COURT: The defendant, on her own plea, has been convicted of 31 counts of theft, 2 counts of obtaining a pecuniary advantage by deception, 2 counts of obtaining property by deception, and 1 count of using an identity card relating to another person.
The defendant pleaded guilty before a Magistrate on 2 September 2024 and was committed to the Court of First Instance for sentence. The defendant had confirmed her plea and admission of the Summary of Facts before me.
The defendant faced 36 offences.
Theft Counts (Counts 1-31)
Counts 1 to 31 were for the offence of theft:
(1) Count 1 involved the defendant’s embezzlement of HK$140,000 from her employer’s bank account via e-banking in December 2019;
(2) Counts 2 to 31 involved the defendant stealing cheques of 17 companies she worked for, and forged the signatures of the account holders or obtained their signatures fraudulently, then altered the cheques, thereby stealing money from 30 bank accounts of her former employer by cashing 110 cheques. This covers a protracted period from June 2020 to May 2021. It involved substantial amount of money, totalling HK$9,006,078.33. Through blatant and repeated acts of dishonesty and deceit over a protracted period, the defendant stole her employers’ money.
(3) Her conduct constituted a serious breach of trust and a gross abuse of her responsibilities towards her employers.
Obtaining a pecuniary advantage by deception (Counts 32 to 33)
Counts 32 and 33 were for the offence of obtaining a pecuniary advantage by deception. The defendant provided false reference letters from companies she has never worked before in her application for two jobs:
(1) Count 32 covered the period of 30 December 2020 and 5 January 2021, the defendant falsely represented that she had worked as an Accounting Officer at Muse Fashion International Limited from 20 August 2012 to 31 December 2020, and dishonestly obtained for herself the opportunity to earn remuneration in the employment of another company.
(2) Count 33 followed a similar pattern, but the offence occurred between 15 April 2021 and 19 April 2021, involving other companies in her false representation and where she obtained employment.
The manager of the two companies confirmed that they would not have hired the defendant if they had known that the information regarding her previous work experience was false.
Obtaining property by deception counts and using an identity card relating to another person (Counts 34 to 36)
Counts 34 to 35 were for the offence of obtaining property by deception. It involves a credit card stolen by the defendant from her colleague to make purchases at two different shops on 31 March 2021:
(1) Count 34, the defendant dishonestly obtained a gold necklace, a gold bracelet and a gold ring from Luk Fook Holdings (International) Limited by falsely representing that she was a genuine holder of one CMB Wing Lung Bank credit card (“the CMB Credit Card”) in the name of Choy Pui Ling (“PW24”) and was authorised and entitled to use the Credit Card to make payment for the said goods. The goods were bought at a value of HK$12,201.
(2) For Count 35, the defendant dishonestly obtained one black Samsung S21U mobile phone and one red iPhone 12 mobile phone from SmarTone Telecommunications Holding Limited, by falsely representing that she was a genuine holder of the CMB Credit Card and was authorised and entitled to use it to make payment for the goods.
Lastly, Count 36 averred that on 27 April 2021, without lawful authority or reasonable excuse, the defendant used a Hong Kong Identity Card which related to another person, that is PW24 (“the ID card”). The defendant used it to book a hotel room.
The Agreed Facts
The agreed facts reveal that the defendant was first arrested on 28 December 2019 for Count 1. She was hired to work in the accounting department at Eastrend Service Limited (“VTC1”). Her manager found out that the defendant had logged into the bank account of the company via internet banking and made two transfers on 23 and 27 December 2019, totalling HK$140,000 to the defendant’s personal account.
Upon arrest and caution, the defendant admitted that she knew the e-banking password of the company account and made the transfers without approval. She was released on police bail, pending further enquiries by the police.
While she was on police bail, she committed the offences in Counts 2 to 36. The total amount involved in all of the theft counts were HK$9,146,078.33. These offences were committed during the defendant’s employment with the victim companies as an accounting clerk or assistant. Following her resignation, staff of these companies realised that cheques of their companies, associated companies or personal accounts of their staff were stolen. The defendant cashed a total of 110 cheques, which were then paid to 16 different accounts, of which 11 belonged to the defendant, together with eight cash withdrawals.
The defendant was arrested in the MK Hotel on 21 May 2021. Upon search of her handbag, the ID card of PW24, a total of HK$185,640 cash, an ATM card of one of the defendant’s accounts, and an envelope containing two keys with the word “Security” engraved on them, and a receipt of Dah Sing Bank were found.
Later, the defendant was taken to the branch of Dah Sing Bank. The two keys could open a safe deposit box containing two gold rings, two gold necklaces, one gold bracelet and a total amount of HK$600,000 cash.
Upon search of Room 1305 of MK Hotel (“the Room”), where the defendant stayed, the police found:
(1) PW24’s credit card;
(2) Bank cards of four of the defendant’s accounts;
(3) Company chop of the company she worked (relating to Count 22);
(4) Employment contract between Trendy Trading (HK) Limited (“Trendy Trading”) and herself and the company’s HSBC cheque book (relating to Count 31);
(5) A total of 30 cheques of three companies where she worked (ie Trendy Trading, Garish Crown Building Materials Limited and Yorkshire Group Limited) were signed, 29 of them had the particulars left blank and one of them had the defendant as the payee and the amount was HK$31,003.11;
(6) Cheque book of Yorkshire Group Limited;
(7) An orange file with a stack of paper which had many signatures on it, and;
(8) Nine mobile phone SIM cards.
In her cautioned statements, the defendant said that the cheques found in her room were stolen from companies and the signatures on them were forged by her. She transferred the money to her accounts and passed it to the bitcoin account of a pilot, Harry, whom she met online. She stole the ID card of her colleague and used it to rent a hotel room, because she was worried that the police would arrest her after she did not report to police bail.
Video-Recorded Interviews
In her five video-recorded interviews (“VRIs”), the defendant said that:
(1) For Counts 28 to 30, she worked at Garish Crown Building Materials for four hours in April 2021 and took the cheques from the company. She also took photos of the cheques signed by the genuine accounts’ signatories, so she could forge their signatures;
(2) She would forge the signatures on the cheques after she went back to the hotel, and transferred the money to her own accounts;
(3) She spent most of the stolen money on buying bitcoin for Harry. She claimed that she met him online a year ago and never met him in person. The defendant did not keep any messages with Harry since he asked her to delete their messages;
(4) Harry said if she passed him enough money, he would be able to get HK$720 million back, the money which was detained by the airport;
(5) The defendant claimed she had given him a few odd million dollars. She said she committed the offence in Count 1 because she was helping Harry. After that, she felt that “what’s done is done” and continued helping him;
(6) A lot of SIM cards were found in her hotel room because she had to change her phone number after she quitted the previous job and she did not want her former employers to be able to find her;
(7) She had used the same method to steal from many companies;
(8) She opened the safe deposit box to store the money she had stolen two months ago. All the money and ornaments stored in the box were stolen properties related to the present case. She spent HK$30,000-odd of the stolen money on the gold ornaments;
(9) HK$160,000 found on her was stolen property, she forgot the source of HK$25,640 cash found in the room;
(10) Some of the documents found in the hotel room were samples she took from the companies which would help her to forge the signatures of the signatories. She practiced signing on the notebook found in the room;
(11) Some of the signed cheques in her room were left there because she thought the signatures forged were not similar to the genuine ones, so she left them in the room.
The defendant now accepts and admits that:
(1) She stole the relevant chose in action in Counts 1 to 31;
(2) In relation to Counts 32 and 33, by deception, she falsely represented her previous work experience and dishonestly obtained for herself a pecuniary advantage, ie, the opportunity to earn remuneration in the employment of two companies;
(3) In relation to Counts 34 and 35, she dishonestly obtained from the staff member of Luk Fook and SmarTone, the goods and the phones, with the intention of permanently depriving them by deception, namely by false representing that she was the genuine holder of the credit card, and she was authorised and entitled to use it to make payment of those items;
(4) For Count 36, she used the ID card related to another person, without lawful authority or reasonable excuse.
The Defendant’s Mitigation
The defendant is 50 years old. She is divorced, her sons are living with her ex-husband. According to her antecedents statement, the defendant was educated up to Form 7. She worked as an account clerk from 1994 to 2021. The defendant was unemployed when she was arrested. She has one previous conviction of theft in 2010, which she was fined HK$2,000.
In mitigation, Mr Lee submitted that the defendant is remorseful and was willing to compensate the victims by the money she earned during detention, and she agreed to forfeit her properties. She also attended a life-planning course organised by the Christian Prison Pastoral Association.
I have read a mitigation letter from the defendant and a pastor from Christian Prison Pastoral Association. The defendant claims that she had gone through a difficult time since her divorce as she lost the custody of her son. At the time she encountered fraudsters online and was led astray. The pastor stated that the defendant has sincerely reflected on her wrongdoings and vowed to start a new life after completing her sentence.
Mr Lee rightly acknowledged that this case involves breach of trust. Given the nature and gravity of the defendant’s offending, her personal circumstances provide no meaningful mitigation. The only strong mitigating factor is the defendant’s timely guilty plea.
Considerations of Sentence
The Theft Counts (1 to 31)
All of the theft offences to which the defendant has pleaded guilty to involve a serious breach of trust. They were acts of fraud which the defendant was able to perpetrate as a result of her position in the companies.
In coming to the appropriate starting point, I have regard to the sentencing bands as laid down by the Court of Appeal in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1018. These cases lay down sentencing guidelines in breach of trust theft cases. In Ng Kwok Wing, the revised guidelines are as follows:
“(a) involving HK$15 million or more: 10 years or
above;
(b) involving HK$3 million to HK$15 million: 5 to 10
years;
(c) involving HK$f1 million to HK$3 million: 3 to 5
years;
(d) involving HK$250,000 to HK$1 million: 2 to 3
years; and
(e) involving HK$250,000 or less: below 2 years.”
Although the maximum penalty for the offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210, is 10 years’ imprisonment, in addressing the guideline tariffs, it would appear that the Court of Appeal was taking into account large sums of funds arising from multiple offences.
I have also considered the principles set out in R v John Barrick (1985) 81 Cr App R 78 at page 82, in relation to sentencing of cases involving a person in a position of trust, using that privileged and trusted position, to steal or defraud others. The court should have regard to the following matters:
(i) The quality and degree of trust reposed in the offender including his rank;
(ii) The period over which the fraud or the thefts have been perpetrated.
(iii) The use to which the money or property dishonestly taken was put;
(iv) The effect upon the victim;
(v) The impact of the offences on the public and public confidence;
(vi) The effect upon fellow-employees or partners;
(vii) The effect on the offender himself;
(viii) His own history;
(ix) Those matters of mitigation special to himself
such as illness, being placed under great strain by excessive responsibility or the like; where, as happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.
In the present case, the breach of trust was egregious for the following reasons:
(1) The defendant has been working for 24 years as an account clerk at the time of the offence. She made use of her knowledge and experience to apply for positions of an accounting clerk or assistant at different companies;
(2) The defendant has clearly abused her position. The trust reposed in the defendant was that of an accounting staff being delegated the task to prepare cheques for the companies she worked for, and was given responsibility over the financial affairs relating to the victim employers or companies. She would not have access to the cheque books or the signatures of these signatory accounts had she not been in that position;
(3) The thefts were perpetrated on 18 victim companies over a protracted period from June 2020 to May 2021;
(4) The multiplicity of offences, consisting of 31 theft offences, 2 offences of obtaining a pecuniary advantage by deception, 2 offences of obtaining property by deception and 1 offence of using an identity card relating to another person;
(5) The total funds stolen were HK$9,146,078;
(6) She kept the funds stolen and claimed to have passed few odd millions to the bitcoin account for Harry whom she met online;
(7) Although some money and items were retrieved from the hotel room during the search by the police, most of the victim companies have been unable to recover the funds stolen;
(8) The defendant continued to embark on a scheme, by the use of false working experience, to go to work in different companies when in fact the purpose was to obtain their cheque books and the signature samples to facilitate her forging of those signatures on the cheques and put herself as payee. The scheme was no doubt pre-mediated and planned, even though not the most sophisticated one;
(9) In her VRIs, the defendant expressed that having committed the offence in Count 1, “what is done is done”, and she said “what’s done is done”, and persisted to commit another 30 theft offences deliberately for a period of one year using the same method. During that time, she targeted 30 bank accounts and had drawn in total 110 cheques; and
(10) The offences in Counts 2 to 36 were perpetrated after the defendant had been arrested by the police in relation to an offence of theft and whilst she was on police bail.
Approach to Sentencing
There is a multiplicity of offences before the court. In sentencing the defendant, I will first pass a sentence for each individual count, and then apply the totality principle to reflect the overall criminality of the present case: see HKSAR v Chan Nai Keung & Ors [2008] 2 HKC 378. That is, this step is especially important since the present case involves a deliberate series of thefts, with deceptive and prolonged conduct, which reflected the defendant’s persistence in offending over a period of about a year from June 2020 to May 2021.
The defendant committed the offences in Counts 2 to 36 while on police bail in connection with the theft case in Count 1. The guile used and dishonesty visited upon the innocent victims were calculated and prolonged. During this time, the defendant was an incorrigible offender, who repeatedly stole monies and thereby incurred losses to the victims involved.
As for the defendant’s previous record, I accept what Mr Lee submitted that there was a considerable period of time between the defendant’s previous conviction for theft (shoplifting) and the current offence, which was some 20-odd years prior to the current offence. For this reason, I will not enhance her sentence for her previous record.
In HKSAR v Leung Ting Fung [2015] 1 HKC 290, the court held that the commission of an offence whilst on bail was a seriously aggravating factor which entitled the judge to enhance his sentencing starting point. I propose to enhance the sentences on Counts 2 to 14, 16, 17, 19, 22, 27 and 29 by 3 months, and Counts 20, 21, 28, 30 to 31 by 1 month. I have not enhanced the remaining counts in light of the length of the sentence to be imposed.
I will now deal with the individual starting points imposed on each offence, which is reduced by one-third for the defendant’s guilty plea. I also set out below the amounts of the funds stolen. The starting points and ultimate sentences in respect of each theft count are set out in the following table:
|
Count |
Victim |
Amount
(HK$) |
Starting Point |
After enhancement |
Sentence (after 1/3 discount) |
|
years (yr) and months (m) |
|
1 |
VTC1 |
140,000.00 |
13 m |
- |
8 m |
|
2 |
VTC2 |
485,000.00 |
2 yr 3 m enhanced by 3 m |
2yr 6 m |
1 yr 8 m |
|
3 |
600,000.00 |
2 yr 5 m enhanced by 3 m |
2 yr 8 m |
1 yr 9 m |
|
4 |
VTC3 |
292,600.16 |
2 yr enhanced by 3 m |
2 yr 3 m |
1 yr 6 m |
|
5 |
VTC4 |
141,212.63 |
13 m enhanced by 3 m |
16 m |
10 m |
|
6 |
VTC5 |
215,043.25 |
1 yr 8 m enhanced by 3 m |
1 yr 11 m |
1 yr 3 m |
|
7 |
724,350.45 |
2 yr 7 m enhanced by 3 m |
2 yr 10 m |
1 yr 10 m |
|
8 |
1,294,675.00 |
3 yr 3 m enhanced by 3 m |
3 yr 6 m |
2 yr 4 m |
|
9 |
VTC6 |
1,260,009.75 |
3 yr 3 m enhanced by 3 m |
3 yr 6 m |
2 yr 4 m |
|
10 |
974,061.66 |
2 yr 11 m enhanced by 3 m |
3 yr 2 m |
2 yr 1 m |
|
11 |
VTC7 |
180,790.00 |
1 yr 5 m enhanced by 3 m |
1 yr 8 m |
1 yr 1 m |
|
12 |
186,268.84 |
1 yr 5 m enhanced by 3 m |
1 yr 8 m |
1 yr 1 m |
|
13 |
185,411.84 |
1 yr 5 m enhanced by 3 m |
1 yr 8 m |
1 yr 1 m |
|
14 |
VTC8 |
406,835.07 |
2 yr 2 m enhanced by 3 m |
2 yr 5 m |
1 yr 7 m |
|
15 |
34,325.40 |
3 m |
- |
2 m |
|
16 |
VTC9 |
603,412.46 |
2 yr 5 m enhanced by 3 m |
2 yr 8 m |
1 yr 9 m |
|
17 |
VTC10 |
187,397.06 |
1 yr 5 m enhanced by 3 m |
1 yr 8 m |
1 yr 1 m |
|
18 |
VTC11 |
12,097.00 |
6 weeks |
- |
4 weeks |
|
19 |
VTC12 |
135,372.07 |
1 yr enhanced by 3 m |
1 yr 3 m |
10 m |
|
20 |
VTC13 |
75,000.00 |
6 m enhanced by 1 m |
7 m |
4 m |
|
21 |
VTC14 |
63,737.84 |
6 m enhanced by 1 m |
7 m |
4 m |
|
22 |
VTC15 |
293,535.09 |
2 yr enhanced by 3 m |
2 yr 3 m |
1 yr 6 m |
|
23 |
11,218.96 |
6 weeks |
- |
4 weeks |
|
24 |
15,872.23 |
6 weeks |
- |
4 weeks |
|
25 |
19,519.44 |
6 weeks |
- |
4 weeks |
|
26 |
4,406.23 |
6 weeks |
- |
4 weeks |
|
27 |
VTC16 |
228,801.90 |
1 yr 9 m enhanced by 3 m |
2 yr |
1 yr 4 m |
|
28 |
VTC17 |
82,048.20 |
7 m enhanced by 1 m |
8 m |
5 m |
|
29 |
150,208.00 |
1 yr 2 m enhanced by 3 m |
1 yr 5 m |
11 m |
|
30 |
58,400.00 |
5 mth enhanced by 1 m |
6 m |
4 m |
|
31 |
VTC18 |
84,467.80 |
8 m enhanced by 1 m |
9 m |
6 m |
|
Total: |
9,146,078.33 |
|
|
|
There are 18 distinct victims in this case. The court in R v Tong Hoi Fung [1988] 1 HKLR 610 held that when there is more than one offence of a similar nature committed at different times, it is right to impose a higher sentence than if there had been only one offence. According to R v Kwok Chi Keung [1993] 2 HKCLR 294, the greater degree of criminality manifested by repeated breaches of the law should be visited by more severe punishment than that inflicted for a single offence.
In HKSAR v Chong Hung Shek [2019] HKCA 451, the Court of Appeal stated at paragraph 50:
“...A global view of culpability is an essential tool when sentencing for multiple offences. It comes into play after the sentencing judge has completed an individualised sentencing process and it is used to guide the judge to an appropriate final sentence in conjunction with the application of the totality principle. The tool by which the final sentence is achieved is the court’s power, in respect of multiple charges, to order that the sentence imposed on one charge be served consecutively or partially consecutively to the sentence imposed on another charge.”
The Court of Appeal has stressed the importance of the totality principle and the need to ensure that the sentence reflected the true overall culpability disclosed by the offences of which the defendant has been convicted. Where a second offence added to the culpability of the first offence, the sentence for the second offence would normally run wholly or partially consecutive to that for the first, depending on the appropriate totality for the conduct as a whole.
In Secretary for Justice v Yu Chun Hing [2022] 1 HKLRD 97, [2021] HKCA 1033, the Court of Appeal stated at paragraph 61 that where a court is confronted with an accused “who has committed multiple offences over a prolonged period, it is best to conduct a sequential evaluation of the offending by reference to the chronological order of the offences, or to any connection between the offences due to the nature of the offence, the involvement of the same victim or the offences arising from the same event.” It is on this basis that I will approach the sentencing of the defendant.
Count 1 (1st Victim)
The 1st victim is Eastrend Services Limited (VTC1). According to the offences, the defendant stole from it the sums of HK$140,000 on 23 and 27 December 2019 (Count 1). The defendant worked there since 1 July 2017. I will sentence the defendant to 8 months’ imprisonment after one-third discount for the defendant’s guilty plea.
Counts 2 and 3 (2nd Victim)
The second group of victims is CAI Edward Yonglian and CAI Group Limited (VTC2). According to the offences, the defendant stole the sums of HK$485,000 from 22 June 2020 to 2 July 2020, and HK$600,000 on 3 August 2020 (Count 3). According to the VRI, the defendant asked her boss to sign on the cheques she prepared and later filled in the amount and put herself as the payee. For the sum of HK$600,000, she said she was instructed by Harry to remit it to LIU’s bank account.
Taking into account the totality principle, Counts 2 and 3 will run concurrently with each other, and 4 months of the sentence to run consecutively with Count 1, thereby resulting in a sentence of 12 months’ imprisonment.
Count 4 (3rd Victim)
The 3rd victim is Regal Prosthesis Limited (VTC3). The defendant stole a sum of HK$292,600.16 between the period of 21 August and 16 November 2020 (Count 4). The defendant said in her VRIs that she would similarly ask the boss to sign the cheques and then put herself as the payee. She resigned after knowing the company reported the case.
Taking into account the totality principle, 4 months of the sentence for Count 4 is to run consecutively with Counts 1 to 3, thereby resulting in a sentence of 16 months’ imprisonment.
Count 5 (4th Victim)
The 4th victim is LUI Edwin Wing-yiu (VTC4). The defendant stole the sum of HK$141,212.63 (Count 5). The defendant said in her VRIs that she used similar method to cash the cheques. She said she operated the bank account of her elder sister (“the sister’s account”) to transfer money to her own account by e-banking in the hope that people would not discover.
Taking into account the totality principle, 3 months of the sentence on Count 5 is to run consecutively with Counts 1 to 4, thereby resulting in a sentence of 19 months’ imprisonment.
Counts 6 to 8 (5th Victim)
The 5th group of victims involves Sinofood Industries Company Limited (VTC5) and Grandiose Investments Limited. The defendant only worked in VTC5 for 10 days since 12 September 2020. The defendant stole the sums of HK$215,043.25 on 13 November 2020 (Count 6), HK$724,350.45 (Count 7) and US$166,839.72 (equivalent to HK$1,294,675) (Count 8) covering the period of 22 September and 10 November 2020.
Taking into account the totality principle, Counts 6, 7 and 8 will run concurrently with each other, and 7 months of the sentence is to run consecutively with Counts 1 to 5, thereby resulting in a sentence of 26 months’ imprisonment.
Counts 9 and 10 (6th Victim)
The 6th victims are CIBM Holding Limited and Bauhinia Building Materials Company Limited (VTC6). The defendant stole the sum of HK$1,260,009.75 between 18 and 27 November 2020 (Count 9), and HK$974,061.66 for the same period (Count 10). The defendant only worked there for two days. The defendant said in her VRIs that she forged the signatures on the cheques, cashed them and deposited the money to her sister’s account and her own bank account. She resigned after taking the company’s cheques.
Taking into account the totality principle, Counts 9 and 10 will run concurrently with each other, and 7 months of the sentence is to run consecutively with Counts 1 to 8, thereby resulting in a sentence of 33 months’ imprisonment.
Counts 11 to 13 (7th Victim)
The 7th victims are Lens World Trading Company Limited, International Technology Holdings (HK) Limited and Tejas Lighting Company Limited (VTC7). The defendant stole the sums of HK$180,790 between 9 and 14 December 2020 (Count 11), HK$186,268.84 for the same period (Count 12) and HK$185,411.84 on 9 December 2020 (Count 13) respectively. She admitted in her VRIs that she took the cheques from the company without approval and deposited the money to the account of a person named Ho Ging-yun, whom she did not know.
Taking into account the totality principle, Counts 11 to 13 will run concurrently with each other, and 4 months of the sentence is to run consecutively with Counts 1 to 10, thereby resulting in a sentence of 37 months’ imprisonment.
Counts 14 and 15 (8th Victim)
The 8th group of victims are Wah Shing International Construction Engineering Limited and Wah Shing Decoration Engineering Limited (VTC8). The defendant stole the sum of HK$406,835.07 between 17 and 30 December 2020 (Count 14), and HK$34,325.40 between 17 and 21 December 2020 (Count 15). The defendant admitted she took the cheques of the company without approval, then forged the signatures and cashed them. Some of the money was deposited to the account (Ho’s A/C 2) provided by Harry.
Taking into account the totality principle, Counts 14 and 15 will run concurrently with each other, and 3 months of the sentence is to run consecutively with Counts 1 to 13, thereby resulting in a sentence of 40 months’ imprisonment.
Count 16 (9th Victim)
The 9th victim is Chitson Construction Engineering Company Limited (VTC9). The defendant stole the sum of HK$603,412.46 between 5 and 6 January 2021 (Count 16). The defendant, in her VRIs said that she cashed cheques as she was incited by Harry to buy bitcoin for him.
Taking into account the totality principle, 4 months of the sentence on Count 16 is to run consecutively with Counts 1 to 15, thereby resulting in a sentence of 44 months’ imprisonment.
Counts 17 and 18 (10th and 11th Victims)
The 10th victim is Sunshine Window Engineering Company Limited (VTC10). The defendant stole the sum of HK$187,397.06 between 22 and 25 January 2021 (Count 17). The 11th victim is Da Zhong Seafood Limited (VTC11). The defendant stole the sum of HK$12,097 on 23 February 2021 (Count 18). The defendant admitted in her VRIs that she forged the signatures and cashed the cheques.
Taking into account the totality principle, Counts 17 and 18 will run concurrently with each other, and 3 months of the sentence is to run consecutively with Counts 1 to 16, thereby resulting in a sentence of 47 months’ imprisonment.
Counts 19 and 20 (12th Victim)
The 12th victim is Just Win Trading Company Limited (VTC12) (Count 19) and the 13th victim is CTR Design and Product Studio Limited (VTC13) (Count 20). The defendant admitted stealing the sums of HK$135,375.07 between 23 and 24 February 2021, and HK$75,000 on 4 March 2021. These sums were deposited to her bank accounts respectively.
Taking into account the totality principle, Counts 19 and 20 will run concurrently with each other, and 3 months of the sentence is to run consecutively with Counts 1 to 18, thereby resulting in a sentence of 50 months’ imprisonment.
Count 21 (14th Victim)
The 14th victim is Chaaya Group HK Limited (VTC14) where the defendant took the sum of HK$63,737.84 on 26 March 2021 (Count 21). The defendant only worked there for a day and said in her VRIs that her account was frozen after VTC14 reported the case since she cashed stolen cheques with that account.
Taking into account the totality principle, 2 months of the sentence is to run consecutively with Counts 1 to 20, thereby resulting in a sentence of 52 months’ imprisonment.
Counts 22 to 26 (15th Victim)
The 15th victims are Yorkshire Group Limited, Universal Top Products Limited, Modern Chinese Medical Centre Limited, Southern Herbs Limited and Yorkshire Biotech Group Limited (VTC15). The defendant stole the sums of HK$293,535.09, HK$11,218.96, HK$15,872.23, HK$19,519.44 and HK$4,406.23 respectively (Counts 22 to 26). The defendant admitted she stole the money from the company. She ordered for the making of the company chop found in her room.
Taking into account the totality principle, Counts 22 to 26 will run concurrently with each other, and 6 months of the sentence is to run consecutively with Counts 1 to 21, thereby resulting in a sentence of 58 months’ imprisonment.
Count 27 (16th Victim)
The 16th victim is Solution Health Care Products & Services Limited (VTC16). The defendant stole the sum of HK$228,801.90 between 19 and 20 April 2021 (Count 27). The defendant admitted she forged the signatures and cashed the cheques.
Taking into account the totality principle, 3 months of the sentence on Count 27 is to run consecutively with Counts 1 to 26, thereby resulting in a sentence of 61 months’ imprisonment.
Counts 28 to 30 (17th Victim)
The 17th victims are Garish Crown Building Materials Limited and Ho Siu-ping (VTC17). The defendant stole the sums of HK$82,048.20, HK$150,208 and HK$58,400 on 6 and 7 May 2021 (Counts 28 to 30).
Taking into account the totality principle, Counts 28 to 30 will run concurrently with each other, and 5 months of the sentence is to run consecutively with Counts 1 to 27, thereby resulting in a sentence of 66 months’ imprisonment.
Count 31 (18th Victim)
The 18th victim is Trendy Trading (HK) Limited (VTC18), where the defendant stole the sum of HK$84,467.80 (Count 31). The defendant said in her VRIs that she used the same method to steal and her only intention was to steal the cheques and money from the company she worked for. She would resign as soon as she got the cheques.
Taking into account the totality principle, 2 months of the sentence on Count 31 is to run consecutively with Counts 1 to 30, thereby resulting in a sentence of 68 months’ imprisonment.
These conduct which found these charges occurred on separate occasions. However, wholly consecutive sentences for these theft counts would produce a total sentence which is excessive for the overall criminality involved in this case.
In taking a global approach in sentencing the defendant, I bear in mind there are 31 theft offences; 2 offences of obtaining a pecuniary advantage by deception; 2 offences involving credit card fraud and 1 offence involving the use of an identity card relating to another person, all occurred while the defendant was on police bail in relation to the investigation of the theft case. That the total sum involved was over HK$9.14 million, of which only some of the monies were recovered by the police seizure of the MK Hotel room, and that the defendant in her position as an accounting staff of the companies she worked for committed the theft offences which constituted a serious breach of trust.
According to the guideline tariffs for the theft counts and taking into account the matters I have mentioned, I would adopt a global starting point for the theft counts (Counts 1 to 31) of 8 years 6 months’ imprisonment. This specifically includes an enhancement of 1 year for the fact that the offences in Counts 2 to 36 all occurred while the defendant was on police bail. I would therefore reduce the starting point by one-third for the defendant’s guilty plea to 68 months’ imprisonment.
Counts 32 and 33 (Obtaining a pecuniary advantage by deception)
Counts 32 and 33 relate to the defendant using false reference letters to gain employment, and thereby obtained a pecuniary advantage. There is no sentencing guideline for this offence. I sentence the defendant to 6 months’ imprisonment for each count. Mr Lee submitted that the two offences were committed in the course of and in furtherance of the theft offences, and asked for the sentences imposed to be served concurrently with those of the theft offences.
The question I have to ask is whether these offences add to the culpability of the defendant in the theft count, or whether the theft count comprehends and reflects the criminality of these two offences. The defendant committed the offences in Counts 32 and 33 to gain employment in Chitson Construction Engineering Company Limited and Solution Health Care Products & Services Limited in order to facilitate her commission of the offences in Counts 16 and 27. Having reviewed the principles of HKSAR v Ngan Yiu Ching [2011] 5 HKLRD 690, and taking into account the totality principle, Counts 32 and 33 will run concurrently with each other, and to run concurrently with the theft counts, thereby resulting in a sentence of 68 months’ imprisonment.
Counts 34 and 35
This case involved the theft of a credit card and the identity card of PW24, a colleague of the defendant when she was working on her last day with Yorkshire Group Limited. She had successfully used the credit card on two occasions to buy a gold necklace, a gold bracelet, a gold ring, at a value of HK$12,201 (for Count 34), and 2 mobile phones at a total value of HK$17,197 (for Count 35).
In HKSAR v Li Chi Yat [2019] HKCA 458, the Court of Appeal at paragraphs 21 to 22, recognised that small-scale credit card offences cannot be subjected to strict guidelines because they can vary significantly in a number of ways. Where a credit card fraud is at the low end of the scale of criminality, it attracts a starting point of 2 years’ imprisonment. In the circumstances of this case, it would appear the defendant was stealing opportunistically a single genuine credit card which she subsequently used on three occasions where the actual loss was HK$29,198 and the potential loss, as represented by the credit card limit was HK$90,000. I am of the view that the appropriate starting point on each of the deception charges should be 2 years’ imprisonment.
I therefore sentence the defendant 2 years’ imprisonment for each of Count 34 and Count 35, reduced to 16 months’ imprisonment after the defendant’s guilty plea.
Taking into account the totality principle, Counts 34 and 35 will run concurrently with each other, and 6 months of the sentence on Counts 34 to 35, to run consecutively with Counts 1 to 33, thereby resulting in a sentence of 74 months’ imprisonment.
Count 36
In relation to using an identity card relating to another person, I have been referred to HKSAR v Li Chang Li [2005] 1 HKLRD 864, where the Court of Appeal considered a sentence upon plea as 15 months’ imprisonment was appropriate (which makes the starting point of 22½ months’ imprisonment), given the overall circumstances of that case, in particular, the applicant had not only kept the identity card without any proper reason, but had also used it to check into a hotel to disguise his real identity.
I have also considered two other appellate decisions, HKSAR v Fan King Lam CACC 220/2010 and HKSAR v Lau Kwok Wo (劉國和) CACC 181/2008, which affirmed that the starting points were equally applicable to offenders who are Hong Kong permanent residents. In the present case, the defendant had used PW24’s identity card to book a hotel room in order to disguise her real identity in circumstances where she had committed various other offences while on police bail.
There are no exceptional mitigating factors in relation to Count 36 in this case. I consider it appropriate to adopt a starting point of 22 months’ imprisonment for this count, and after her guilty plea, I reduce it by one-third to 14 months’ imprisonment (after rounding down).
Taking into account the totality principle, the sentence on Count 36 will run concurrently with Counts 34 and 35, and 6 months will run consecutively to the sentences of Counts 1 to 33, thereby resulting in a sentence of 80 months’ imprisonment.
Totality
It is important for a sentencing court to stand back and make an overall assessment of the sentence to be imposed to ensure it is not unduly or inappropriately crushing or oppressive. Taking into account totality of the sentence, I order:
(1) Theft counts (Counts 1 to 31): 68 months’ imprisonment;
(2) Obtaining a pecuniary advantage by deception (Counts 32 to 33): 6 months' imprisonment each for Count 32 and 33, to run concurrently with each other, and to run concurrently to Counts 1 to 31;
(3) Obtaining property by deception (Counts 34 to 35): 16 months’ imprisonment each for Count 34 and 35, to run concurrently with each other, but 6 months to run consecutively to Counts 1 to 33; and
(4) Using an identity card relating to another person: 14 months’ imprisonment with 6 months to run consecutively to Counts 1 to 35.
Conclusion
The final sentence I would impose on the defendant is one of 6 years and 8 months’ imprisonment in total.