COURT: On 23 May 2022, the defendant pleaded guilty to eight charges of theft and two charges of attempted theft in the Magistrates’ Court and was committed to the Court of First Instance for sentence. He confirmed his pleas of guilty and his agreement to the Summary of Facts.
I granted the defendant bail on 10 January 2023, pending sentence. Bail was extended until the date of sentence, 30 August 2024. The defendant failed to appear in court and a warrant for his arrest was issued.
On 14 January 2025, this defendant was arrested for other similar matter or matters and this warrant was executed. The prosecution have now charged him with failing to surrender to custody on 30 August 2024.
Today, the defendant pleads guilty to that additional charge and agrees the Summary of Facts. He failed to surrender to custody according to his bail terms and has no reasonable excuse for his failure.
The facts of this case
The defendant committed serious breaches of trust whilst employed by five consecutive employers as an accountant between February 2018 and May 2020. As an accountant, the defendant had access to bank accounts, chequebooks, credit cards and petty cash. The defendant would steal from each employer until it was obvious he had been discovered before disappearing; becoming out of reach and contact. Within a short period of time, he would find another job and repeat the cycle of stealing.
Charges 1 to 3 involve a loss to Kowling Company Limited of $1,840,000 and a total of US$367,800 which the defendant stole whilst employed as an accountant between February 2018 and January 2019. There was a subsequent repayment to the victim company of HK$206,000.
Charges 4 to 6 involved a total loss to a charity, Animal Asia Foundation Limited of HK$823,128.22 which the defendant stole whilst employed as an accountant between January and June 2019.
Charge 7 involved a loss to Corpag Group of $394,778 which the defendant stole whilst employed as an accountant between July and August 2019.
Charges 8 to 9 involved a loss to Berlinetta Asia Holdings Limited and Nicholas & Bears Co. Limited of HK$3,002,030.15 and an attempted theft of $94,650, which the defendant stole or attempted to steal whilst employed as an accountant between August 2019 and April 2020.
Charge 10 is a charge of attempted theft. The defendant attempted to steal $376,910 whilst working as an accountant for OPS Design Consultant Limited in the month of May 2020. By then he had been arrested for theft and released on bail. This offence involved the defendant stealing four company cheques and trying to cash them for that amount, $376,910. He stole them and gave them to his girlfriend to take to a bank to cash immediately. Both were arrested when it became clear that the cheques were stolen and the police were called.
Those past victim employers had reported the defendant to the police and he was a wanted man. He was eventually arrested on 17 April 2020, detained for 10 days and released on court bail on 27 April 2020. Charge 10 was committed by the defendant whilst on court bail on 19 May 2020. He was rearrested.
The total amount stolen or almost stolen by the defendant from those five employers totalled an equivalent of HK$9,400,337.37. He did deposit about $1.4 million of those proceeds of his crimes into his then girlfriend’s, now wife’s, two bank accounts.
In HCCC 62/2022, she was charged with two counts of money laundering and was found guilty of one such count after trial by a jury. She was also jointly charged with the defendant in Charge 10 and was found guilty after trial by a jury.
Mitigation
The defendant is now 37 years old, a university graduate and married his co-accused in February 2023. And he and his now wife began dating in 2017. Their first daughter was born on 29 May 2019. Their youngest daughter was born on 17 September 2020. He has also adopted his wife’s child from another man.
I will say here from the evidence I saw and heard during his wife’s trial, I have no doubt the man is a loving father. Sadly, greed reared its ugly head and has obviously consumed the defendant.
This can also be seen from his criminal record. The defendant is not a man with a clear record. He has seven previous convictions, all related to dishonesty.
In June 2016, he was convicted of two charges of using a false document and sentenced to 2 months’ imprisonment. On 14 October 2016, he was convicted of two charges of theft and sentenced to a total of 6 months’ imprisonment. Six days later, he was convicted of two further charges of theft and sentenced to a total of 5 months’ imprisonment and ordered to pay compensation of $47,349.20.
His last conviction is dated 22 January 2021. He was convicted of one charge of evasion of liability by deception. He was sentenced to 9 months’ imprisonment and ordered to pay compensation of $100,000. Without a doubt, the defendant is a repeat offender; a recidivist.
Mr Marray, for the defendant, does not seek to deny this blatant fact. Multiple prison sentences, do not appear to have deterred the defendant at all.
Mr Marray has said all he can say in mitigation. The defendant’s best mitigation is his plea at the earliest opportunity to all charges.
By way of explanation, the defendant says he stole money to pay for his own mother’s gambling debts. Apparently, she had a gambling habit since he was a young boy and owed debtors a large amount of money. It appears from the evidence in his wife’s trial that this may not have been true.
He clearly stole to give his own family a more luxurious lifestyle. I saw that for myself during the trial of his wife. When they met, they lived together in a public housing estate. And some two years later, when arrested, he was renting a house in the New Territories for $50,000 a month, had employed two domestic helpers, a driver, and owned a Mercedes-Benz on hire purchase.
He also had the idea he could invest stolen money to repay money he stole from his employers. These explanations are in no way put forward to justify the defendant committing these serious offences.
The sentence of the defendant was originally set down for 20 September 2023. It was subsequently re-fixed to the first day of the trial of his wife, 16 August 2024. The adjournment had nothing to do with either the defence or the prosecution.
I have today received a letter from the defendant, his domestic helper, who continues to live with the two children, as well as the defendant’s wife’s mother. This whole episode has had a huge and detrimental effect on those children, losing both parents from the family home. I have also had a letter from social worker services, attached to the Catholic Church. An update has been given about the two younger children.
Their mother was convicted after trial and sentenced to a term of imprisonment in August 2024. Their father, this defendant, absconded and failed to face pending sentence. It appears from the letters that he did not go far, remained committed to the children, despite having absconded. These letters highlight the impact on the children now that the defendant has been incarcerated since January this year. They are clearly the ones who are suffering the most. Sadly, all at the hands of their parents, in particular, this defendant.
Sentencing Principles
I will first deal with the additional charge laid recently and to which the defendant pleaded guilty today. The maximum sentence for failing to surrender to court is 12 months’ imprisonment. This offence is wholly distinct and separate from all the other offences of dishonesty here.
The failure to surrender to custody does bring the administration of justice into disrepute, especially when I granted bail to this defendant on humanitarian grounds.
The authorities support the principle that a sentence for this additional offence should run consecutively to sentences for the substantive offences. Nevertheless, any sentence court must consider totality principle.
I have taken into account he absconded for a period of over four months before the police were able to execute the warrant of arrest, and that appears only because he was caught committing a similar offence of dishonesty.
I find a starting point of 9 months’ imprisonment appropriate to reflect the seriousness of this additional offence. The defendant will receive a discount of 3 months for his plea today.
I have considered the sentencing tariffs for the offence of theft and those involving a breach of trust, as laid down in HKSAR v Cheung Mee Kiu, and later revised by HKSAR v Ng Kok Wing.
The relevant tariff for this case, where this type of case where the loss involves between HK$3 million to HK$15 million is a starting point of between 5 to 10 years’ imprisonment.
The amount stolen is not the only factor to consider, although it is an important component. Some of the other factors relevant to this case include the degree of trust imposed in the defendant. He was in charge of financial affairs and had access to bank accounts, chequebooks and petty cash.
The period over which the thefts occurred is relevant, and that was over a period of two years and two months, involving five consecutive employers. Here, that is an aggravating factor that there was a total of five victims who trusted the defendant. How the money was spent by the defendant should be considered.
The impact and effect on each victim is another factor, but I have no information here except that the second victim, which was a charity, was insured for such loss. Lastly, it is relevant whether there is any mitigation specific or peculiar to the defendant. I have heard everything said on his behalf and taken it on board.
I have taken everything Mr Marray has said into account. However, having heard the evidence in the trial of the defendant’s wife, he clearly spent stolen money on overseas trips, lavish dinners, expensive presents for his growing family and private housing.
He has said that he was hoping to invest stolen money to better his own financial situation and return the stolen money to each victim, but that grandiose idea clearly failed miserably if he did try.
Undoubtedly, the defendant committed serious breaches of trust, spanning a significant period of time, and became greedier and bolder the more money he stole and misappropriated.
Global Approach - Charges 1 to 10 and 11
Here, there are multiple offences, and after having determined a global approach, I will then address the individual approach and the resultant sentence of each of the charges.
In taking a global approach in sentencing the defendant, it is necessary to bear in mind that there are 10 charges, involving the equivalent of HK$9.4 million, five consecutive victim companies, and an offence period of two years and two months. Moreover, the last charge was committed whilst the defendant was on court bail.
According to the guideline tariff on the amount involved, I will adopt a starting point of 7 years’ imprisonment. However, taking into account the matters I have mentioned above, as well as the fact I consider the defendant a persistent offender and recidivist, I intend to enhance that starting point.
I enhance it by 9 months for his previous convictions and persistent offending. I enhance it by a further 9 months to reflect the number of victims and the two year and two-month timeframe of offending. Lastly, I enhance it by another 6 months to reflect the fact that the fifth and last victim, the victim of Charge 10, hired the defendant two weeks after he was granted court bail, only for him to try and steal over $370,000 from them eight days later. This last charge was committed whilst on court bail.
Those enhancements mean I would adopt a global starting point of 9 years’ imprisonment. In arriving at that starting point, of course, I have also had regard to the totality principle and ensured it reflects the overall criminality of the present case.
That starting point will be reduced by one-third for the defendant’s guilty plea, reduced to 6 years’ imprisonment.
Individual Approach
The following sets out the starting point imposed on each offence, which I will reduce by one-third for the defendant’s guilty pleas.
The First Victim
Charge 1, 5 years and 9 months reduced to 3 years and 10 months.
Charge 2, 5 years and 9 months reduced to 3 years and 10 months, to run concurrently to Charge 1.
Charge 3, 5 years and 9 months reduced to 3 years and 10 months to run concurrently to Charge 1.
The Second Victim
Charge 4, 3 years reduced to 2 years, of which 6 months will run consecutively to Charge 1, the balance concurrently. Charge 5, 3 years, reduced to 2 years to run concurrently to Charge 1.
Charge 6, 3 years, reduced to 2 years to run concurrently to Charge 1.
The Third Victim
Charge 7, 2 years and 6 months, reduced to 1 year and 8 months, of which 6 months will run consecutively to Charge 1, the balance concurrently.
The Fourth Victim
Charge 8, 5 years, reduced to 3 years and 4 months, of which 6 months will run consecutively to Charge 1, the balance concurrently.
Charge 9, 5 years, reduced to 3 years and 4 months to run concurrently to Charge 1.
The Fifth Victim
Charge 10, 2 years and 6 months, reduced to 1 year and 8 months, of which 8 months will run consecutively to Charge 1, the balance concurrently.
Accordingly, with 6 months of the sentences imposed on Charges 4, 7, 8, to run consecutively to the 3 years and 10 months of Charge 1, and 8 months of Charge 10, to run consecutively to Charge 1, the defendant is sentenced to a total of 6 years’ imprisonment.
Failure to surrender - the additional charge
I impose a 6 month term of imprisonment to run consecutively to the other 10 sentences. That is consecutively to the 6 year term of imprisonment imposed for Charges 1 to 10.
Therefore, the defendant will serve a total of 6 years and 6 months’ imprisonment.