HKSAR v. YOSHIDA TAKASHI

DCCC 798/2020

[2021] HKDC 444

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 798 OF 2020

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REASONS FOR SENTENCE

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1.  The Defendant pleads guilty to one count of theft, in which he is alleged to have stolen a total of about $5,200,000 from his employer, Brand Off Limited (hereinafter referred to as “the Company”). The Summary of Facts indicates that the Defendant was the accounting manager of the Company, and was in charge of the Company accounts, with the authority to withdraw money from the Company’s bank accounts subject to a ceiling.

2.  He stated under caution that he had lost $600,000 and $200,000 cash of the Company on two occasions when he was about to deposit the cash into the Company’s bank accounts, and had not reported to the police.  He then attempted to get sufficient money to cover the amounts lost, by using $5,187,627.90 which belonged to the Company’s money on gambling, and lost the entirety in the process. 

3.  The Defendant is 51 years old, and married with a son of 12 years old. He was born in Japan, educated up to university level, and had worked in Hong Kong for over 20 years.  He had a clear record, and had been employed by the Company since 2010.  In March 2020 when his employment was terminated due to the present case, his monthly salary was around $40,000.  He was the family’s sole breadwinner.  He had been detained since his arrest on 30 March 2020.

4.  Defence submitted that due to the Company’s money being inadvertently lost on the two occasions mentioned hereinabove, the Defendant was afraid to inform the Company or the police.  He acted out of desperation, by borrowing a total of $500,000 to $600,000 from four finance companies and gambling with the Company’s money, believing that he would be able to get sufficient money to cover the lost cash. 

5.  Defence submitted the mitigation letters of the Defendant and his wife. It is said that the pressure on the family is immense, as the Defendant is remanded, the pursuit of the debt collectors is relentless, and there is a lack of financial support for the wife and child. 

6.  In the case of HKSAR v Ng Kwok Wing (CACC398/2007), the sentencing guidelines for breach of trust cases as stated in HKSAR v Cheung Mee Kiu (CACC99/2006) had been revised.  For cases involving $3 million to $15 million, the guideline states 5 to 10 years’ imprisonment.

7.  These guidelines are, however, not straitjackets and the Court must consider other factors including the quality and degree of trust reposed in the offender, including his rank; the period over which the thefts have taken place, the use to which the money dishonestly appropriated has been put, and the offender’s history (as stated in HKSAR v Lam Wai Hung, (CACC5/2006)).

8.  Of the cases submitted by the Defence, apart from HKSAR v Cai Zhaorong (CACC365/2011) (which involved a sum of approximately HK$6.4 million), they involved significantly lesser amounts than the present case. Although the amount involved is not the only factor to be considered in sentencing, it is certainly one of the factors I have to bear in mind.  Also present in the consideration of the Courts in the authorities submitted, save as to HKSAR v Lam Wai Hung (CACC5/2006), is that there was full or partial restitution before the case was heard. Thus the final sentence in those cases where there was restitution would not be of much assistance to this Court.

9.  In the present case, the Defendant was the Accounting Manager of the Company. Although there were also two other accountants, the Defendant was in charge of the Company accounts, and has a partial managerial role.  He was given the authority to draw money from the Company’s bank accounts subject to a certain limit.  Undoubtedly, the degree of trust placed on him by the Company was considerable. 

10.  The duration in which the crime is committed spanned a period of two years, during which he took huge amounts of the Company’s money, a total of over $5 million, and squandered them on the gambling table in Macau.

11.  It is true that the Defendant had not spent the Company’s money on entertainment and personal purchases.  It was, however, used in the hope that money would be earned from them on the gambling table to cover for the loss of cash belonging to the Company due to the Defendant’s carelessness, the loss of which should rightfully be compensated for out of the Defendant’s own pocket. The way in which the Defendant put the Company funds at risk, even though less culpable than cases where offenders steal money for the purposes of investment, was still an attempt to avoid his own liability to compensate the Company with his own funds, and therefore cannot be placed in the same category as cases where offenders had stolen money to salvage a business.

12.  The Defendant is a man of previous good character, a hardworking man and a reliable husband and father.  To a large extent, this offence was committed due to his desperate attempt to make up for his own mistakes. 

13.  I have considered the Defendant’s guilty plea, his cooperation with the Company and the police, his surrender to the police station, his clear record, his background and all mitigation advanced on his behalf.  I have decided to adopt a starting point of 4 years and 9 months.  It is reduced by one-third due to the Defendant’s guilty plea.  I therefore sentence the Defendant to 3 years and 2 months’ imprisonment.