HKSAR v. MAN KOON SUN

DCCC 297/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 297 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Theft".

He was a security guard responsible for refilling cash in Automated Teller Machines ("ATMs"). He stole a total sum of HK$1,688,000 from an ATM located at Yau Tong.

Summary of Facts

Background

2.  Brink's Hong Kong Limited ("Brink's") is a security contractor engaged by The Hongkong and Shanghai Banking Corporation Limited ("HSBC") for the provision of cash refilling service at the ATMs of HSBC.

3.  HSBC stores cash in the safe at Brink's office for refilling purpose.  HSBC staff members would give instructions to the security supervisors of Brink's regarding which ATMs require refilling.  Brink's would then arrange an escorting vehicle with 4 security guards to bring fully filled cash boxes to the relevant ATMs and to collect the existing cash boxes from the ATMs.

4.  Once the escorting vehicle has arrived at a particular ATM location, the car leader would call the HSBC Security Department to inform them that the refilling crew is about to replace the cash boxes in a specific ATM.  The car leader would use a cover key to open the cover lock of the ATM; an alarm key to turn off the alarm system; and an electronic key ("Key 3") plus an 8-digit passcode to unlock the cash slot of the ATM.  Following that, the refilling crew would replace the existing cash boxes with the filled ones.  Once completed, the car leader would lock the ATM and activate the alarm system.  He would then call the HSBC Security Department again to confirm completion of the refilling process.

5.  Since August 2015, the defendant had been employed by Brink's as a security guard.  His duties included refilling the ATMs of HSBC.  The defendant was scheduled to be on duty on the offence date.  He suddenly applied for sick leave and a colleague stood in for him.

The Offence

6.  The ATM in question ("the subject ATM") was installed on the MTR Floor, Domain, Yau Tong.  At the time of the offence, its cover lock and alarm system were functioning properly, but its electronic lock had been out of order for about 6 months.  In other words, Key 3 was not required to open the cash slot, except for a pre-set passcode.  The passcode was given to all staff members of Brink's.

7.  On the offence date, Security guards MOK, WU, CHAN and LAU (PWs 1 to 4) were responsible for refilling the ATMs of HSBC located in the Kowloon East area (including the subject ATM). They were on duty from 7:00 p.m. on 21 January 2016 to 3:00 a.m. the following day.  PW2 was the car leader; whereas PW1, the driver; PWs 3 and 4, crew members.  Between 11:27 p.m. and 11:31 p.m. on 21 January, PWs 1 to 4 refilled the subject ATM according to the prescribed procedures.  A total of HK$1.9 million and RMB 40,000 were placed in the subject ATM.

8.  About midnight in the same evening, the defendant called the HSBC Security Department claiming to be PW2. The phone call was answered by a Mr. HO (PW12).  The defendant told PW12 "Chi-man (PW2's first name) had arrived at Domain".  Knowing that one of the security guards of Brink's has the same first name, PW12 did not feel suspicious.  However, after about 30 minutes, still no one had called the HSBC Security Department to confirm completion of refilling process.

9.  The matter was relayed to Brink's and someone from Brink's called PW2 at 12:42 a.m. on 22 January.  PW2 thus called back the HSBC Security Department explaining that he had in fact called in earlier to report their departure from Domain.  Misbelieving that the refilling crew had inadvertently triggered the alarm of the subject ATM, neither Brink's nor HSBC had asked PW2 to return to Domain to check.

10.  About 9:44 a.m. on 22 January, HSBC notified Brink's that an error was detected at the subject ATM. It was later discovered that 2 out of the 4 cash boxes in the subject ATM were missing (a total sum of HK$1,688,000 was lost).  The 2 missing cash boxes (both empty when found) were later retrieved the flowerbed on Cha Kwo Ling Road, which was about 40 metres away from the subject ATM.

11.  Comparison of the CCTV footage of the subject ATM, Brink's office and the defendant's residence revealed that the defendant could be the culprit.  On 27 January, the Police stopped the defendant outside his home.  A total of 6 packs of HK$500 banknotes (in a total sum of HK$1,118,500) were found in the defendant's home.  A pair of sports shoes (which was seen wearing by the culprit) was also seized from the defendant's home.

12.  Under caution, the defendant admitted that out of greed, he stole cash from the subject ATM because he wanted to marry his mainland girlfriend and run a business with her.  In his video recorded interviews, the defendant explained in details how he planned and committed the offence.  He also admitted that from the cash stolen by him, he had taken about HK$500,000 to Shenzhen.  He then exchanged the same into about      RMB 472,000 and deposited RMB 470,000 into his girlfriend's bank account.  He spent the remaining RMB 2,000 on food and accommodation.

Mitigation & Sentence

13.  The defendant is 31 and has a clear record.  Defence solicitor Mr. CHU informed me that the defendant joined Brink's in August 2015, earning $14,000 per month.  The defendant has a 3-year-old son from his previous marriage.  He needs to pay maintenance for his ex-wife and son in the sum of $5,000 per month.  He also needs to look after his parents.

14.  In mitigation, Mr. CHU submitted that the defendant has a heavy financial burden.  His mainland girlfriend works in a bank and they plan to get married and start their own business running a franchised food store.  Mr. CHU stressed that the defendant cooperated with the Police throughout by making full and frank disclosure. Arrangements have been made with the mainland authorities for the return of the cash from the defendant's girlfriend.  Once returned, almost all the cash stolen by the defendant would have been recovered[1].  Finally, mitigation letters were placed before me; their contents are duly noted.

15.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  As Mr. CHU has rightly accepted, this case is a classic Barrick type of breach of trust situation.  The defendant took advantage of his employment with Brink's.  He abused the trust of his employer and committed a theft against a client with premeditation and planning.  According to HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017, if the amount stolen is between HK$1 million and HK$3 million, the sentence ranges from 3 to 5 years' imprisonment.

16.  The defendant had stolen almost HK$1.7 million.  The almost complete recovery of the stolen cash only goes to mitigation.  I adopt a starting point of 3.5 years' imprisonment.  With the guilty plea, the sentence is reduced to 28 months.  I will grant a further discount of 2 months for the recovery of the stolen cash[2].  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 26 months' imprisonment.