HKSAR v. LEUNG HON YIN

DCCC 990/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 990 OF 2014

-----------------------

-----------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.  The defendant, Leung Hon Yin, pleaded guilty before me to eight charges of theft. A total sum of $1,970,000 was stolen.

2.  At all material times, the defendant was an agent of a Grand Ages Precious Metal Limited.  The victim, Madam Kam, was a client of the defendant. Madam Kam came to know the defendant in 2008 as a friend.

3.  In 2012, Madam Kam became a client of the defendant.  The defendant invited Madam Kam to open an account in the company for investment. Madam Kam accepted and opened an account.  She also signed an authorisation letter to authorise the defendant to make transactions on her behalf.

4.  Between 20 March 2012 and 15 July 2013, Madam Kam signed a total of eight cheques payable to the company with a total sum of $1,970,000. All these cheques were handed over to the defendant by Madam Kam in person.  The defendant then gave Madam Kam an electronic receipt via Whatsapp. All the cheques were prepared by the defendant in the presence of Madam Kam.  Madam Kam saw the defendant putting the company as the beneficiary, and she signed the cheques for investment.

5.  Madam Kam checked that all the cheques had been deposited or cashed.  However, she had never received any statement or investment report from the company.

6.  On 19 November 2013, the defendant gave Madam Kam a statement of her account.

7.  In March 2014, Madam Kam felt strange as she had not received any return for her investment.  She went to the company and asked about the matter, and she found that the defendant had left the company.  The eight problematic cheques were never deposited into her account.  She therefore reported the matter to the police.

8.  Police investigation revealed that the eight problematic cheques signed by Madam Kam were disposed of in various ways.  Two cheques, the subject matters of Charge 1 and Charge 7, were cashed by the defendant.  Four cheques, the subject matters of Charge 2, 3, 4 and 8, were deposited into the defendant’s bank account with HSBC, Standard Chartered Bank, ICBC (Asia).  For the remaining two cheques, the subject matters of Charge 5 and 6, they were deposited into the bank account of a Mr Lin with the Bank of Communications.  Mr Lin was contacted by the police, and he told the police that it was the defendant who requested to borrow his account to deposit the cheques.  Mr Lin therefore helped the defendant to deposit the two cheques and withdrew the money for the defendant.  The money withdrawn was passed to the defendant.

9.  The defendant was subsequently arrested on 22 May 2014 in Hong Kong International Airport when he entered Hong Kong. Initially, the defendant remained silent under caution.  In a subsequent video-recorded interview, the defendant told the police, inter alia:-

(1) he met Madam Kam as a friend in 2009 when he was an insurance agent;

(2) about two years ago, the defendant became a customer manager of the company;

(3) he opened an account in the company for Madam Kam on 26 February 2012;

(4) he admitted using an erasable pen to help Madam Kam to fill out the particulars of the cheques concerned and later altered them;

(5) he admitted he had forged two receipts, one promotional leaflet and monthly statements shown to him in the video-recorded interview;

(6) the forged documents were given to Madam Kam to persuade her to invest more and to cover up the offences;

(7) he had deceived about $1.8 million to $2 million from Madam Kam;

(8) the cheque, which was the subject matter of Charge 8, was shown to the defendant and he admitted that it might be one of the cheques he had altered;

(9) the initial money that Madam Kam had invested had all been lost; and

(10) because the defendant suffered loss in investment, he stole the money from Madam Kam for investment.

10.  The defendant has hitherto a clear record in Hong Kong.  

11.  The antecedent statement of the defendant reveals that the defendant was born in China in 1985.  He is now 29 years old.  He received education up to Form 5 level in Hong Kong.  He had worked as an estate agent and investment agent in Hong Kong.  He is still single and he resided with his family members before his remand.

12.  Mr Wong in mitigation told me that the defendant was brought to Hong Kong by his parents when he was 3.  Mr Wong accepted that the present case is a serious case of theft which involved breach of trust on the part of the defendant.  The defendant was a manager of the company concerned, and the victim was the defendant’s client, and the defendant has stolen from his client a total amount of $1.97 million.  

13.  The eight offences in question spanned over a period of around one year.  As the defendant was born to a grass-root family, the family members of the defendant have no means to compensate the victim for her loss.

14.  For the background of the offence, as revealed by the defendant in the mitigating letter written by him, he committed the offences in an attempt to recoup the loss that he had suffered in his own investment.  He failed in his endeavours and all the moneys were lost.  Mr Wong told me Madam Kam had in fact issued a total of 11 cheques.  Three of them were in fact deposited into the account of Madam Kam with the company. 

15.  The defendant in his own mitigating letter said that he started off as an insurance agent.  He enjoyed success in his earlier career.  However, he suffered great loss in his own investment.  After he joined the company in question, Madam Kam became his client.  For the initial investment by Madam Kam, which was in the amount of $200,000, the money was all lost in a few days’ time.  In a desperate attempt to recoup the loss, the defendant committed the offences in question.  However, all the moneys stolen by the defendant were also lost in the investments.

16.  Mr Wong told me that the defendant went to Australia with a view to work there to make some money.  Eventually, the defendant decided to return to Hong Kong to face the reality.  Mr Wong urged me bear in mind the totality principle in sentencing the defendant for the eight offences in question. 

17.  In sentencing the defendant, I have borne in mind the facts of this case.  The victim, Madam Kam, was a friend of the defendant and also a client of the defendant.  What the defendant did was in blatant breach of the trust that the victim had on the defendant.  The eight offences in question spanned over a long period of time.  As the defendant has no means to compensate the victim, Madam Kam has to bear the entire loss of $1.97 million.

18.  In sentencing the defendant, I have borne in mind the tariffs as set down in Cheung Mee Kiu CACC 99 of 2006.  For Charge 1, a starting point of 1-year imprisonment is appropriate.  For the guilty plea and clear record of the defendant, the defendant is entitled to one-third reduction.  That would bring his sentence down to 8 months’ imprisonment.  On Charge 1, I sentence the defendant to 8 months’ imprisonment.

19.  Charge 2 concerned HK$1.5 million.  A starting point of 3 years’ imprisonment is called for.  Again for the clear record and the guilty plea of the defendant, I shall allow the defendant one-third reduction.  On Charge 2, I sentence the defendant to 2 years’ imprisonment.

20.  On Charge 3, a starting point of 15 months’ imprisonment is called for.  The clear record of the defendant and his guilty plea would bring his sentence down to 10 months’ imprisonment.  On Charge 3, I sentence the defendant to 10 months’ imprisonment.

21.  For Charge 4 to Charge 8, for each of the offences, I take a starting point of 1-year imprisonment.  The defendant is entitled to one-third reduction for his clear record and his guilty pleas.  On Charge 4 to Charge 8, for each of the offences, I sentence the defendant to 8 months’ imprisonment.

22.  Bearing in mind the totality principle, in my judgment, a total term of 30 months’ imprisonment should sufficiently reflect the overall criminality of the eight offences in question.  To achieve that end, I order the sentences for Charge 1, Charges 3 to 8 are to run concurrently with each other, but 6 months of the sentences for Charge 1, Charges 3 to 8 shall run consecutively to the sentence for Charge 2.  Hence, the defendant has to serve a total term of 30 months’ imprisonment.