HKSAR v. CHUNG WING KI, JESSICA

DCCC 549/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 549 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant is charged with 2 offences of "Fraud" (Charges 1 and 2), 1 offence of "Theft" (Charge 3) and 1 offence of "Attempted theft" (Charge 4).

2.  She pleaded guilty to Charges 1 and 2.  The prosecution applied to leave Charges 3 and 4 in the court file; not to be proceeded against the defendant without the leave of court.  I granted the application.

3.  In Charge 1, the defendant deceived $22,000 on one occasion.  In Charge 2, she deceived about $1.03 million over a period of 10 months.

Summary of Facts

Background

4.  The defendant was employed by Strategic Public Relation Group since 2010.  In April 2010, she was deployed to work as a project manager for the Road Safety Unit ("RSU") of The Hong Kong Police Force.  Her primary duty was to plan, prepare and execute publicity activities for the Road Safety Council ("RSC").

5.  RSU would contract out the management and production of publicity activities to independent contractors through tendering exercises.  After a contractor was awarded a publicity job, the defendant would coordinate with the contractor regarding event management.

6.  When an event was completed, the contractor would send invoices to RSU to request payment.  RSU would verify the invoices against the quoted price and submit the checked invoices to the Transport and Housing Bureau for processing the payment.

Charge 1

7.  Basil Digital Limited ("Basil") had been organizing publicity events for RSC since August 2010.  The defendant was responsible for coordinating with the staff of Basil in this regard.

8.  In March 2011, the defendant phoned Madam LI of Basil claiming that RSC was organizing a publicity event which required cash coupons of Sogo and Lane Crawford as prizes.  LI questioned her why requesting Basil to make the purchase.  The defendant explained that they needed the coupons urgently and that it would take too long to complete the formal purchasing procedures.

9.  Having worked with the defendant on several occasions before, LI believed that the defendant was acting on behalf of RSC.  She therefore agreed and asked the defendant to make the request by email.  On 9 March 2011, the defendant sent an email to LI requesting Basil to buy $22,000 worth of Lane Crawford and Sogo cash coupons.  She also mentioned that Basil would be paid $1,000 as administrative fee and deposit for other works to be performed by Basil.  LI then arranged for the purchase of the cash coupons and delivery of the same to the defendant on the following day.

Charge 2

10.  DT Communications Asia Pacific Limited ("DT") had been organizing publicity events for RSC since 2011.  The defendant was responsible for coordinating with the staff of DT in this regard.

11.  Between 18 November 2011 and 20 September 2012, the defendant falsely represented to the staff of DT that cash coupons of various retail shops were required in the publicity events organized by RSC.   Having worked with the defendant on several occasions before, staff members of DT believed that she was acting on behalf of RSC and accepted her requests.

12.  As a result, DT purchased $1,015,000 worth of cash coupons from Sogo, Broadway and Wellcome.  All the coupons were delivered to the defendant. 

Reselling of cash coupons

13.  Upon receiving the cash coupons, the defendant sold them at a 15% to 20% discount of their face value to a male surnamed LEUNG.  He first came across the defendant through an internet auction website when she offered to sell Broadway cash coupons at a 20% discount.  They continued to trade subsequently.  The defendant told LEUNG that she obtained the coupons from friends at discounted prices.

14.  Between 30 March 2011 and 21 September 2012, the defendant received about $877,850 in total from LEUNG for selling him cash coupons.  Almost all payments made by LEUNG were in cash.

15.  Fund flow analysis revealed that 2 or 3 days after the defendant's receipt of the cash coupons, there were cash deposits in the sums ranging from $1,500 to $50,000 made to her bank account.

Arrest of the defendant

16.  The defendant was arrested by the Police on 5 November 2012.  Under caution, she admitted that the cash coupons were purchased mainly for her own use.  After obtaining the coupons, she sold them to a man named Paul through internet auction.  She spent the proceeds of the coupon sale on her own expenses.

Mitigation & Sentence

17.  The defendant is now 31 and has a clear record.  She resides with her mother and elder brother.

18.  Defence counsel Mr. CHENG informed me that the defendant's father passed away in 1994 when she was only 12.  She was raised by her mother, who is now 58 and works as a cleaner.  The defendant was diagnosed with thyroid problems in 2007.  She receives regular consultation and medication from government hospitals.

19.  Mr. CHENG submitted that the defendant is a hardworking person trying very hard to improve her life. She received an associate degree from CityU in 2004 and then a bachelor's degree in Hotel & Tourism Management from PolyU in 2006.  Unfortunately, she incurred a heavy debt from her student loans.  She entered into an Individual Voluntary Arrangement (IVA) in 2008 to settle her debts.  According to her IVA chart, her student loans accounted for about 58% of her total debt. At the same time, she also had loans from commercial finance companies, which accounted for about 41% of her total debt.  Based on her IVA chart, the defendant's total debt is about $475,000.  On the other hand, the defendant has obtained about $877,850 from reselling cash coupons, a sum which is more than sufficient to cover her debts.

20.  Mr. CHENG has also informed me that before the offences were discovered, the defendant has used her own money to settle RSC's outstanding fees owed to various contractors other than Basil and DT; the total sum paid is $130,000[1]. The reason for doing so is sometimes the events went over budget and the payment procedures are complicated.  In my view, what the defendant did was improper and would defeat the integrity of the tendering process as well as the accounting system.  It neither assists nor damages the defendant's mitigation. I would simply ignore this piece of information for the purpose of sentencing.

21.  I have no doubt that the defendant was an excellent employee.  Between December 2010 and January 2012, she has earned 4 commendation letters from the Police Force praising her performance in organizing various road safety publicity events.

22.  This case is a classic Barrick type of breach of trust situation.  The defendant deceived her work partners to obtain monetary advantages.  I understand that the defendant might have had her own financial problems, but they are not excuses for committing the present offences.  In this case, Basil and DT are the most innocent parties.  DT suffered a substantial monetary loss and the defendant simply does not have the means to compensate it.

23.  According to HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017, if the amount stolen is $1 million to $3 million, the sentence should be 3 to 5 years' imprisonment.

24.  In Charge 2, the defendant deceived a total sum of slightly more than $1 million.  I adopt a starting point of 3 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 years.  In Charge 1, the sum involved is $22,000.  I adopt a starting point of 9 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 6 months.

25.  Since both charges arose from the same origin and took place within the same time frame, I consider it appropriate to order the sentences to run concurrently.  I am aware of the defendant's job performance and health conditions; however, they do not warrant any further discount.  Furthermore, she must take full responsibility for the mismanagement of her own finances.  Hence, the total prison term for both charges is 2 years.