HKSAR v. POON SUI KUEN

 DCCC1260/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1260 OF 2010

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to a single offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210. You admitted the Brief Facts and I convicted you.

2.  The facts were as follows. You and your younger sister were employed as accounts clerks by Globair Limited in 2001. Your duties included handling cash and cheques from customers and depositing them into the company account. Frontline staff members handed over the cash and cheques, and you and your sister were to deposit them into the company account that same day. You were also to maintain records of each transaction.

3.  In mid-2003, PW1, the managing director, found the accounts in a mess and that you had failed to submit the monthly records on time. In October 2003, he discovered that some cash received by you had never been deposited into the company account. On 25 October of 2003, you resigned.

4.  In 2004, PW1 found cash of $148,124 missing. You promised to return the money and did so in fact in April 2004. However, it was then discovered that three lots of cash handled by you or your sister between April 2002 and October 2003 were missing:

(1)  $347,315.60 handled by you between 1 April of 2002 and 31 March of 2003;

(2)  $128,418 handled by your sister between 1 April 2002 and 31 March 2003; and

(3)  the third and final amount was $202,079 handled by you between 22 March 2003 and 10 October 2003.

The total missing was therefore $677,812.60.

5.  In a meeting, you admitted to PW1 that you alone were responsible for all missing money. Your sister said that she had handed all the cash to you. PW1 made a report to the police. You were arrested on 16 February 2008. You made the following admissions under caution:

(1)  that you stole money but could not tell the exact amount but it should be between 600,000 and 700,000;

(2)  that you had used the money to repay personal loans; and

(3)  your sister had nothing to do with it, having handed the money to you.

6.  You admitted to eight subsequent convictions on one occasion, both relating to dishonesty. However, I do note that at the time of the commission of these offences, you were in fact a person of clear record, and I shall deal with you on that basis.

7.  On your behalf, Mr Ip entered mitigation. I do record my thanks to him for presenting it in written form. It is much clearer and much easier. Inter alia, he told me that you are aged 46, married with two children of 15 and 12. You were educated to Form 5. You have no special skills apart from what you have gleaned from work. You had in fact been employed by the victim company from March 2001 until your resignation in October 2003. At that time, you were earning $15,000 a month as an accounts clerk.

8.  Quite rightly, Mr Ip pointed out that the convictions, well, shown on your record are subsequent to the commission of these offences. He then referred me to various significant events. He told me that in early 2002 - and I have to say that all these events are supported by documentation - your father was diagnosed with cancer which proved, unfortunately, to be fatal and he died in May 2004. You had to shoulder responsibility for the payment of his medical expenses and funeral expenses. Also in 2002, your husband, unfortunately, suffered from psychiatric problems and for long periods was unable to work. This rendered you the sole breadwinner for the whole family, including your parents.

9.  In 2003, your husband entered into a business venture which ultimately failed, leaving debts which you had to assist him to pay. In late 2009, your daughter, unfortunately, developed anorexia and had to be treated by private doctors and ultimately became hospitalised. It does seem fortunate that is now under control. I am told that, currently, your mother is now suffering from cancer. This is a rather sad catalogue of events, I have to say. The money stolen was to repay debts incurred because of these unfortunate events. They were not based on gambling debts or self-indulgence as is often the case.

10.  Mr Ip on your behalf also submitted that the supervision of the accounts at Globair was less than ideal. In fact, it was very lax indeed. That is supplied by the facts. You had paid back one amount of money that you had stolen of just under 150,000, but you had been unable to raise the 680,000 which was still outstanding. Had you done so, you would not have been prosecuted as I understand it.

11.  There have been tremendous delays in this case. The first delay was that the report was not made until 2007. You were arrested in 2008, but you were not charged till 2010. I am told that there were problems caused by the poor state of the accounts. This made it difficult for the police to apportion how much money had actually been stolen. Whilst I understand and accept that it is a period of over two years, that seems to me to be unduly lengthy though I do not criticise the police because I do not know the full facts.

12.  I note two things, further matters that on arrest, you were entirely co-operative with the police, admitting also as far as you were able all that you had done, and pleaded guilty at the first available opportunity. It is also to your credit that you exonerated your younger sister, taking full and sole responsibility for your actions.

13.  Mr Ip referred me to two authorities. The first is very well-known to this court. That is HKSAR v Cheung Mee Kiu CA No. 99 of 2006. In a nutshell, this provides for a starting point of 2 to 3 years for the theft in a position of trust of sums falling between 250,000 and HK$1 million. The other case to which I was referred is a persuasive authority, being a District Court matter. That is HKSAR v Fung Kit Ching, Bandie DCC1120 of 2009. There were similarities between that case and this case and, ultimately, the defendant was sentenced to some 18 months.

14.  I turn now to the sentence. This is a clear and gross breach of trust involving just under $680,000. In my opinion, there are mitigating circumstances in that, as I have already made the point, the money was not used to repay gambling debts or self-indulgence but to repay debts incurred by family problems, both medical and business. There was also, in my opinion, some delay in bringing the case to court. I note also that you at the time were a person of previous good character. I also note that you have family problems by going to prison. You are especially concerned, as I understand it, for the health of your daughter. Whilst in the report it does seem she is improving, her health does potentially remain fragile.

15.  Whilst it does not excuse what you have done, I do accept that supervision at Globair was less than ideal. Also from the time of your arrest, you were co-operative to the police to the best of your ability and have pleaded guilty at the first available opportunity.

16.  On your behalf, Mr Ip has suggested a starting point of 2 years and 9 months to 3 years. With respect, I take the unusual step of disagreeing to the extent that I am taking a lesser starting point given all the mitigating circumstances. The starting point I take is one of 30 months. That is 2 and a half years. Your plea of guilty entitles you to a one-third discount which I give to you. You will therefore go to prison for a period of 20 months.