HKSAR v. CHAN OI LAN

 DCCC552/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 552 OF 2009

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to four offences of being an agent accepting advantages contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance Cap.201 and one offence of theft contrary to section 9 of the Theft Ordinance Cap.210. An alternative charge was withdrawn. On the five offences you admitted the brief facts and I convicted you.

2.  Those facts were as follows. You were employed by Kings Toys Limited as purchasing manager. You would place orders for suede cloth with Wing Tak Textile Company Limited and for plastics with BCW Industrial Company Limited, Upward International Limited and Ming Shing Company Limited. Your contacts were Miss Chan Siu-ping, the operator of Wing Tak Textiles; Mr Chan Cheuk-ming, the operator of BCW; Mr Li Jianqiang, a shareholder of Upward International, and Mr Wong Tak-hong, the marketing manager of Ming Shing Company Limited.

3.  I will deal first of all with Charge 1. In June 2004, Miss Chan of Wing Tak Textile Company, approached you and offered you illegal rebates for placing orders for suede from her company. The rebate was to be $3 per yard of suede which would be added to the actual price. Between 14 June 2004 and 24 June 2008 you placed 94 orders for suede worth $2.6 million. In return, Miss Chan gave you $528,053 by way of cash deposits into your bank account and sometimes by cash.

Charge 2

4.  Mr Chan set up BCW and in June 2006 offered you rebates for ordering plastic from his company. You agreed. The rebates ranged from 10 to 70 cents per kilogram of plastic ordered. After Mr Chan was paid by Kings Toys he deducted the true price of the goods and paid the difference into your bank account or gave you cash. Between 6 April 2006 and 24 January 2008 you placed 17 orders worth 3.2 million with BCW and received $190,000 as rebates.

Charge 3

5.  In early 2008 you phoned Mr Li of Upward International and ordered 40 tins of plastic worth US$85,000. You solicited a rebate of US$50 per tonne. You, in fact, received RMB14,400 into your bank account.

Charge 4

6.  In early 2008 you solicited a rebate from Mr Wong of Ming Shing. You met with Mr Wong and Mr Chan, a shareholder of Ming Shing, in Dongguan. A rebate of 27 cents per kilo of plastic was agreed. In February of 2008 you placed an order for plastic. You received $1,150 by way of rebate.

Charge 5

7.  The company received monetary sponsorship from various suppliers for the purchase of gifts for lucky draws for staff at Mid-autumn Festival and Chinese New Year. You were responsible for collecting these. Between 1 January 2004 and 31 January 2008 you stole $486,956.

8.  On 12 June 2008 you surrendered to ICAC and made a full confession. You admitted to three previous convictions all of which related to crimes of dishonesty.

9.  You first pleaded guilty to all offences on 2 July 2009. At that time you indicated a wish and willingness to assist in the prosecution of others. To that end, sentence was adjourned on a number of occasions. Today I record my thanks to the prosecution for the provision of a very helpful chronology of events which explains in detail the assistance that you have offered and the assistance that you will offer. I note that you have given evidence in the case number TWCC3034/2009 and that the evidence you gave, you gave properly and fully. Also you have indicated a willingness to give evidence in two further cases which will come before the District Court in May.

10.  On your behalf Mr Yuen has earnestly asked me to deal with you today in view of the enormous pressure you have been under. He explained in detail that since your plea of guilty your life has effectively been on hold in terms of employment, marriage and starting a family. Prosecution indicated a position of relative neutrality on that point. That demonstrates an appreciation of the situation. Normally one would wait until all cases had been disposed of but in view of what has been said I deem it would be unfair to put you through further pressure, and I intend to sentence you today.

11.  I do make the point that I will be sentencing in the expectation that you will fulfil your promise to assist the prosecution by way of giving evidence in those two cases.

12.  Mr Yuen addressed me very fully in mitigation. He told me that you are 37 years of age and about to be married. Throughout these proceedings your boyfriend has stood by you and is here in court today with his father. Your parents are in their 60s and suffer from various illnesses and you have been very supportive towards them. Several letters of support have been presented to me from the family and I have noted those.

13.  Since the commission of the offences I am told, and this is confirmed by documentary evidence, that you have engaged yourself in charitable or social work. I am told, and this has been confirmed by prosecution, that all moneys taken by way of theft or as rebate have in fact been repaid.

14.  You yourself surrendered to ICAC and were co-operative thereafter. Mr Yuen, on your behalf, has emphasised the assistance you have rendered to the prosecution in other cases and reiterated the promise of further assistance by way of giving evidence. Whilst accepting you have three previous convictions for theft, he explained these were of a minor nature relating to shop theft.

15.  I turn now to the sentence. In view of the assistance that you have rendered to the prosecution and will render to the prosecution and your plea of guilty, I have determined that a discount of 50 per cent is appropriate in all the circumstances. In coming to this conclusion I have noted the authorities to which Mr Yuen referred me. The offences are serious. There is no doubt of that, and very sensibly and very fairly Mr Yuen faces up to the fact that you will have to go to prison. Of course what is being urged upon me by mitigation is there to try and reduce the starting point. There is much mitigation in this case and I do feel some sympathy for your position though, as I have said, the offences were serious, I find Charge 5 to be particularly serious in view of the fact that it was a breach of trust and you stole effectively from your colleagues. That was money intended to be spent for their entertainment at the various festivals I have referred to.

16.  The main points of mitigation I find are, first of all, your voluntary surrender to the ICAC and your co-operation thereafter. The full repayment of all moneys illegally obtained is a large point of mitigation and I note also with approval that since your arrest you have not wasted your time but you have contributed significantly to society by way of your social work. I note also that you enjoy the support of your family and your husband-to-be.

17.  By way of aggravation we have the amount involved and the time spanning some four years over which these offences took place; the amount of illicit rebates, or perhaps more accurately described as “bribes” you accepted exceeded $700,000 and the theft which was a gross breach of trust, just under $500,000. As I have said, these have been repaid. I am aware also that since your plea of guilty you have been under enormous pressure and, as I have always said, I have noted the assistance you have rendered to the prosecution and intend to render to the prosecution.

18.  Whilst we have four offences of bribery and one of theft, I intend to treat these as a course of conduct over the four years.

19.  On the 1st charge I take a starting point of 3½ years imprisonment, that is, 42 months reduced to 21 months; on the 2nd charge, 2½ years, that is, 30 months reduced to 15 months; on the 3rd and the 4th charges, some 12 months reduced to 6 months; and on Charge 5 which is the theft, a period 3 years imprisonment reduced to 18 months. All these periods will be served concurrently, making a total of 21 months’ imprisonment.