HKSAR v. LO KA MAN

DCCC 537/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 537 OF 2008

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of theft of $1,737,475, contrary to section 9 of the Theft Ordinance, Chapter 134. 

2.  In summary Grand Union Technology Limited, who carried out maintenance work for Hewlett-Packard HK SAR Limited, employed the defendant as a receptionist.  The defendant was responsible for collecting fees from customers who had taken products of Hewlett-Packard to Grand Union for repair.  Between December 2004 and June 2006 instead of passing the fees to another staff to deposit in the bank the defendant stole $1,737,475.

3.  Hewlett-Packard discovered the loss in June 2006 when they asked Grand Union to return the money to them.  The defendant admitted stealing the money and promised to repay in July and August 2006.  When the defendant failed to repay the matter was reported to the police.

4.  In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Chan.  I was told the defendant had twice tried to commit suicide.  I therefore adjourned sentence for a psychologist’s report.  Although the report makes no mention of the attempted suicides the report does provide a detailed history of the defendant and the reason why she committed the offence. 

5.  This was a serious breach of trust committed over a period of about 18 months.  I have considered the principles laid down in R v Clark (1998) 2 Cr. App. R. 137 as applied in HKSAR v CHEUNG Mee-kiu [2006] 4 HKLRD 776.  In CHEUNG Mee-kiu the Court of Appeal said the proper starting point after trial where the amount stolen was between HK$1 million to $3 million is 3 to 4 years imprisonment.

6.  The judgment in CHEUNG Mee-kiu was delivered in November 2006 after the commission of the present offences.  Prior to that judgment the courts largely followed the guidance in Clark but this was somewhat unsatisfactory due to fluctuating exchange rates. Under the new guidelines theft of $1,737,475 would fall towards the middle of the band whereas under the Clark guidelines, taking an exchange rate averaging between 14 and 15, theft of $1,737,475 (£115,000-124,000) would fall towards the beginning of the 3 to 4 year band.  I therefore adopt the Clark guidelines in sentencing the defendant.

7.  In determining the starting point I take into that the defendant at the time of the offence was a person of clear record.  Although it is right to say the defendant having pleaded guilty to a course of dishonest conduct over a period of 18 months cannot be said to be a true first offender (see Secretary for Justice v AU Man-Kei, Alex CAAR 2/2000).  I am satisfied the proper starting point after trial is 3 years imprisonment.    

Delay

8.  The defendant was arrested in July 2006 and only charged in June 2008, almost two years later.  I am told the major reason for the delay was obtaining all the documentation from Hewlett-Packard.  Mr Ma has today submitted to me a chronology of events of the last two years, which shows the delay was partly attributable to the time the file was with the Department of Justice.  The delay is not the fault of the defendant.  However rather than trying to rehabilitate herself during the delay the defendant has committed further crime, whilst on police bail for this offence.  In addition there has been no restitution, the defendant simply being unable to repay (see for example Secretary for Justice v HUI Siu-man [1999] 2 HKLRD 236).  In the circumstances notwithstanding the stress has apparently led to the defendant attempting to commit suicide I am satisfied no additional discount is to be given to the defendant on account of delay.

9.  Giving the defendant full credit for her plea of guilty she is sentenced to 2 years imprisonment.