HKSAR v. CHEUNG PAK TO

DCCC 731/2018

[2019] HKDC 72

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 731 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “Theft”.

Facts of the case

2.  On 1 July 2016, the defendant was employed by Taste Green Limited as the supervisor of “OVO Café” (“the Restaurant”).

3.  Each day, cash received from customers would be put into the safe of the Restaurant.  The defendant was responsible for taking all the cash from the safe and depositing them into Taste Green’s BOC account every Monday.  He would then submit the relevant deposit slips to the head office.

4.  As the head office had not received any deposit slips since 13 November 2017, they contacted the Restaurant manager on 18 December.  The manager immediately called the defendant, who replied that he had made the deposits, but had forgotten to submit the slips to the head office.  Although the defendant also promised to send images of the deposit slips to him via Whatsapp, none was received by the manager.

5.  On 19 December 2017, the defendant did not return to work, and became out of reach since then.  Upon further verifications, the manager found that the Restaurant had received cash of HK$314,369 from its customers between 11 November and 17 December 2017, but no deposit slips in relation to the said amount was ever submitted by the defendant.  Case was therefore reported.

6.  On 13 April 2018, the director of Taste Green, while walking in Wan Chai, saw the defendant, who fled immediately but was intercepted shortly afterwards.  He was then arrested by police officers.

7.  In a subsequent video-recorded interview, the defendant admitted the offence and stated, inter alia, that between 11 November and 17 December 2017, whenever he took cash from the safe of the Restaurant, he would embezzle HK$60,000 to HK$70,000 and would only deposit a few thousand dollars into Taste Green’s BOC account.  In total, he had taken about HK$300,000 during the period, yet he had no idea how much exactly he had misappropriated.  He had already spent some of the money on purchasing things, and lost the remaining while playing mah-jong.  Between 20 October and 24 November 2017, he had deliberately delayed the deposits, believing that such practice would make it harder for Taste Green to discover his wrongdoings.

Mitigation

8.  The defendant, aged 35, is married, and used to live with his mother before his remand.  He had a clear record.

9.  In mitigation, it is submitted that when his wife became unemployed, his mother’s health deteriorated, and his responsibilities and position diminished and taken over by his new superior, the defendant suffered from financial and work stress, and mistakenly turned to gambling to relieve them.  This eventually landed him in serious debt, and ultimately the commission of the present offence.

10.  It is stressed that the defendant has already learnt his lesson, and promises to quit gambling and vows to never commit theft again.  The defendant also promises to make restitution by monthly instalments after serving his sentence.

11.  Lastly, mitigating letters written by the defendant, his wife, his mother, his village representative and social worker were submitted. In summary, the defendant was described to be a caring and responsible person, and they all asked this court for leniency.

Sentence

12.  By stealing cash from the Restaurant, the defendant breached the trust placed upon him by the victim company.

13.  The Court of Appeal in HKSAR v Cheung Mee Kiu[1] and HKSAR v Ng Kwok Wing[2] has laid down clear sentencing guidelines for theft involving such breach of trust.  According to the guidelines, when the value of the stolen property is between HK$250,000 and HK$1,000,000, the range of sentence should be 2 to 3 years.

14.  Taking into account the degree of trust reposed in the defendant as supervisor, the value of the stolen property involved, the fact that the defendant stole cash on more than one occasions, over a period of slightly more than a month, that all the money has been spent or lost by the defendant, and that the defendant has never been in trouble before, I consider the proper starting point to be 24 months’ imprisonment.

15.  The defendant indicated on plea day that he would plead guilty to the charge, and is therefore entitled to a full one-third discount on his sentence.  The sentence is thus reduced to 16 months’ imprisonment.

16.  While restitution can amount to a mitigating factor of real weight, particularly when coupled with a plea of guilty, in this case, the defendant only indicated his willingness to pay restitution, and Mr Davies confirmed that the defendant is not in a position to do so before sentence.  Given the means of the defendant, I am of the opinion that the offer at this stage is merely an empty one, and as such cannot have any significance in mitigation.

17.  There being no other mitigating factors, the defendant is sentenced to 16 months’ imprisonment.