HKSAR v. POON YUEN FUN, LOUISA

DCCC1330/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1330 OF 2010

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Reasons for Sentence

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1.  Defendant was convicted upon his guilty pleas of two charges of theft. In sentencing, I have considered the whole circumstances of the case including its nature and facts, background of the defendant and mitigation put forward on her behalf. The facts of the case may be summarised as follows:-

2.  Since the year 2000, the defendant was employed in a company owned by PW1 and PW2 as the only person to handle all the accounting affairs of the company.  The company had been holding a corporate account with Sin Hua Bank, Account 2.  In 2005, phone and internet banking services were made available.  A set of passwords were given to the defendant. With it she could log in the internet banking and transfer money out of the account. 

3.  Earlier, in July 2004, under the arrangement of the defendant, PW2 was induced to open a personal account with Hang Seng Bank, Account 3.  Having obtained an ATM card, PW2 passed it together with the password to the defendant.  Since then, PW2 had all along forgotten the existence of this account.

4.  In December 2004, PW2 opened a bank account on behalf of the company with Hang Seng Bank, Account 1.  The application form was filled in by the defendant.  Without the knowledge of PW2, Account 3 was added as a designated beneficiary of this account.  Phone and internet banking functions are available to this account.  PW2 gave the defendant the passwords for operating of these functions. 

5.  Since 2008, the defendant had been the only staff of the company working in its new office. 

6.  In June 2009, the defendant asked PW2 if she could lend money to the company for its operations.  PW2 agreed and authorised the defendant to apply for a personal loan on her behalf through Account 3.  A loan of $60,000 was deposited into Account 3. 

7.  Between 8 July 2004 and 22 October 2009, the defendant transferred either by cheque or transfer a total sum of $3,604,642.07 from Account 1 and Account 2 to Account 3.  She had also used the ATM card of Account 3 to withdraw more than 400 times money to the sum of 3,639,080 from the account for her personal use.  The above facts are relevant to charge 1. 

8.  In relation to charge 2, the defendant stole the cash of $50,000 which PW1 gave her on 12 October 2009 to settle his credit card bill. 

9.  In October 2009 when PW1 enquired with the defendant about the financial affairs of the company, the defendant admitted to have transferred a sum of $3.7 million from Account 1 and Account 2 to Account 3 and withdrew the sum from the latter account.  She also admitted to have stolen $50,000 cash he had given her for payment of his credit card bill.

10.  The defendant was arrested on 4 March 2010.  She admitted the offences. 

11.  She is 52 years old.  She is not a first-time offender.  In October 1996, she was convicted of 22 charges of theft and five charges of forgery.  For these offences she was sentenced in the District Court to a total of 3 years’ imprisonment. 

12.  At the time of the last case, she was working in a securities firm also performing accounting duties.  She was then married with her previous husband and living together with their daughter.  I was told that she suffered great loss in her investment in stock and in the circumstances she committed the offences in that case.  The sentences were imposed upon a guilty plea, thus reflecting a case of quite substantial severity.  She was discharged on 17 October 1998. 

13.  Since her husband had not paid the rental she could no longer live in the previous matrimonial home.  She began to live with her parents.  Her mother passed away in 1999.  At that time her daughter had to live with her uncle.  She was not happy with the arrangement.  As a result, the defendant was in a very bad mood.  In the circumstances, with the hope of releasing stress, she started to engage in gambling in Macau.  Her father passed away in 2001.  She was forced to move out and rent a room to live since her brother decided to sell the flat.  In order to earn quick money so that she could live with her daughter as soon as possible, she engaged more heavily in gambling.  It only resulted in her borrowing from loan sharks a total of $100,000.  The burden became heavier and heavier since she was unable to repay.  I was told that in these circumstances she committed the present offences.  She divorced in 2006 and was remarried in 2010.  Her present husband left her after knowing the present case.

14.  I was told that the defendant is very remorseful.  I was also told that she made frank admission to her employers and had made restitution of $494,200 by paying from time to time into the relevant account.  The acts of restitution were confirmed by the prosecution.

15.  The offences committed by the defendant are serious.  In my judgment what the defendant did involved a breach of trust. 

16.  The Court of Appeal agreed in the case of R v Ying Lai Chau 1991 1 HKLR 48 what Lord Lane said in Barrick [1985] 81 Cr App R 78 in relation to the matters to which a court should pay regard in determining what the proper level of sentence should be:-

1. The quality and degree of trust reposed in the offender including his rank.

2. The period over which the fraud or the thefts have been perpetrated.

3. The use to which the money or property dishonestly taken was put.

4. The effect upon the victim.

5. The impact of the offences on the public and public confidence.

6. The effect on fellow employees or partners.

7. The effect on the offender himself.

8. His own history.

9. Those matter of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like; and finally

10. Any help given by him to the police.

17.  In my judgment, the quality and degree of trust reposed on the defendant was high.  Over a period of about five years she had committed the offences on more than 400 occasions.  A certain degree of planning was involved.  As a result, more than $3.6 million belonging to her employer were appropriated.  She used the money primarily on gambling.  The defendant could not expect to enjoy the benevolent view a first time offender may have from the court.

18.  I have also taken into account what the Court of Appeal said in HKSAR v Cheung Mee Kiu CACC99/2006 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  Cheung Mee Kiu was a decision in November 2006 which was after the defendant had started to commence these series of offences.  However, the Court of Appeal was just adopting the guidelines set down in R v Clark which was decided in 1998 and had been followed consistently in Hong Kong.  In Cheung Mee Kiu the Court of Appeal suggested that for an amount of $3 million to $15 million a sentence of 5 to 9 years’ imprisonment should be considered.  In the subsequent case of Ng Kwok Wing, the Court of Appeal said for this band a sentence of 5 to 10 years’ imprisonment should be considered.

19.  In all the circumstances, I am of the view that an immediate custodial sentence is the only proper and appropriate sentence to be imposed.  I adopt the following starting points:-

Charge 1, 5 years and 3 months.

Charge 2, 12 months.

20.  The defendant pleaded guilty to each charge, she is entitled to a one-third discount for this reason. 

21.  In addition, her restitution has to be taken into account.  In HKSAR v Cheung Suet Ting CACC226/2009, Mackintosh J said that restitution can amount to mitigation, particularly when compared to other factors such as a plea of guilty.  Restitution is to be encouraged because it is manifestly in the interest of victims.  In SJ v Lin Ming Ying [2002] 2 HKLRD 823, Stuart Moore VP said that whatever the defendant’s motives for making reparation, the fact that dishonest gains have been repaid is nonetheless a material factor in mitigation. 

22.  The weight to be attached to restitution as a mitigating factor depends always on the circumstances.  Having considered the whole circumstances in the present case, I give the defendant a further discount of 6 months for charge 1, and for this charge only on the basis that the restitution money was paid into the account, not to PW1.  As a result, I sentence the defendant to 3 years’ imprisonment for charge 1 and 8 months’ imprisonment for charge 2.

23.  The two offences involved two separate victims. The commission of charge 2 may be regarded to have increased the culpability. However, having regard to totality, I order the sentences to run concurrently. The defendant is to serve a total sentence of 3 years for the two offences.