HKSAR v. CHEUNG YUET KAM, Alice

DCCC727/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 727 OF 2010

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

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

Reasons for Sentence

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

1.  The defendant, Miss Cheung Yuet-kam, Alice pleads guilty to three counts of agent accepting an advantage, contrary to section 9(1)(a) and punishable under section 12(1) of the Prevention of Bribery Ordinance, Cap.201.

2.  The particulars of the offences are set out in the charge sheet, the court is not going to repeat them here now. 

Facts admitted

3.  The defendant was the General Merchandising Manager of the Direct Fashion Sourcing Limited (“Direct Fashion”), responsible for handling its purchase orders.  The Max Regent Garments Company Limited (“Max Regent”) was one of the garment suppliers of Direct Fashion and Miss Ho Kit-fong was one of the persons in charge of Max Regent.

Charge 1

4.  Between December 2006 and November 2007, the defendant placed 30 garment orders with Max Regent on behalf of Direct Fashion for an amount of US$443,680.  On the instruction of Ho, HK$119,500 was deposited by Max Regent into the joint account of the defendant and her husband on 3 April 2008.

Charge 2

5.  Between December 2007 and April 2008, the defendant placed 38 garment orders with Max Regent on behalf of Direct Fashion for an amount of US$1,375,600.  On 28 August 2008, HK$127,424 was paid by Max Regent into the joint account of the defendant and her husband.

Charge 3

6.  Between May and November 2008, the defendant placed 50 garment orders with Max Regent on behalf of Direct Fashion for an amount of US$539,751.  On 20 January 2009, HK$350,070 was paid by Max Regent into the joint account of the defendant and her husband. 

7.  The defendant was arrested on 20 July 2009.  She confessed under caution and admitted that she had agreed with Ho to place the orders with Max Regent at an inflated price and to receive the inflated amounts as rebates from Max Regent.  She further admitted receiving a commission of HK$1 for each piece of garment Direct Fashion purchased from Max Regent.  

8.  The defendant agreed that the sums of HK$119,500 and HK$127,424 were rebates from Max Regent, but said that HK$550,070 was a loan from Ho to be offset by rebates payable to her. 

9.  Direct Fashion did not allow its employees to accept or solicit any commission, rebates or other advantages from its business counterparts.

Criminal record

10.  The defendant has a clear criminal record.

Mitigation

11.  The defendant is aged 49, married with two daughters aged 17 and 21.  Her husband suffers from depression and has been unemployed since 2007.  The defendant received education up to Form 5.  She has become unemployed because of the present case and is living on savings.  She had worked in Direct Fashion for over 11 years and had gone through the ranks to become General Merchandising Manager, earning about HK$40,000 a month.

12.  Counsel for the defence submits that the offences were instigated by Ho, who was once a colleague of the defendant in Direct Fashion and had left the company to set up the Max Regent.  She offered the bribes to the defendant and the defendant accepted them because she needed the money to finance the studies of her two daughters in Australia which amounted to about HK$400,000 a year. 

13.  The defendant did not realise the seriousness of the offences and was under the belief that there was no loss to the employer. 

14.  Her counsel submits letters of mitigation from the elder daughter, the husband, mother and father of the defendant.  They all express a good opinion of the defendant and point out that the defendant committed the presence offences because of the financial burden of the studies of the daughters in Australia.  The elder daughter even blames herself for being rebellious, resulting in her family sending her to study in Australia to keep her away from bad peers.  They point out that the defendant is extremely remorseful and ask the court to treat the defendant leniently. 

15.  The counsel submits two authorities to the court.  In the case of AG v Leung Kin Wai, [1996] 4 HKC 588, a senior manager of a toy company was convicted after trial of two counts of soliciting and five counts of accepting an advantage, in which a total sum of about HK$470,000 was paid to him.  The Court of Appeal was of the view that the proper starting point for each set of offences should be 3 years’ imprisonment and that a total imprisonment term of 4 years was appropriate for all the offences.

16.  In the case of HKSAR v Ng Siu Pin, CACC364/2004, the defendant pleaded guilty to 25 counts of accepting an advantage as an agent involving an amount of about HK$883,000 which occurred over a period of about 3 years.  Having taken into account the detention of about 10 months of the defendant in Australia pending extradition to Hong Kong, the court imposed a total sentence of 2 years 2 months’ imprisonment and the sentence was affirmed by the Court of Appeal.  

17.  The defence counsel emphasised that in the present case:

(a) the defendant pleads guilty to the offence, showing remorsefulness;

(b) the defendant did not instigate the offences;

(c) the offences did not endanger the public;

(d) the defendant has a clear record; and

(e) the offences actually constituted only one transaction.

18.  The defence counsel urges the court to take totality principle into consideration and deal with the defendant leniently.

Sentence

19.  As rightly pointed out by the defence counsel, there are no sentencing guidelines in the offences in the present case.  The reason is simple.  The circumstance in which these offences were committed could vary substantially, so did the sentences.  The court therefore has to consider the circumstances of each individual case to arrive at the most appropriate sentence.

20.  In the present case, the defendant accepted advantages amounting to about HK$600,000 from Ho over a period of slightly over 2 years.  According to the confessions made by the defendant to the ICAC, she and Ho agreed to inflate the prices of the garments and she received the inflated amount as rebates.  This obviously escalated the seriousness of the present case and was a gross breach of trust on the part of the defendant as an employee. 

21.  Having considered the whole circumstances of the case including the clear record of the defendant, the court adopts a starting point of 3 years 3 months’ imprisonment for each of the three charges.  Giving credit to the defendant for her plea of guilty, the court sentences the defendant to imprisonment of 2 years 2 months for each of the charges. 

22.  Having considered the totality principle and the culpability of the defendant in the present case, the court orders the sentences of all the three charges to run concurrently.  The defendant is go to prison for a total of 2 years 2 months.