HKSAR v. NG PATRICK HEUNG SHING

DCCC 174/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 174 OF 2014

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Reasons for Sentence

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1.  The defendant, now aged 70, pleaded guilty to 40 charges of theft (Charge 1 to Charge 40). The subject matters of the charges concerned moneys in the defendant’s employer’s bank account. At all material times the defendant was an employee of Ball Asia Pacific Limited (“the Company”). The Company was a wholly owned subsidiary of Ball Corporation, a company based in the United States. In April 1994, Ball Corporation transferred the defendant to Hong Kong to help establishing the Company. The defendant was then the Treasurer and Controller of the Company.

2.  In April 1998, the defendant was also made the Managing Auditor of the Asia Pacific Region. He was one of the two authorised signatories to the bank account of the Company.  For Charge 1 to Charge 40, the defendant had on 40 occasions, between 9 January 1996 and 4 February 1999, stolen monies from the Company totalling HK$7,014,796.50.  The defendant left Hong Kong for the United States on 22 February 1999.  He was arrested by the police upon his extradition back to Hong Kong from Canada on 18 January 2014.

3.  As the Treasurer and Controller of the Company, the defendant was in sole charge of the Accounts Department of the Company.  He was responsible for overseeing all aspects of the Company’s financial matters.  His major responsibilities included reviewing and approving:

(a) the payment of salaries and benefits to resident as well as expatriate staff of the Company in Hong Kong;

(b) the settlement of tax-related payments of the Company’s employees including himself; and

(c) the disbursement of expenses incurred by the Company.

4.  The defendant was laid off by the Company in February 1999 by reason of redundancy.

5.  After the defendant’s departure on 22 February 1999, the Company discovered that certain accounting records pertaining to the issuance of cheques by the Company had gone missing.  An internal audit conducted by the Company revealed irregularities in disbursements approved by the defendant.  It was found, among other things, that he had made payments on behalf of the Company for expenses that were not genuinely incurred. 

6.  A total of 40 illegitimate payments were identified.  Each of those payments corresponds with one of the 40 charges.  Between January 1996 and February 1999, the defendant issued 40 cheques drawn on the bank account of the Company purportedly for the disbursement of employees’ salaries taxes and the Company’s miscellaneous expenses.

7.  According to the Company’s internal procedure, all payments should be made to the recipients directly and the defendant was not authorised to issue the cheques to himself.  However, all 40 cheques in question were either made payable to the defendant and deposited into his personal bank accounts or made out for cash and presented by him. 

8.  The 40 charges may be divided into three categories, namely:

(A) Category 1: Tax-related Payments (Charge 1 to Charge 32)

The Company was responsible for settling salaries tax payments of its employees, including the defendant. Charge 1 to Charge 32 concerned purported tax payments to the Government by the Company for nine employees. The total amount involved is HK$5,879,419.50.

9.  Out of the 32 cheques involved, eight were presented for cash payment by the defendant and 24 were deposited into his personal accounts.  In some cases, the cheques purportedly used to pay taxes for employees of the Company were not supported by legitimate/genuine tax demand notices.  In other cases, the same tax demand notice was used to support the authorisation of more than one purportedly tax-related payments to the Government. 

10.  Details of the transactions under Category 1 are set out in Annex A to the Amended Summary of Facts.

(B) Category 2: Unsettled Payments (Charges 33, 34, 36 and 37)

11.  For the aforesaid four charges, cheques were purportedly issued to settle expenses for the Company, but the relevant service providers had never received payments from the Company. Charge 33 and Charge 34 involved the use of false invoices.  The total amount involved under Category 2 is HK$332,595.

(C) Category 3: Inflated Expenses Vouchers (Charges 35, 38, 39 and 40)

12.  For the four charges in question, the defendant inflated the amounts claimed under the vouchers and issued cheques in excess of the expenses actually incurred.  The total amount involved is HK$802,782.

13.  The defendant had a hitherto clear record. 

14.  I am grateful to Mr Tracy for his written mitigation.  Mr Tracy reckons that given the gravity of the offences, the defendant’s persistence in them and the absence of restitution, the defendant must be sentenced to a substantial term of immediate imprisonment.  Mr Tracy submits, however, that the difficulty in sentencing arises from the sharp dichotomy between the gravity and number of offences on the one hand, and on the other hand, the defendant’s age, his multiple health problems, his short life expectancy and his previous good character in family life, in education and in his employment up to 1995.

15.  Mr Tracy put in the Extradition Papers from the Department of Justice, Canada.  The defendant had been remanded in custody for six or seven days before he completed his bail arrangements on or about 4 June 2012.  He was again remanded in custody on 10 December 2013 and he remained in custody for 38 days until he was extradited to Hong Kong on 17 June 2014.  Mr Tracy told me the extradition hearing, albeit a contested hearing, was a short one, which lasted only half an hour approximately.

16.  Mr Tracy put in 40 medical records of the defendant as proof that the defendant is in poor health.  In the light of the medical records produced, I called for a medical report regarding: (1) the defendant’s suitability to serve an imprisonment sentence in Hong Kong; and (2) the updated medical condition of the defendant.

17.  In short, the reports before me show that the defendant had past history of prostate cancer in 2008 and colon cancer in 2013 which were treated in Canada.  He also suffers from parkinsonism.  He is a Hepatitis B carrier with liver cirrhosis. 

18.  The defendant was diagnosed of extranodal marginal zone lymphoma (MALToma) of lung in 2010.  He was treated with chemotherapy and target therapy from June 2010 to July 2012 in Canada, and the disease was under control. 

19.  After the defendant was extradited to Hong Kong, examination and testing confirmed the diagnosis of recurrent MALToma and a nodule at the right frontal lobe of the brain of uncertain nature.  With all these findings in mind, Dr Alex Leung of Queen Elizabeth Hospital, in his report dated 29 August 2014, opines that the defendant’s general condition was satisfactory at his last follow-up visit on 18 August 2014, and he did not have any symptom from the disease.  A re-staging CT scan was scheduled to be done on 18 September 2014 to assess the current extent of his disease.  Further treatment will be planned when the scan is available.  Dr Alex Leung opines that there is no contraindication for the defendant to serve an imprisonment sentence in Hong Kong from the oncological point of view.

20.  In the medical report prepared by Dr Sze of Lai Chi Kok Reception Centre dated 13 September 2014, Dr Sze reports that the defendant was seen by Dr Lau Chung-ping of Princess Margaret Hospital on 5 September 2014.  Dr Lau opined that: (1) there is no absolute medical contraindication for the defendant to serve normal sentence in custody of correctional institution; and (2) the general condition of the defendant remains satisfactory.

21.  Mr Tracy asked me to call for a further medical report.  He was concerned about the parkinsonism suffered by the defendant.  He told me the fall injury in January 2014 was related to the parkinsonism disease (page 78 of the defence mitigation bundle).  In my judgement, when Dr Sze compiled the medical report dated 13 September 2014, he was obviously aware of the defendant’s parkinsonism. He made reference to a memo prepared by Dr Kwong Ngar-ming dated 5 August 2014 in which the defendant’s history of parkinsonism was noted.  Dr Alex Leung and Dr Ng Wing-shun, both of Queen Elizabeth Hospital, were also aware that the defendant suffered from parkinsonism.  They both referred to it in their medical reports dated 29 August 2014 and 5 September 2014 respectively.

22.  In my judgment, when Dr Alex Leung and Dr Sze Hip-shing opined as they did in their reports there is no medical contraindication for the defendant to serve normal sentence in custody of correctional institution and his general condition remains satisfactory, they were aware of the parkinsonism suffered by the defendant.  In the circumstances, I do not think a further medical report on the defendant’s parkinsonism is necessary.

23.  Mr Tracy also put in three family letters written respectively by the son, daughter and the son-in-law of the defendant. 

24.  As far as authorities are concerned, HKSAR v Cheung Mei Kiu [2008] HKC 113 and HKSAR v Ng Kwok Wing [2008] HKLRD 1017 are among the authorities relied upon by Mr Tracy.  I pointed out to counsel that all the 40 offences in the present case were committed in the 90s and hence they all predated Cheung Mei Kiu and Ng Kwok Wing.  I questioned the applicability of the tariffs of Cheung and Ng to the present case.  Mr Tracy and Mr Lui both agreed that I should consider instead the guidelines in R v Clark (Trevor) [1998] 2 Criminal Appeal Report 137 and R v Barrick [1985] 81 Criminal Appeal Report 78.

25.  I am grateful to Mr Lui for the brief summary which helpfully sets out the charges to which the sentencing guidelines laid down in Barrick and Clark are respectively applicable.  In applying the respective guidelines in Barrick and Clark, I would adopt an exchange rate of HK$12.5, the same exchange rate adopted by the Court of Appeal in Cheung Mei Kiu.

26.  On the materials before me, I am satisfied that each of the offences calls for an immediate term of imprisonment.  The offences committed by the defendant were serious in nature.  The defendant acted in breach of the trust that his employer had placed on him.  He was the Treasurer and Controller of the Company and was highly trusted.  He was charged with the important duty of reviewing and approving the settlement of tax-related payments of the Company’s employees and the disbursements of expenses incurred by the Company, yet he acted in fragrant breach of his duty and he stole monies by various dishonest and illegitimate claims.  The 40 offences spanned over a period of three years during which the defendant persistently stole from his employer.  The Company suffered a total loss of over HK$7 million.

27.  I am aware that the defendant is now of old age and is not of good health.  The latest medical reports before me show, however, that there is no contraindication for the defendant to serve a prison term in Hong Kong and his general condition is satisfactory.  I am sure the defendant would receive proper treatment while serving a sentence in Hong Kong as Dr Alex Leung says in his report dated 29 August 2014, further treatment will be planned when the scan results are available.  I am sure as far as medical treatment is concerned, the defendant has been receiving proper medical care and he will continue to receive proper medical care.

28.  For each of the 40 charges, the defendant is entitled to the customary 1/3 reduction for his clear record and guilty plea.  The previous good character of the defendant means no more than that he has a clear criminal record.  The defendant is not a man of positive good character.  The clear record of the defendant does not entitle him to any reduction over and on top of the 1/3 reduction.

29.  It is trite law that the ill health of an accused will seldom be a basis for reducing the sentence for crimes of gravity: Yip Kai Foon v HKSAR [2000] 3 HKCFAR 31.  In the present case, given the medical condition and the old age of the defendant, I am persuaded that, as an act of mercy, rather than by virtue of any general principle, I can impose a lesser sentence than would otherwise be appropriate.

30.  For the 47 days in custody in Canada, I would exercise my discretion in favour of the defendant when assessing totality.

31.  Charge 1 concerned HK$316,442.52 stolen on or about 14 January 1997.  Applying the guidelines laid down in Barrick, I adopt a starting point of 2 years’ imprisonment.  The defendant is entitled to 1/3 reduction for his clear record and guilty plea, that would bring his sentence down to 16 months’ imprisonment.  Given the health condition of the defendant and his old age, I would allow him a further reduction of 2 months.  For the reasons given, on Charge 1, I sentence the defendant to 14 months’ imprisonment.

32.  Charge 2 concerned HK$96,965 stolen on or about 12 December 1996.  Applying the Barrick’s guidelines, I adopt a starting point of 15 months’ imprisonment.  The defendant is entitled to 1/3 reduction for his clear record and guilty plea, that would bring his sentence down to 10 months’ imprisonment.  I would allow the defendant a further reduction of one month because of his health condition and old age.  For the reasons given, on Charge 2, I sentence the defendant to 9 months’ imprisonment.

33.  Charge 3 concerned HK$176,654 stolen on or about 1 December 1997.  Applying the guidelines laid down in Clark, I adopt a starting point of 18 months’ imprisonment.  The defendant is given 1/3 reduction for his clear record and guilty plea, that would bring his sentence down to 12 months’ imprisonment.  I allow the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 3, I sentence the defendant to 10 months’ imprisonment.

34.  Charge 4 concerned HK$175,437 stolen on or about 23 October 1998.  Applying the guidelines laid down in Clark, I adopt a starting point of 18 months’ imprisonment.  The defendant is entitled to 1/3 reduction for his clear record and guilty plea which would bring his sentence down to 12 months.  I would allow the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 4, I sentence the defendant to 10 months’ imprisonment.

35.  Charge 5 concerned HK$393,930 stolen on or about 14 December 1998.  Applying the guidelines in Clark, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I would give the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 5, I sentence the defendant to 14 months’ imprisonment.

36.  Charge 6 concerned HK$138,298 stolen on or about 5 September 1998.  Applying the guidelines in Clark, I take 15 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I would give the defendant a further reduction of one month because of his health condition and old age.  For the reasons given, on Charge 6, I sentence the defendant to 9 months’ imprisonment.

37.  Charge 7 concerned HK$156,734 stolen on or about 8 September 1998.  Applying the guidelines in Clark, I take 18 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I would allow the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 7, I sentence the defendant to 10 months’ imprisonment.

38.  Charge 8 concerned HK$295,032 stolen on or about 1 December 1998.  Applying the guidelines in Clark, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I would allow the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 8, I sentence the defendant to 14 months’ imprisonment.

39.  Charge 9 concerned HK$309,783 stolen on or about 2 February 1999.  Applying the guidelines in Clark, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I allow the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 9, I sentence the defendant to 14 months’ imprisonment.

40.  Charge 10 concerned HK$130,300 stolen on or about 11 November 1996.  Applying the Barrick’s guidelines, I take 18 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I allow the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 10, I sentence the defendant to 10 months’ imprisonment.

41.  Charge 11 concerned HK$212,830 stolen on or about 7 February 1998.  Applying the guidelines in Clark, I take 18 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I allow the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 11, I sentence the defendant to 10 months’ imprisonment.

42.  Charge 12 concerned HK$187,486 stolen on or about 15 February 1996.  Applying the Barrick’s guidelines, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I allow the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 12, I sentence the defendant to 14 months’ imprisonment.

43.  Charge 13 concerned HK$26,784 stolen on or about 2 May 1996.  Applying the Barrick’s guidelines, I take 6 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 15 days because of his health condition and old age.  For the reasons given, on Charge 13, I sentence the defendant to 3 months and 15 days’ imprisonment.

44.  Charge 14 concerned HK$157,758 stolen on or about 9 December 1996.   Applying the Barrick’s guidelines, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 14, I sentence the defendant to 14 months’ imprisonment.

45.  Charge 15 concerned HK$145,726 stolen on or about 28 October 1997.  Applying the Barrick’s guidelines, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 15, I sentence the defendant to 14 months’ imprisonment.

46.  Charge 16 concerned HK$112,117 stolen on or about 20 December 1997.  Applying the guidelines in Clark, I adopt 15 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of one month because of his health condition and old age.  For the reasons given, on Charge 16, I sentence the defendant to 9 months’ imprisonment.

47.  Charge 17 concerned HK$33,609 stolen on or about 1 April 1998.  Applying the guidelines in Clark, I take 9 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of one month because of his health condition and old age.  For the reasons given, on Charge 17, I sentence the defendant to 5 months’ imprisonment.

48.  Charge 18 concerned HK$187,133 stolen on or about 21 December 1998.  Applying the guidelines in Clark, I take 18 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 18, I sentence the defendant to 10 months’ imprisonment.

49.  Charge 19 concerned HK$187,133 stolen on or about 22 January 1999.  Applying the guidelines in Clark, I take 18 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 19, I sentence the defendant to 10 months’ imprisonment.

50.  Charge 20 concerned HK$163,609 stolen on or about 15 January 1998.  Applying the guidelines in Clark, I adopt 18 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I allow the defendant a further reduction of 2 months for his health condition and old age.  For the reasons given, on Charge 20, I sentence the defendant to 10 months’ imprisonment.

51.  Charge 21 concerned HK$106,056 stolen on or about 8 August 1998.  Applying the guidelines in Clark, I take 15 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of one month because of his health condition and old age.  For the reason given, on Charge 21, I sentence the defendant to 9 months’ imprisonment.

52.  Charge 22 concerned HK$196,476 stolen on or about 20 February 1998.  Applying the guidelines in Clark, I take 18 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 22, I sentence the defendant to 10 months’ imprisonment.

53.  Charge 23 concerned HK$301,764 stolen on or about 2 November 1998.  Applying the guidelines in Clark, I adopt 2 years’ imprisonment as the starting point.  The defendant is entitled to 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 23, I sentence the defendant to 14 months’ imprisonment.

54.  Charge 24 concerned HK$316,852 stolen on or about 1 February 1999.  Applying the guidelines in Clark, I adopt a starting point of 2 years.  I reduce the sentence by 1/3 for the clear record and guilty plea of the defendant.  I give the defendant a further reduction of 2 months for his health condition and old age.  For the reasons given, on Charge 24, I sentence the defendant to 14 months’ imprisonment.

55.  Charge 25 concerned HK$193,214 stolen on or about 9 January 1996.  Applying the Barrick’s guidelines, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months because of his health condition and old age.  For the reasons given, on Charge 25, I sentence the defendant to 14 months’ imprisonment.

56.  Charge 26 concerned HK$186,240 stolen on or about 2 December 1996.  Applying the Barrick’s guidelines, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months on account of his health condition and old age.  For the reasons given, on Charge 26, I sentence the defendant to 14 months’ imprisonment.

57.  Charge 27 concerned HK$110,986 stolen on or about 18 September 1997.  Applying the Barrick’s guidelines, I take 15 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of one month for his health condition and old age.  For the reasons given, on Charge 27, I sentence the defendant to 9 months’ imprisonment.

58.  Charge 28 concerned HK$136,446 stolen on or about 17 November 1997.  Applying the Barrick’s guidelines, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months on account of his health condition and old age.  For the reasons given, on Charge 28, I sentence the defendant to 14 months’ imprisonment.

59.  Charge 29 concerned HK$305,579 stolen on or about 15 October 1998.  Applying the guidelines in Clark, I adopt 2 years’ imprisonment as the starting point.  The defendant is entitled to 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months for his health condition and old age.  For the reasons given, on Charge 29, I sentence the defendant to 14 months’ imprisonment.

60.  Charge 30 concerned HK$99,707 stolen on or about 20 November 1998.  Applying the guidelines in Clark, I adopt a starting point of 15 months’ imprisonment.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of one month for his health condition and old age.  For the reasons given, on Charge 30, I sentence the defendant to 9 months’ imprisonment.

61.  Charge 31 concerned HK$305,579 stolen on or about 19 January 1999.  Applying the guidelines in Clark, I take 2 years’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months for his health condition and old age.  For the reasons given, on Charge 31, I sentence the defendant to 14 months’ imprisonment.

62.  Charge 32 concerned HK$16,760 stolen on or about 12 April 1996.   Applying the Barrick’s guidelines, I take a starting point of 4 months’ imprisonment.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 15 days because of his health condition and old age.  For the reasons given, on Charge 32, I sentence the defendant to 2 months and 5 days’ imprisonment.

63.  Charge 33 concerned HK$32,095 stolen on or about 8 August 1998.  Applying the guidelines in Clark, I take 6 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 20 days for his health condition and old age.  For the reasons given, on Charge 33, I sentence the defendant to 3 months and 10 days’ imprisonment.

64.  Charge 34 concerned HK$185,000 stolen on or about 8 January 1999.  Applying the guidelines in Clark, I take 18 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months for his health condition and old age.  For the reasons given, on Charge 34, I sentence the defendant to 10 months’ imprisonment.

65.  Charge 35 concerned HK$380,000 stolen on or about 4 February 1999.  Applying the guidelines in Clark, I adopt a starting point of 2 years’ imprisonment.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months on account of his health condition and old age.  For the reasons given, on Charge 35, I sentence the defendant to 14 months’ imprisonment.

66.  Charge 36 concerned HK$93,500 stolen on or about 24 June 1997.  Applying the Barrick’s guidelines, I take 15 months as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of one month for his health condition and old age.  For the reasons given, on Charge 36, I sentence the defendant to 9 months’ imprisonment.

67.  Charge 37 concerned HK$22,000 stolen on or about 19 October 1998.  Applying the guidelines in Clark, I take 4 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 15 days for his health condition and old age.  For the reasons given, on Charge 37, I sentence the defendant to 2 months and 5 days’ imprisonment.

68.  Charge 38 concerned HK$200,000 stolen on or about 21 December 1998.  Applying the guidelines in Clark, I adopt a starting point of 18 months’ imprisonment.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of 2 months on account of his health condition and old age.  For the reasons given, on Charge 38, I sentence the defendant to 10 months’ imprisonment.

69.  Charge 39 concerned HK$100,000 stolen on or about 28 December 1998.  Applying the guidelines in Clark, I take 15 months’ imprisonment as the starting point.  The defendant is given 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of one month for his health condition and old age.  For the reasons given, on Charge 39, I sentence the defendant to 9 months’ imprisonment.

70.  Charge 40 concerned HK$122,782 stolen on or about 11 January 1999.  Applying the guidelines in Clark, I adopt a starting point of 15 months’ imprisonment.  The defendant is entitled 1/3 reduction for his clear record and guilty plea.  I give the defendant a further reduction of one month on account of his health condition and old age.  For the reasons given, on Charge 40, I sentence the defendant to 9 months’ imprisonment.

71.  I take into consideration the totality principle.  The defendant had, on 40 occasions over a period of 3 years, stolen a total sum of over HK$7 Million from his employer.  The defendant, the Treasurer and Controller of the Company, acted in breach of the trust that the Company had placed on him.  The monies stolen were put to selfish use, i.e. to sustain his addiction in gambling.

72.  In my judgment, a notional starting point after trial of 5½ years’ imprisonment should adequately reflect the overall criminality of the 40 offences.  The defendant, a person of hitherto clear record, pleaded guilty to all 40 offences.  As said, he is entitled to the customary 1/3 reduction for his clear record and guilty pleas.  His health condition and old age is also a factor which I am prepared to weigh in his favour in the sentencing process.  In my judgment, a total sentence of 36 months on a plea should have served the end of justice but for one matter, i.e. the time that the defendant spent in custody in Canada pending his extradition.  In considering the totality principle, I will bear in mind the 47 days that the defendant was remanded in custody in Canada.  In other words, the desired totality of sentence in the present case is one of 34 months and 13 days’ imprisonment. 

73.  I order that all the offences committed in 1996, 8 in total, ie Charge 2, 10, 12, 13, 14, 25, 26 and 32 (“the 1996 Offences”) shall run concurrently with each other, making a total term of 14 months’ imprisonment.

74.  I order that the offences committed in 1997, 7 in total, ie Charge 1, 3, 15, 16, 27, 28 and 36 (“the 1997 Offences”) shall run concurrently with each other, making a total term of 14 months’ imprisonment.

75.  I order that the offences committed in 1998, 18 in total, ie Charge 4, 5, 6, 7, 8, 11, 17, 18, 20, 21, 22, 23, 29, 30, 33, 37, 38 and 39 (“the 1998 Offences”) shall run concurrently with each other, making a total term of 14 months’ imprisonment.

76.  I order that the offences committed in 1999, 7 in total, ie Charge 9, 19, 24, 31, 34, 35 and 40 (“the 1999 Offences”) shall run concurrently with each other, making a total term of 14 months’ imprisonment.

77.  I order that 7 months of the sentences for the 1997 Offences shall run consecutively to the sentences for the 1996 Offences.  I also order that 7 months of the sentences for the 1998 Offences shall run consecutively to the sentences for the 1996 Offences and the 1997 Offences.  Finally, I order that 6 months and 13 days of the sentences for the 1999 Offences shall run consecutively to the 1996 Offences, the 1997 Offences and the 1998 Offences. 

78.  The total term of imprisonment is 34 months and 13 days for all 40 charges.