HKSAR v. LAU WING FAI

DCCC 942/2018

[2019] HKDC 286

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 942 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of theft.

Summary of facts

2.  The defendant joined the Police force in 1997 and was promoted to the rank of Inspector in 2013.  He assumed the post of Assistant Divisional Commander (Administration) of Ta Kwu Ling Division in October 2017.

3.  As Divisional Commander, the defendant was put in charge of the safe in the office located at room G3 of Ta Kwu Ling Police Station.  Exhibits seized from operations with cash equivalent of HKD1,000 or more, as well as property valued at HKD5,000 or more are kept in the safe.

4.  On 14 October 2017, RMB7,500 and HKD$31,290 (“Property 1”) was seized in a Police operation.  The money was put separately into 5 Tamper Evident Property Envelopes (“TEPEs”) and eventually handed over to the defendant for keeping in the safe.

5.  On 19 December 2017, RMB670,000 (“Property 2”) was seized in another Police operation.  The money was sealed separately in 67 TEPEs and eventually handed over to the defendant for keeping in the safe.

6.  Property 2 was required in a trial on 4 April 2018 and the officer handling the TEPEs found that the money had been rearranged into 34 sealed TEPEs. Property 2 was not produced into evidence and was returned to the defendant on the same day.

7.  On 8 June 2018, Chief Inspector Wong, supervisor of the defendant, inspected the safe and discovered that the 34 TEPEs, which supposedly contained Property 2, had been cut open with prop money placed inside.  Property 2 had gone missing.

8.  The 5 TEPEs, which supposedly contained Property 1, had also been cut open and were found inside a steel filing cabinet in the office.  Property 1 had gone missing.

9.  The defendant was arrested on the same day.  2 video recorded interviews were conducted with the defendant.  He confirmed that he was the only one with access to the safe.

10.  He confessed to stealing the Property 1 money from the safe but could not remember when he did so.

11.  He also confessed to stealing the Property 2 money from the safe through 5 to 6 appropriations between January and March 2018.

12.  The defendant had used scissors to cut open the TEPEs which contained Property 2, replaced them with prop money, leaving 5 real RMB banknotes on top of each of the stack of prop money as a disguise.  He then re-sealed the bags.  He took the remaining RMB banknotes as well after the trial in relation to Property 2 had concluded.

13.  The defendant used the money he stole to repay his soccer betting debts.

14.  The total amount stolen was HK$31,290 and RMB677,500 (HK$830,000).

Previous convictions

15.  The defendant is of previously clear record.

Mitigation

16.  The defendant is 42, married with 2 children aged 6 and a half and 3.  I am told that the defendant will be terminated upon his conviction and stands to lose his pension.  The defendant still owes finance companies and the Police Credit Union some $2 million.  The debts are as a result of the defendant’s gambling habit.  The defendant will file for bankruptcy.

17.  30 letters in mitigation were handed up.  They include letters from his immediate family, relatives, colleagues, former teachers, longtime friends and schoolmates, the defendant’s piano teacher and pastor.  They speak to the defendant’s good character, of him being a good Police officer and a loving father.

18.  According to the defendant’s own letter in mitigation, he started to gamble and borrow from financial institutions to try to ease his financial difficulties brought about in part by medical related expenses.

Sentencing guidelines

19.  It is not disputed that the theft committed by the defendant involved a serious breach of trust and that the sentencing guidelines in the case of HKSAR v Cheung Mee Kiu[1], as revised in the case of HKSAR v Ng Kwok Wing[2] apply.

20.  For theft involving $250,000 to $1 million, the range of sentence is 2 to 3 years’ imprisonment.

21.  The total amount stolen is around HK$861,290.  An arithmetical application of the tariff would lead to a starting point of 34 months’ imprisonment.  This is the starting point I adopt.

22.  The theft was not a one off appropriation but took place over a period of at least a few months.  Not only did the defendant take the money, he lied to his colleague when asked about the TEPEs and had replaced the real money with prop money to avoid detection.  The stealing was premeditated and carried out with a certain degree of sophistication.

23.  It was mentioned in a number of the mitigation letters that habitual gambling was the cause of the defendant’s troubles.  In one of the letters, the defendant was described as a ‘victim’ of the legalization of soccer gambling.  There is, however, no evidence that the defendant was in fact suffering from any gambling disorder, nor has Mr So averred to this ground of mitigation.

24.  I accept that the defendant stands to lose a lot as a result of his conviction including his career and pension.  Yet, the defendant has no one but himself to blame for his fall from grace.  Being an experienced Police officer, he must have been painfully aware of the possible, and likely, consequences of his action.

Mitigating factor

25.  The defendant had been an exceptional Police officer and had contributed much to society over the years.  I find that there should be a sentencing discount of 2 months on the starting point on this basis, leading to a sentence of 32 months’ imprisonment.  Any discount that is to be given to the defendant based on his frank admissions is subsumed in the discount granted to him for his plea of guilty. 

26.  The defendant is, therefore, sentenced to 21 months’ imprisonment after granting him the full one-third discount.

27.  I will add that this is not the end of the road for the defendant.  He has owned up to his misdeed and will suffer the punishment.  He will still have the rest of his life to be with his beloved family, especially his children.

28.  The defendant’s friends and former colleagues will still be there when he rejoins society.  They will be a formidable team in support.

29.  I sincerely believe that the defendant still has much to give back to the community, and I must urge the defendant to not give up.  Judging from what I have learned about the defendant’s character through the words of his family and friends, I have no doubt that he will be able to emerge from this saga a stronger and better person.