HKSAR v. TAM MEI KIU

DCCC 582/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 582 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant (female) (aged 59) appeared before me this morning and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  The particulars of the offence allege that the defendant, between a date unknown in January 2014 and the 17th day of February 2014, both days inclusive, in Hong Kong, stole:

(1) a total sum of cash of HK1.1 million currency; and

(2) a chose in action, namely debts in the total sum of HK$100,000 currency owed by the Hongkong and Shanghai Banking Corporation Limited to Wong Hung-po and Ng Choi-leun in account numbered 012‑76833‑833, property belonging to the said Ng Choi‑leun.

Facts

3.  According to the Amended Summary of Facts as agreed by the defendant, Madam Ng Choi Leun (PW1), the victim in this case was aged 54 and only received an education up to primary school level.  The defendant and PW1 were close friends and they were also colleagues, working in the same school as janitors.

4.  Between late January 2014 and 17 February 2014, the defendant borrowed a total sum of HK$1.2 million from PW1, out of which HK$1.1 million was given by PW1 to the defendant by cash, while a sum of HK$100,000 was transferred from the victim’s bank account to the defendant.

5.  On each occasion, the defendant gave a pretext that she was in need of money on an urgent basis and she undertook to make repayment to PW1. Considering their close relationship, PW1 finally agreed to lend the money to the defendant.

6.  In order to induce PW1 to believe that she was prepared to make the repayment, the defendant also, in the course of the period, issued a total of four cheques in the total sum of HK$820,000 and deposited them into PW1’s bank account.  However, as it turned out at in the material time the defendant’s account where the cheques were drawn had only a balance of a meagre sum of HK$175 during the period.  Eventually all the cheques were bounced.

7.  After being informed by the bank that the cheques were bounced, PW1 kept urging the defendant to make repayment.  On 1 March 2014, the defendant finally admitted to PW1 that she had deceived her.  She told PW1 that she had no money to make any repayment at all and it was useless to report to the police.

8.  On the next day, on 2 March 2014, the defendant was arrested by police.  Under caution, she admitted that she deceived PW1 for HK$1.2 million.  She revealed that she actually took all the money to Macau for gambling and she knew that she did not have sufficient money in her current account.  She issued those four bounced cheques and deposited them to PW1’s bank account with intent to cheat and induce PW1 only to carry on lending money to her.

Criminal record and background of defendant

9.  The defendant has appeared in court on no less than eight occasions, starting from 1994 to 2010, involving as it were, a total number of 33 convictions, mostly related to offences of dishonesty, namely 14 charges of theft, 7 charges of obtaining property by deception, 2 charges of forgery, and 2 charges of fraud.

10.  In her last conviction, which was dated November 2010, she was dealt with in the District Court, facing a total number of 25 charges.  She was sentenced to a total term of 28 months’ imprisonment.  She was only last discharged from the prison in February 2012, which means that she has committed the present offence only 2 years after her last discharge.

11.  Mr Kevin Ng, the solicitor for the defendant, has told the court that the defendant is a divorcee and she has two adult daughters but she had lost contact with them since the year 2000.  Prior to the arrest she was living alone at a public housing estate.  She only received primary school education and she worked as a school janitor earning $10,300 per month.

Mitigation

12.  In mitigation, Mr Ng acknowledged that the defendant had many previous criminal records especially involving offences of dishonesty.  He told the court that the defendant committed this present offence by reason of her greed.  Mr Ng submitted, however, that the case, albeit a serious one, is not the most serious type of case of this kind.  He reiterated the fact that the defendant had admitted the offence in the first opportunity upon her arrest and she is remorseful and co‑operative with the police.  He said that the length of the offence was less than one month and it is strictly not a case involving a breach of trust situation.

13.  Mr Ng has also referred to me past cases of the Court of Appeal involving breach of trust cases for consideration, and urged the court to consider a starting point of not more than 3 years’ imprisonment.

Sentencing considerations

14.  In sentencing, I took into account the guilty plea of the defendant, the facts of this case, the criminal records and the background of the defendant, the mitigation urged on her behalf by Mr Ng, as well as the authorities of the Court of Appeal.

15.  To start with, I agree with the submission by Mr Ng that this is not, strictly speaking, a breach of trust situation.  Apparently, the defendant had betrayed her friendship with the victim, PW1, to which the defendant should feel ashamed.  However, the defendant clearly was not acting in any professional capacity such as a banker, a lawyer or a broker.

16.  The defendant had clearly abused a close relationship and friendship with the victim, and by issuing the cheques which were bound to be bounced, she was practising deceit and she acted like a conman.

17.  The Court of Appeal has in recent years laid down clear guidelines for sentencing of cases involving breach of trust.  In the case of HKSAR v Cheung Mee Kiu [2008] 1 HKC 113.  It was laid down that for offences involving HK$1 million to HK$3 million, the starting point should be 3 to 5 years.

18.  In the present case, the total amount involved was HK$1.2 million. However, it was not, strictly speaking, a breach of trust case, so in the end I considered a starting point of 2½ years in respect of this amount is appropriate.

19.  However, this is not the end of the matter.  The defendant apparently has an extensive criminal records involving dishonesty which is very similar to the present offence.  As I have said, she has only been sentenced to a total of 28 months’ imprisonment only four years ago in 2010.  This is seemingly an aggravating factor.  According to HKSAR v Chan Piu Chi [1999] 2 HKLRD 830, the Court of Appeal has said that for repeated offenders, it is the duty of the court to consider enhancing or increasing the sentence in order to deter the defendant from repeating the same offence in the future and to protect the public.

20.  Taking into account this aggravating factor, the appropriate starting point should be increased by 6 months to 3 years.  The defendant pleaded guilty, for which she will be given the usual one-third discount. There is no restitution whatsoever.  The impact to the victim is devastating and the money is unlikely to be recovered.

21.  The defendant is sentenced to 2 years’ imprisonment.