HKSAR v. LAI YIU WA

DCCC 360/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 360 OF 2009

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of theft, contrary to section 9 of the Theft Ordinance, Chapter 210 (charges 1 & 3) and one charge of fraud, contrary to section 16A of the Theft Ordinance (charge 2).

2.  Full particulars of the offences are set out in the admitted facts. In summary since November 2002 Forever Profits Development Ltd operated the butcher stalls within Wellcome supermarket. The defendant was a director of Forever Profits and responsible for purchasing and delivering livestock, including arranging delivery of the livestock first to to the slaughterhouse, then to the workshop of Forever Profits for processing and finally to Wellcome.

3.  In April 2007 Forever Profits discovered huge discrepancies between the total turnover and the profits made. Subsequent enquiries revealed differences between the number of live pigs purchased and the number of slaughtered pigs sent to the workshop as well as the processed pork received by the butchers from the workshop.

4.  The defendant suggested that someone unknown might have stolen the pigs and that Fuk Lee Co Ltd, who arranged the transportation of the slaughtered pigs, should be held responsible and said that they had agreed to pay $270,000 in compensation. When one of the other directors of Forever Profits contacted Fuk Lee, the proprietor revealed that the defendant had approached him requesting them to do him a favour by bearing the responsibility for the missing pigs. The proprietor refused and further revealed that the defendant had instructed one of their drivers to deliver slaughtered pigs to a meat stall owned by his elder brother and to deliver pig entrails and pig heads to other meat purchasers.

5.  The directors of Forever Profits then held a meeting with the defendant who admitted that he had stolen one pig each day for about two years from which he kept the proceeds of about $40,000-50,000 per month; he had asked Hop Chung Transportation Company and later Fuk Lee to help him deliver pig entrails to buyers, again keeping the proceeds of sale totalling $600-700,000; occasionally pig heads were sold at $10 per head and lard sold for $10,000 per month of which the defendant only returned $7,000 to Forever Profits (charge 1).

6.   The defendant also admitted he falsely represented HO Kam-hung worked for Forever Profits as a result of which the defendant received $283,500, which was paid in cash cheques as wages for HO Kam-hung (charge 2).

7.  After the meeting the directors also discovered discrepancies in the account with Sun Fat Beef Trading Company. Between August 2006 and June 2007 Forever Profits had received invoices purportedly from Sun Fat totalling $1,928,999 which they duly settled. The actual amount received by Sun Fat was however only $848,092. Enquires revealed that when Forever Profits paid Sun Fat the defendant was able to cash the cheques and then pay Sun Fat with his own cheques. Having obtained a bundle of blank invoices from Sun Fat the defendant submitted false payment invoices to Forever Profits enabling him to steal from Forever Profits the sum of $1,080,907 (charge 3).

8.  This was systematic stealing carried out by the defendant over a number of years. This was a gross breach of trust, as a result of which the defendant has benefited between HK$2.9 and $3.26 million.

9.  In passing sentence I have considered the principles laid down in R v Clark (1998) 2 Cr App R 137 as applied in HKSAR v CHEUNG Mee-kiu [2006] 4 HKLRD 776 as revised in HKSAR v NG Kwok-wing [2008] 4 HKLRD 1017. In CHEUNG Mee-kiu the Court of Appeal said the proper starting point after trial where the amount stolen was between HK$3 million and $15 million is 5-9 years imprisonment.

10.  I take into account everything said on the defendant’s behalf by Mr Boyton, in particular that the defendant surrendered to the police back in July 2007 at a time when he was in China.

Starting point

11.  Hitherto the defendant was a person with no previous convictions. Good character is taken into account in determining the proper starting point and additional discount given only where there is evidence of positive good character (see Secretary for Justice v TSO Tse-kin [2004] 2 HKC 139 as affirmed in HKSAR v WONG King-wai [2008] 3 HKLRD 293). The one-third discount is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time (see Secretary for Justice v CHAU Wan-fun [2006] 3 HKLRD 577).

12.  Further in my view the defendant cannot be said to be a true first offender. In Secretary for Justice v AU Man-Kei, Alex CAAR 2/2000 a case involving a model-agency fraud, the Court of Appeal said:

“It has long been regarded, as this court said in Shum Ming and others and The Queen (1978) HKLR 41 at p. 42, as difficult to regard persons who appear before the court for the first time, and who are charged with a number of offences, as true “first offenders". We confirm, should it be necessary to do so, that the approach taken in Shum Ming towards offenders committing a series of offences remains the proper one to adopt."

13.  The defendant has pleaded guilty to a course of dishonest conduct over several years. I am satisfied no additional discount is to be given to the defendant for good character.

14.  I am satisfied the proper starting point for the theft charges is 3 years and 6 months imprisonment for charge 1 and 3 years imprisonment for charge 3 and for the fraud charge 2 years imprisonment. Taking into account the length of time the thefts were perpetrated I am satisfied an overall starting point of 5 years imprisonmentis appropriate.

Delay

15.  The defendant first confessed his crimes to his fellow directors in July 2007. As noted earlier the defendant surrendered to the police later that month. This was as a result of the police calling the defendant after the directors reported the case to the police because they were unable to locate the defendant. Whilst the case has taken a relatively long time to come to court the prosecution cannot be said to be at fault. I accept the explanation given in court by Miss Chiu as to why the investigation took over one year. Equally the defendant is not at fault for this delay. In the circumstances I am satisfied that some credit should be given on account of delay (see HKSAR v WONG Ka-wah CACC 260/2006). Taking into account the defendant also surrendered to the police I do this by reducing the starting point by 6 months to 4 years and 6 months imprisonment.

16.  Giving the defendant full credit for his pleas of guilty he is sentenced as follows:

Charge 1 – 2 years and 4 months imprisonment;

Charge 2 – 2 years imprisonment,

4 months consecutive and 20 months concurrent to charge 1;

Charge 3 – 1 year and 4 months imprisonment;

4 months consecutive and 12 months concurrent to charges 1 & 2.

This makes a total sentence to be served by the defendant of 3 years imprisonment, which I am satisfied properly reflects the defendant’s criminal culpability on the three charges.