HKSAR v. LAI KWAN YEE

DCCC 707/2021

[2021] HKDC 1504

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 707 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 3 charges of theft of money from a company.

Charge 1: between 10 January 2018 to 15 February 2019
$983,155

Charge 2: from 28 March to 21 June 2018
$114,030;

Charge 3: 19 June 2018
$80,000

Summary of facts

2.  The defendant was an executive assistance of a company providing secretarial services company (VTC).

3.  From 10 January 2018 to 15 February 2019, the defendant signed a total of 19 cheques by imitating the authorized signatures of PW2.

4.  Details of the cheques are as follows:-

No	Date	Amount (HK$)	Payee
1	2018.1.10	59,000	Kingsway Financial Services Group Ltd (“Kingsway”)
2	2018.1.12	59,800
3	2018.2.2	76,800
4		78,500
5	2018.2.8	68,800
6	2018.3.2	57,000
7		58,000
8	2018.3.12	65,400
9	2018.3.28	9,980	Cash
10	2018.4.18	75,600	Kingsway
11	2018.5.8	78,800
12		2,550	Cash
13	2018.5.28	78,655	Kingsway
14	2018.6.3	23,000	Cash
15	2018.6.8	78,500	Cash
16	2018.6.15	80,000	Lam Sin Man (“Lam”)
17	2018.8.2	72,800	Kingsway
18	2019.2.15	78,000
19		76,000

Charge 1 (Cheques number: 1-8, 10-11, 13, 17-19)

5.  Between 10 January 2018 to 15 February 2019, the defendant deposited 14 cheques to Kingsway’s bank account at HSBC.  All the amounts were credited to the defendant’s Kingsway A/C.

6.  The majority of the amount in that account had been transferred out to other accounts or lost in investment.

Charge 2 (Cheques number: 9, 12, 14-15)

7.  

(1)  From 28 March 2018 to 8 June 2018, the defendant signed 3 cheques to obtain cash.

(2)  On 21 June 2018, the defendant deposited cheque no. 15 to her own bank account.

Charge 3: Cheque no 16 ($80,000)

8.  On 19 June 2018, the defendant deposited cheque no. 16 into her friend’s bank account.

Unveiling of the offence

9.  On 10 April 2019, the financial manager of VTC inspected VTC’s balance sheet and discovered certain abnormalities.  Upon further checking, it was discovered that those cheques had been signed without VTC’s authorisation.

10.  On 17 April 2019, PW1 discovered that all personal belongings on the defendant’s working desk had been cleared away.

11.  On 18 April 2019, VTC received an email from the defendant to apologise for forging signatures on company cheques and taking away monies from VTC to cover family expenses because of indebtedness.

Cautioned interview

13.  During a cautioned video-recorded interview, the defendant admitted that:-

(a)  She forged the signature of PW2 on the cheques without any authorisation from PW2.

(b)  She deposited the relevant cheques to Kingsway account to invest in stocks and repay debts.

(c)  In relation to Cheques nos. 9, 12 and 14-15 (Charge 2)

(i)  She obtained cash by issuing cheques for repayment of debt and family expenses.

(ii)  She deposited cheque no. 15 to her BOC A/C for repayment of debt and family expenses.

(d)  In relation to cheque no.16 (Charge 3), she deposited it to the bank account of her friend, Lam’s A/C, to repay a debt owed by the defendant’s husband who had purchased a watch from him.

Criminal record

12.  The defendant has a clear record.

Mitigation

13.  The defendant is 44 years old. She is divorced with one biological child and 2 children from her ex-husband’s previous marriage.

14.  Her ex-husband used to run a successful transport business, but the business collapsed since he had a car accident.  He then worked as a taxi driver and provided minimal financial support to the family.  He indulged in gambling and drinking.  The family constantly received debt collectors’ threats and phone calls.  Her ex-husband still lives under the same roof with the defendant despite the fact that they have formally divorced in 2017.  He used the defendant’s company address as guarantor for obtaining a loan from a financial institution.

15.  The defendant has one elder sister living in the United States and is now taking care of the son of the defendant.  The defendant’s father passed away this summer, while her 75 years old mother suffered from depression and failing eye problem.

16.  The defendant worked in the victim company since 2008.  One of her former colleagues wrote letters to inform this court that the defendant was a diligent and kindhearted person.  While her sisters’ letters all told me the same things regarding the failure of the defendant marriage and the consequence of the gambling/drinking problem of her ex-husband that weighed upon the defendant’s mental health.

17.  The defence also submitted that there has been a delay in this case since 2019.  The defendant has suffered mental anxiety over the last few years. I am told today that she is still attending psychiatric clinics for treatment.

18.  Since the prosecution has provided a list of chronology of events as to investigation, it showed that the defendant was arrested in September 2020 and was brought to court in July 2021.  Today, the defence does not pursue this line of mitigation of delay.

19.  Since she left the victim company in 2019, the defendant found another job in the Shaw Brother Studio as an accountant clerk, but she resigned in July this year as she is expecting to face a period of detention.  During this period of time, the defendant also learns LCC (intermediate), Excel and Word programme to equip herself for the future.

20.  The defence also submitted letters from World Vision showing that the defendant has made regular monthly donation ($250)  to this charity organization since 2013.

21.  Finally, the defence said that there is very little impact on the victim company as its business is still running as usual.

22.  The Defence quoted cases from HKSAR v Cheung Mei Kiu CACC 99/2006 and HKSAR v Ng Kwok Wing CACC 398/2007 as they are the sentencing guideline for this type of offence.

Sentence

23.  The defendant committed very serious offences of which she abused her position as an executive assistance by issuing cheques with imitation of PW2’s signature over a period of 13 months.  Most the amounts were credited to the defendant’s investment account or obtained by cash or through her friend’s A/C.  Most of the amount were subsequently transferred to other accounts or lost in investment.

24.  During police investigation, the defendant said that she spent the money on repayment of debt and family expenses.

25.  In mitigation, I heard from the defence that the reason for the defendant to commit the present offences was due to her irresponsible ex-husband for incurring huge debt by gambling.  The defendant was the one to subject to mental and financial stress.  Now she is the one to face the consequence of stealing money from the victim company to repay her ex-husband ‘s debt.

26.  The defendant was at a breaking point when she lost her father this summer and her mother is now suffering from failing health physically and mentally.

27.  Today I am told that the defendant hasn’t informed her mother of the present proceeding.  She told her that she was going to work in overseas and won’t be home for a long time.  The defence urged this court to sentence the defendant as lenient as possible.

28.  The defendant should have known when this matter was discovered, she should expect a period of detention.

29.  Nonetheless, as stated in the case of R v Barrick [1985] 81 Cr App R 78 at 81 that one must start with the general principle in relation to significant thefts committed in breach of trust that:-

“in general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained in small.”

30.  In the present case, the amount is not small.  Further, repayment of debt cannot be regarded as exceptional circumstances, otherwise, people employed in the defendant capacity will plead exceptional circumstances in committing this type of offence.

31.  The total amount for the 3 charges was HK$1,177,185.  About $1.2 million.

32.  As to the individual charges, the amount in:-

Charge 1 is $983,155;

Charge 2 is $114,030;

Charge 3 is $80,000.

33.  The period of each charge:-

Charge 1: between January 2018 to February 2019 (13 months)

Charge 2: March to June 2018 (3 months)

Charge 3: 19 June 2018

34.  Looking at the dates and the sum involved, it covered a period of 13 months.  A total of $1.2 million.

35.  According to the case of HKSAR v Ng Kwok Wing CACC 398/2007 and Cheung Mee Kiu CACC 99/2006, the starting point for:-

(a)  $250,000 to $1 million is 2 to 3 years;

(b)  $1 million to $3 million should be in a range of 3 to 5 years,

(c)  While less than $250,000 should be less than 2 years.

36.  When I pass sentence on the defendant, I bear in mind all the mitigating factors presented to me by the defence, I have read all the mitigating letters and the bundle submitted by the defence, the period of time and the amount in each charge, I consider that :-

(a)  A starting point of 3 years for charge 1 is appropriate, reduced to 2 years after 1/3 discount.

(b)  As to charge 2 a starting point of 12 months to 8 months after 1/3 discount.

(c)  As to charge 3, a starting point of 9 to 6 months after 1/3 discount.

37.  All sentences to run concurrently, that is 2 years.

38.  I further reduced one-month sentence on a compassionate ground that the defendant has lost her father this summer.  I further reduced one month for the regular donation to charity that arrives at a total sentence of 22 months. 

Order

39.  The defendant is to serve a period of 22 months.