)  between $220,000 to $1.25 million : 2 – 3 years;

(5)  less than $220,000 : up to 21 months.

Concurrent or consecutive sentences

10.  In Attorney General v Cheung Pit-yiu CAAR 11/1988, Cons VP said, at para. 6:

This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly be said to have been committed in the course of a single transaction. That can hardly be said of offences …… on occasions which occurred in separate months. We agree therefore with the submission of Mr. Cross, who now appears for the Attorney General, that the concurrent sentences in fact passed below would he wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishment should be imposed.

Totality

11.  Cons VP’s observations in Cheung Pit-yiu (supra) takes us to the principle of totality.  In R v McKechan [2004] EWCA Crim 212, David Clark J said that totality was a “principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending”. 

12.  In HKSAR v Zhen Futing Cr App R 509/2003, the applicant was charged with two offences of possession of firearms without a licence, two of possession of offensive weapons, and one of resisting a police officer in the due execution of his duty.  Stock JA said, at para. 18, that:

Judges must always sentence accurately for each particular offence and having done so, only then address the question of totality.

The sentence I pass

13.  As the Defendant was entrusted with the duty of receiving the sale proceeds on behalf of the partnership, her misappropriations amounted to repeated acts in breach of trust. 

14.  The 1^st Charge involved HK$102,803.77.  I take a starting point of 12 months’ imprisonment.  I give a one-third discount for her plea of guilty and clear record.  There are no other mitigating factors.  The sentence is 8 months.

15.  The 2^nd Charge involved HK$79,794.15.  I take a starting point of 12 months.  I give a one-third discount for her plea of guilty and clear record.  There are no other mitigating factors.  The sentence is 8 months.

16.  The 3^rd Charge involved HK$43,764.16.  I take a starting point of 6 months.  I give a one-third discount for her plea of guilty and clear record.  There are no other mitigating factors.  The sentence is 4 months.

17.  The 3 instances of theft took place on 3 separate occasions, 26 January, 16 February, and 6 April 2000 respectively.  According to Cheung Pit-yiu (supra), there should be fully consecutive sentences.  However, based on totality, I make the following adjustment:

(1)  1^st charge: 8 months;

(2)  2^nd charge: 8 months, 4 months of which concurrent with 1^st charge, the other part consecutive to 1^st charge;

(3)  3^rd charge: 4 months, 2 months of which concurrent with 1^st and 2^nd charges, the other part consecutive to 1^st and 2^nd charges.

The overall length is 14 months’ imprisonment.