HKSAR v. KWAN SIK MAN

DCCC 687/2020

[2021] HKDC 215

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 687 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of theft.  Effectively the charge shows that between 1 December 2019 and 26 January 2020, the defendant stole $586,920 from his employer, Fulum Group Limited. 

The Facts

2.  The facts admitted by the defendant set that out in more detail.  The offence occurred at a branch restaurant of the Fulum Group in Aberdeen Centre.  The defendant was the branch manager of Fulum(Aberdeen). His employment history showed that he had worked for that company since 2006. 

3.  One of the responsibilities as a branch manager was to deposit the daily revenue of Fulum(Aberdeen) into the group’s Hang Seng Bank account.

4.  In November of 2019, the group decided to hold a promotion in respect of Chinese New Year delicacies which involved selling coupons to customers.  The coupons were to be sold through the branch restaurants. 

5.  The defendant as branch manager was required to deposit coupon sale proceeds into the designated bank account of the group every week.  It was noted from the auditing of the company as early as 20 January 2020 that there was a deficit in respect of the amounts deposited by Fulum(Aberdeen). 

6.  The sum in that case was $140,000 that had not been deposited into the account.  The defendant was tasked about this. He initially claimed to have forgotten to deposit the money and would do so as soon as possible. 

7.  There was a further audit on 26 January 2020 which found that the amount deposited again into the account was significantly less than the total value of coupons that had been allocated to the defendant.  At that time the defendant told a person who inquired about it that he had spent the revenue for 19 January coupon sale proceeds other than the monies that had been deposited into the account on gambling and he had lost all the money.  A full accounting was made at that time and it was found the total $586,920 had been taken. 

8.  On 26 January, the defendant had said, when asked, that he had spent all that money on gambling and could not repay it.  When the defendant was arrested he said he had embezzled the money from Fulum for gambling.  There were further interviews in which the defendant maintained the same position. 

9.  The defendant made a full admission when he was tasked about this when interviewed.  The defendant has indicated a plea of guilty at an early stage.  He pleaded guilty today and admitted the facts. 

10.  The defendant is aged 46.  He is a person of clear record.  He has a wife and son.  As I said earlier, he has worked at the Fulum Palace for a long time.

11.  As far as his mitigation is concerned, it sets out various matters in mitigation which give some more detail about his personal circumstances.  The defendant has filed for bankruptcy in 2019.  His mother suffers some various illnesses consistent with her age.  The defendant has needed to provide care to her. 

12.  The mitigation sets out some of the defendant’s history, his long employment at Fulum from 2006 to 2020.  During his time there he received a number of awards.  Prayed in aid of the defendant is his clear record, his immediate confession to the crime, his deep remorse shown and the fact the defendant has been in custody since 3 November 2020 as a result of a decision not to apply for any further bail. 

13.  The defendant has consistently attributed his offending to his gambling habit.  Most of his gambling has been done in Macau and he found himself in considerable debt at the bank and then had gambled with the intention of trying to pay back the money he had already lost.  Obviously this is not a successful strategy.  Then stealing the money from the company in an attempt to make good the money.  Since this offence was committed, he has been unemployed. 

14.  As far as the approach to sentence is concerned, this is a case of theft from employer, which involves a requirement of trust and a breach of his duty to his employer.  Guidelines in respect of these offences or this offence has been in existence in the case of HKSAR v Cheung Mee Kiu in November 2006.  The decision of the Court of Appeal in that case placed this case within the band of $250,000 to $1 million stolen or two to three years’ imprisonment. 

15.  The court also considered the sentence in the space of breach of trust and the appropriate guidelines in the case of HKSAR v Ng Kwok Wing, that was in [2008] 4 HKLRD 1018.  The operative guideline effectively remained unchanged in that case, leaving the sentence the same as in Cheung Mee Kiu, wherein where a theft involves between a quarter of a million and $1 million, the guideline sentence lies between two to three years’ imprisonment. 

16.  The defendant has admitted to the theft of $586,920.  That would place, by a mathematical calculation, the starting point for sentence for the defendant in the middle of that band of between a quarter of a million and $1 million.  The defence asks that the court approach the defendant’s case with some leniency in respect of the position of the starting point to be taken within that band. 

17.  He is a 46-year-old man of a clear record with a good working history.  There is no particular mitigation to be found in the commission of the offence, the offence being committed over a period of time involving money simply taken to fund a gambling habit. 

18.  But having regard to this defendant and the remorse shown in the plea of guilty, I will take a starting point of 27 months’ imprisonment, reduce that to 18 months’ imprisonment for the defendant’s plea of guilty, so the sentence will be one of 18 months’ imprisonment.