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DCCC 194/2020
[2020] HKDC 718
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 194 OF 2020
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| Present: |
Mr Chan Pak Kong, counsel on fiat, for HKSAR
Mr Jonathan Man of Ho, Tse, Wai & Partners, for the defendant |
REASONS FOR SENTENCE
1. The defendant pleads guilty to three charges of fraud, contrary to section 16A of the Theft Ordinance[1].
2. Full details of the offences are set out in the facts admitted by the defendant today.
3. In summary between June 2010 and June 2015 the defendant was employed as the personal secretary of Mr Johnny Wei, a managing director of the Standard Chartered Bank (“the bank”).
4. The bank allowed employees, including the defendant, to apply for expenses incurred in their official capacity. When making an application the defendant was required to log into the bank’s internal Travel & Expenses system and submit a “Create Expense Report”.
5. The defendant was also required to print an “Expenses Report Supplemental Form” for the endorsement of the managing director, Mr Wei. The managing director was also required to log into the bank’s system to approve the defendant’s application after which the bank would deposit the amount claimed into the defendant’s bank account.
6. In 2015 the bank discovered that the defendant was one of the employees who had made the highest amount of reimbursement claims. Given that the defendant was a personal secretary and should not have incurred much expense Mr Lee Chun Ming, a compliance manager with the bank conducted an investigation, including interviewing the defendant on 7 July 2015.
Charge 1
7. Investigation revealed that between 25 June 2010 and 25 June 2015 the defendant made one hundred and fourteen fraudulent claims for expenses in the total sum of $1,230,382.35. The claims were not approved by the managing director, Mr Wei.
8. After submitting the applications, the defendant without the knowledge of the managing director used the managing director’s password to log onto the system to approve the applications.
Charge 2
9. In August 2012, the Finance Shared Service Centre conducted a random check of the defendant’s claims made in July 2012.
10. On 21 August 2012 the defendant submitted by email a form purporting to be signed by the managing director, Mr Wei, endorsing the claims for $9,283.10.
11. The managing director did not sign the form. The defendant printed a copy of the managing director’s signature from the computer which she then stuck on the form, made a photocopy of the form and submitted the photocopy to the Finance Shared Service Centre.
Charge 3
12. In November 2014, the Finance Shared Service Centre conducted another random check of the defendant’s claims made in September 2014.
13. On 20 November 2014 the defendant submitted by email four forms all purporting to be signed by the managing director, Mr Wei, endorsing the claims for a total of $36,445.
14. The managing director did not sign the forms. The defendant again printed a copy of the managing director’s signature from the computer which she stuck on the forms, made photocopies of the forms and submitted the photocopies to the Finance Shared Service Centre together with receipts of other colleagues.
15. The defendant was arrested on 17 November 2015. In a video recorded interview, the defendant repeated her admissions made to Mr Lee, the compliance manager[2].
Mitigation
16. In passing sentence, I have carefully considered the oral and written submissions of Mr Man, including that the defendant, aged 45, is a single mother who takes care of her daughter aged 9[3].
17. I also take into account the defendant has to take care of her adopted parents, who are both in their seventies and that her adopted father is blind[4].
18. I have read the defendant’s mitigation letter in which she expresses her remorse and asks for leniency.
19. I have read the many mitigation letters written by the defendant’s friends, all of whom speak very highly of the defendant, who is described as a devoted mother and dutiful daughter and ask for leniency on her behalf. Many of the friends are in court today to lend their support to the defendant.
20. I have also read the letter written by the pastor of the Kornhill Alliance Church who details when the defendant became a Christian and asks for leniency on her behalf. The pastor is also in court to lend support to the defendant.
21. I take into account the defendant has no previous convictions. This must however be viewed in context this was not a momentary slip as suggested in the letter of one of the friend’s or momentary greed as stated in the letter from the pastor of the Kornhill Alliance Church but involved one hundred and fourteen fraudulent claims over a period of five years.
Guidelines
22. In passing sentence, I have considered the principles laid down in R v Clark[5] as applied inHKSAR v Cheung Mee Kiu[6] as adjusted in HKSAR v Ng Kwok Wing[7].
23. The guidelines state the proper starting point after trial is between 3-5 years’ imprisonment where the amount stolen was between HK$1-3 million.
24. In determining the sentence the following matters are to be considered: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the theft was perpetrated; (iii) the use to which the money 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; (viii) the offender’s own history and (ix) those matters of mitigation special to the offender such as illness; being placed under great strain or where there has been a long delay[8].
25. Mr Man submits the offences were committed because of financial difficulties, the money stolen being used towards repayment of loans and household expenses and not for personal enrichment[9].
26. Mr Man refers the court to two cases involving a breach of trust. In HKSAR v Yeung Chiu the Court of Appeal held that a starting point of4 years’ imprisonment was appropriate for theft of $1.7 million[10].In DCCC 499/2019 the sentencing judge adopted a starting point of 3 years’ imprisonment for theft of $1,052,267[11].
27. Taking into account the defendant was the personal secretary of the managing director; over a period of five years, without the knowledge of the managing director, the defendant used the managing director’s password to approve one hundred and fourteen fraudulent applications in the total sum of $1,230,382.35; the money was not stolen for personal enrichment; the clear record of the defendant and that there has been no restitution[12], I am satisfied the proper starting point for charge 1 is 3 years and 3 months’ imprisonment.
28. When random checks were made into her claims the defendant used false documents purporting to be signed by the managing director to cover up her fraudulent acts. I am satisfied the proper starting point after trial for charges 2 and 3 is 18 months’ imprisonment.
29. Giving the defendant full credit for her pleas of guilty reduces the sentence on charge 1 to 2 years and 2 months’ imprisonment and the sentences on charges 2 and 3 to 12 months’ imprisonment.
Delay
30. As noted earlier one of the matters to be considered in determining the proper level of sentence is mitigation special to the offender such as where there has been a long delay.
31. All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[13].
32. The defendant was arrested in November 2015 and released on bail. In 2018 the defendant was temporarily released from bail and only rearrested and charged in December 2019, over four years after she was first arrested[14].
33. Mr Chan has submitted to court a timeline of the investigation[15]. The police investigation was completed by May 2017 and the case file sent to the Department of Justice for legal advice. Eighteen months does not appear to be an unreasonable amount of time to investigate a fraud spanning five years and involving one hundred and fourteen fraudulent acts.
34. Another eighteen months passed before legal advice was given, which does seem rather long for what is not a complex fraud. No explanation has been given for the time taken to give initial legal advice.
35. After legal advice was given the police conducted follow up action before again submitting the file to the Department of Justice in April 2019. In July 2019 advice was obtained to charge the defendant leading to the defendant being rearrested and charged in December 2019.
36. Over four years from arrest to charge does seem to be a long time for what is not a very complex case. Arguably therefore the case could reasonably have been brought to court earlier than it was[16].
37. Mr Man submits that the undue delay triggered stress and pressure on the defendant whereby she has been unable to look for steady employment and to realistically plan for her daughter’s study[17].
38. Although no medical evidence has been placed before the court I do accept that the long delay would trigger stress and pressure. Some of the mitigation letters written by the defendant’s friends speak of the strain the defendant has been under during these five years.
39. I do not however accept delay prevents the defendant from working and planning the schooling of her daughter. From the letter written by Ms Yip Yuk Ling, who is the guardian of the daughter, the welfare of the daughter has been looked after including her schooling.
40. By way of illustration Mr Man refers the court to three sentencing cases in the District Court, including one where I was the sentencing judge, in which a discount was given for delay, the range of discount being between 1 month and 6 months [18].
41. Each case of course depends on its own facts and circumstances. In the circumstances of this case by reason of the time taken to bring the case to court the sentence on each charge is reduced by 4 months to 1 year and 10 months for charge 1 and to 8 months for charges 2 and 3.
Family circumstances
42. The daughter was diagnosed with Global Developmental Delay when in kindergarten and encountered Expressive Language Delay and Speech Sound Disorder. The daughter has regularly received speech therapy sessions[19].
43. I have read the progress reports submitted to court which show gradual improvement with the last report for 2018-2019 showing significant progress in overall performance and that review was not needed in the following year[20].
44. Ms So Wai Ling, Church Missionary Co-worker with the Kornhill Alliance Church details in her letter dated 18 August 2020 that she conducted child centred play therapy in 2014 after which the daughter’s condition improved leading to suspension of further therapy.
45. On being told that her mother would be imprisoned the daughter experienced tremendous shock emotionally and mentally. Ms So arranged further therapy and says that the daughter’s condition is more serious than in 2014. Ms So is of the view the longer the time the daughter is separated from her mother, the greater and more irremediable the trauma the daughter will suffer.
46. Mr Man submits that the transition from primary to secondary school is crucial and that the daughter needs extra stimulation input, parental caregiving support and behavioural management to help her develop essential social skills, logical reasoning and language ability[21].
47. I am satisfied that the daughter will be well looked after. As noted earlier in the letter written by Ms Yip Yuk Ling, who is the guardian of the daughter, the welfare of the daughter is being looked after. Ms Yip will take care of the daughter during the imprisonment of the defendant. The daughter has transferred schools within the district where Ms Yip resides and has already been living with Ms Yip for a few weeks.
48. I am nevertheless satisfied the fact that a sentence of imprisonment will deprive the daughter of the parental care of her mother, her only parent, is a factor I can take into account in passing sentence[22]. As an act of mercy I further reduce the sentence on each charge by 4 months to 1 year and 6 months for charge 1 and 4 months for charges 2 and 3.
Totality
49. Charges 2 and 3 were committed to cover up the defendant’s fraudulent acts. Arguably by making false documents to cover up her fraudulent acts adds to the culpability of the defendant for which consecutive sentences would be appropriate, subject to the totality principle.
50. I am however satisfied in all the circumstances that a total sentence of 1 year and 6 months’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[23].
Sentence
51. The defendant is convicted and sentenced to concurrent sentences as follows:
Charge 1 – 1 year and 6 months’ imprisonment;
Charge 2 – 4 months’ imprisonment; and
Charge 3 – 4 months’ imprisonment
The total sentence to be served by the defendant is 1 year and 6 months’ imprisonment.
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(D. J. DUFTON)
District Judge |
[1] Cap 210.
[2] Mr Chan confirmed the defendant admitted the fraud to the compliance manager and to the police.
[3] See §§5 & 6 of the written skeleton submissions for mitigation.
[4] See §3 of the written skeleton submissions for mitigation.
[5] (1998) 2 Cr App R 137.
[6] [2006] 4 HKLRD 776.
[7] [2008] 4 HKLRD 1017. Mr Man also referred the court to these three judgments.
[8] See R v. Barrick (1985) 81 Cr. App. R. 78 and HKSAR v Lee Lai Kit, Kitty [2009] 6 HKC 265.
[9] See §§42 & 43 of the written skeleton submissions for mitigation.
[10] [2010] 3 HKLRD 339.
[11] Except for the headnote the reasons for sentence are in Chinese only. Mr Man confirming that his reliance on this case was only by way of illustration of the guideline of 3-5 years’ imprisonment where the amount stolen was between HK$1-3 million, I did not require an agreed translation to be prepared.
[12] In court Mr Man said that the defendant was unable to make any restitution.
[13] See for example HKSAR v Cheung Suet Ting CACC 226/2009 (also referred to by Mr Man) and HKSAR v Chiu Chi Wing CACC 243/2012.
[14] See §18 of the written skeleton submissions for mitigation.
[15] MFI-5.
[16] See HKSAR v Wong Ka Wah CACC 260/2006.
[17] See §38 of the written skeleton submissions for mitigation.
[18] DCCC 1183/2018; HKSAR v Tsui Cheuk Nga DCCC 43/2019 and DCCC 499/2019. Also see §§34 - 36 of the written skeleton submissions for mitigation.
Except for the headnotes the reasons for sentence in DCCC 1183/2018 and DCCC 499/2019 are in Chinese only. Mr Man confirming that his reliance on these cases was only by way of illustration of the range of discount given for delay, I did not require agreed translations to be prepared.
[19] See §44 of the written skeleton submissions for mitigation.
[20] See §22 of the written skeleton submissions for mitigation.
[21] See §§47 & 48 of the written skeleton submissions for mitigation.
[22] See for example HKSAR v Chan Kin Chung & another [2002] 4 HKC 314.
[23] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 as applied in HKSAR v Pau King Kong [2013] 3 HKLRD 676.
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