HKSAR v. CHEUNG CHI YUEN

DCCC 881/2017

[2018] HKDC 1098

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 881 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210.

Facts

2.  At the material times, the defendant was the manager of Hong Kong Scrap Yard Ltd (“the Company”), which was managed by Mr Cheung.

3.  The Company’s main business was the collection of metal waste.  In the course of the business, record would be made of the weight of metal waste provided by different waste sellers.  Payment would be made to these waste sellers depending on the weight and category of metal waste.

4.  For the sake of convenience, Mr Cheung had signed all cheques in advance and the defendant would be responsible for issuing cheques to the metal waste sellers by filling in the amount to be paid.  When the clerk of the Company was not in the office, the defendant would take over the job to record the weight of the vehicle and metal waste.

5.  Suspecting the defendant to have embezzled money of the Company, Mr Cheung installed CCTV in the office, which captured the defendant’s wrongdoing.

6.  Upon review of the cheques, it was found that between January 2014 to June 2015, the Company had issued 417 cheques from its account with Bank of China as particularized in charge 1 and all these cheques were cashed by the defendant. The total amount involved was about HK$3.6 million.  It was further found that between June 2015 and October 2015, the Company had issued 120 cheques from its account with Hang Seng Bank as particularized in charge 2 and all these cheques were cashed by the defendant.  The total amount involved was about HK$1.3 million.  Mr Cheung confirmed the defendant should not have cashed the cheques and obtained the cash himself. 

7.  The defendant was arrested on 12 October 2015.  Cash of HK$410,000 was found in his briefcase, HK$34,620 in his drawer in the Company and cash of about HK$298,000 and RMB37,000 was found in his residence.

8.  In subsequent video-recorded interviews, the defendant admitted making false vouchers of waste collection such that payments could be made in favour of himself.  He issued the cheques in his favour and cashed them for his own use. The cash of HK$410,000 in his briefcase and cash of HK$298,310 and HK$351,000 found in his residence and most of the money in his Bank of China account were stolen property.  Other money seized was his savings over the years.  He had sent about HK$800,000 to HK$900,000 of the stolen property to his girlfriend in the Mainland.  About HK$70,000 in his HKD savings account with the China Construction Bank was his savings, the rest were stolen property.

Mitigation

9.  The defendant is aged 63.  He is married with a daughter.  He has a clear record. He had been working in Hong Kong Scrap Yard Limited since 2007 until he was arrested in 2015.  Since then, he is unemployed.  He is diagnosed to have suffered from Mixed Anxiety Depressive Disorder since his arrest for the offences and his condition is stable.

10.  In mitigation, it was revealed that the defendant and his family did not have any financial difficulties.  He only committed the offence out of greed.  He kept most of the money unused.  He was deeply remorseful.  As the defendant kept most of the money in office, at his home or in his bank account, he was able to compensate the Company in the sum of around HK$4.5 million.  In other words, the Company only suffered a loss of around HK$360,000.  It was submitted that the mode of operation was simple and not much planning was involved.  It was further submitted that given the likely substantial period of imprisonment, the chance of re-offending was non-existent.  In view of the substantial restitution and the defendant’s clear record, the court was urged to adopt a lower starting point and grant him discount for the restitution. 

Sentence

11.  The present case is a very serious case of theft involving breach of trust.  Charge 1 involves around HK$3.6 million while charge 2 involves around HK$1.3 million.  In other words, the total value of property stolen amounts to HK$4.9 million.  The defendant was able to compensate the Company in the sum of around HK$4.5 million.  In the end, the Company suffered a loss of around HK$360,000.

12.  The Court of Appeal has laid down sentencing guidelines in respect of theft involving breach of trust in HKSAR v Cheung Mee Kiu [2006] 4 HLRD 770 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  The range of sentence for an amount between HK$1 million to HK$3 million is 3 to 5 years while the range for an amount between HK$3 million to HK$15 million is 5 to 10 years.

13.  In relation to charge 1, given it involves HK$3.6 million, the appropriate starting point is 5 years.  For charge 2 which involves HK$1.3 million, the appropriate starting point is 3 years.  Given the defendant’s guilty plea, the sentence for charges 1-2 is reduced to 40 months and 24 months respectively.

14.  Regarding the restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249).  As the defendant has substantially compensated the Company for the loss, he is entitled to a discount of 4 months from his sentence for each of the two charges.  In other words, the sentence for charges 1-2 is reduced to 36 months and 20 months respectively.

15.  Apart from the above mitigating factors, I do not see other mitigating factor justifying further reduction of sentence.

16.  Taking into consideration the totality principle, I consider a total sentence of 40 months is sufficient to reflect the total criminality of the defendant’s acts. In the circumstance, I order 4 months of the sentence for charge 2 to run consecutive to the sentence for charge 1, making a total of 40 months’ imprisonment.  I hereby sentence the defendant to 40 months’ imprisonment.