HKSAR v. CHAN YIU CHOI

HCCC 110/2024

[2025] HKCFI 1814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 110 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 9 counts of theft[1] before Magistrate Ms. Vivian Ho, admitted to the summary of facts, and was, on 8^th April 2024, committed to the Court of First Instance for sentence. He confirmed his pleas and admission before me and his convictions were duly recorded.

FACTS

2.  The defendant joined the Four Seasons Hotel (“the Hotel”)  in 2013 as a waiter.  He became an accountant at the Hotel’s Accounting Department in June 2014.  

3.  At all material times, the defendant was responsible for preparing the Hotel’s cheques through its digital system (“iScala”); submitting the cheques for signing by the two relevant Department heads; sending out the cheques to the respective payees; keeping records of the relevant payments on iScala, and preparing the monthly list of payable transactions thereafter.

4.  On 7^th September 2021, an officer of the Hotel discovered that one of the Hotel’s payment of HK$490,000, paid through cheque #090896, appeared to have been paid to the defendant’s personal account.  When questioned, the defendant showed a scanned-copy of the cheque, which appeared to state the payee as “@3D Network”, one of the Hotel’s suppliers.

5.  Upon enquiry with that supplier, and based on the official check copy obtained from HSBC, it was found that the check was in fact made payable to the defendant, and that it had been deposited into the defendant’s personal account with Hang Seng Bank (“HSB”).

6.  3 days later on 10^th September, in a meeting with the Assistant Financial Officer, Security Officer and other officers of the Hotel, the Defendant admitted to impersonating others’ signatures on cheque #090896 because his father needed money for medication.  Later on the same day, the defendant affirmed his admission in a statement made to the Hotel.

7.  The theft was reported to the police the same day.  Upon search of the defendant’s office, a company check with the signature row cut off was found in his desk.  

8.  Subsequent investigation revealed that between 17^th July 2017 and 6^th September 2021 (both dates inclusive), the defendant had deposit 112 cheques of the Hotel into his 9 personal bank accounts and/or American Express (“AE”)  credit card account, in the total amount of HK$26,430,080.12.

Table 1
Count	Transaction period (both dates inclusive)	Total amount	Account number
1	5.7.2019 - 13.2.2020	430,000	HSBC 496-089509-833
2	20.6.2019	170,000	HSB 291-9321774
3	5.12.2019 - 6.9.2021	6,866,000	HSB 395-654759-888
4	17.7.2017 - 24.6.2021	16,505,891.05	AE 3763-396863-92000
5	6.9.2017	13,119.95	AE 3763-345883-72002
6	11.6.2018 - 14.5.2021	362,426.92	AE 3793-859079-71004
7	3.7.2018	7,800	AE 3763-976589-71003
8	15.4.2020 - 18.6.2021	850,842.20	AE 3763-994609-71007
9	21.4.2021 - 24.6.2021	1,224,000	AE 3793-889074-81008

9.  According to copies of the cheques provided by HSBC, those payable to the defendant’s HSBC and HSB accounts (i.e. Counts 1-3)  had the defendant’s name as the payee.

10.  For the cheques paid into the AE credit card accounts (i.e. Counts 4-9), they were stated to be payable to AE (American Express Int’l Inc)  but with the Defendant’s name and AE credit card account number stated on the back.

11.  The cheque payments to AE did not raise any suspicion at the time since AE was a recognized payee for the Hotel’s daily operation expenditure.

12.  Between 17^th July 2017 and 6^th September 2021 (both dates inclusive), the defendant had stolen a total of HK$26,430,080.12 from the Hotel via 112 Cheques.

13.  In order to commit and conceal the thefts, the defendant had, inter alia, (1)  forged the signature(s)  of the Hotel’s official(s)  on some of the cheques; (2)  entered false payment records into the iScala system and/or altered the name of the fund recipients in the system, and (3)  created false monthly list of payable transactions.  He did so dishonestly and with the intention to permanently deprive the Hotel of the money.

14.  The defendant had used the stolen money to purchase, among other things, a large number of luxurious handbags, watches and jewelleries which were recovered in his residence in a house search conducted on 2^nd November 2021. He was found to have also purchased a flat in Tseung Kwan O in 2019 at a consideration of HK$5,887,000, as well as a Porsche Macan GTS 2020 in 2020 for HK$1,217,644.20.

PREVIOUS CONVICTIONS

15.  The defendant has two previous convictions, both being for theft.  The first conviction was in 2010, when he was sentenced to 80 hours of Community Service.  The second was 8 years later in 2018 for shoplifting when he was sentenced to 7 days’ imprisonment suspended for 2 years and fined $8,000.  Given the lapse of time between his last conviction, and their different and less serious nature as gauged from the sentences, I will exercise my sentencing discretion and not enhance his sentence in this case on the basis of his previous convictions.

BACKGROUND AND MITIGATION

16.  The defendant was born in March 1986 and is 39 years old.  He holds a degree in Accounting from Shue Yan University in Hong Kong.  The defendant was employed as an auditor between 2010 and 2013 at an accountancy firm, and then as a waiter in the pub of the Four Seasons Hotel for a year, and eventually an accounting staff of the Hotel between 2014 and 2021.  He was an Accounting Manager of the Hotel prior to his arrest with a monthly salary of around $36,000 to $38,000.

17.  The defendant was living with his wife and 8 year old daughter at the time of his arrest.  He was the sole breadwinner of the family.

18.  During his remand, the defendant had enrolled in a distant learning program run by the Hong Kong Management Association, and had obtained, in March 2025, a certificate in Key Aspects of Effective Project Management.  

19.  Ms. Emily Yu, counsel for the defendant, submits that the scheme devised by the defendant was not a sophisticated or cleverly planned one, and the stolen moneys were redirected to the defendant’s various personal accounts which made them easily traceable.

20.  The defendant wrote in his letter of mitigation that he committed the offences while blinded by greed.  He regrets missing out on his daughter’s formative years and for “causing her trauma”.

21.  The defendant’s wife wrote about the defendant as a hardworking and responsible father, and how she had seen genuine remorse in him.

22.  The prison chaplain also wrote in mitigation, saying that the defendant impresses him as mature, loyal and polite.  He believes the defendant had repented and reflected on his conduct and is determined to change.

23.  The defendant’s younger sister wrote to say how the defendant has been a good brother who is considerate to his family.  She has seen how remorseful the defendant is and pleads for leniency.

24.  The defendant understands that personal circumstances count for very little in mitigation in such a case, and that the strongest mitigating factor is his timely pleas.  

SENTENCING

25.  The maximum sentence on conviction upon indictment for each single offence of theft is 10 years’ imprisonment.  

26.  The defendant was an accountant of the Hotel when he committed each of the 9 thefts.  In doing so, he was in breach of the trust reposed in him by his employer and as such causes his stealing to be more culpable.

27.  It is trite law[2] that the court needs to consider the following factors when sentencing cases that involved a person in a position of trust, who had exploited that position to steal:

(i)  the quality and degree of trust reposed in the offender including his rank;

(ii)  the period over which the fraud or the thefts have been perpetrated;

(iii)  the use to which the money or property dishonestly taken was put;

(iv)  the effect upon the victim;

(v)  the impact of the offences on the public and public confidence;

(vi)  the effect upon fellow-employees or partners;

(vii)  the effect on the offender himself;

(viii)  his own history;

(ix)  those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as happens, there has been a long delay, say over two years, between him being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

28.  In the case of HKSAR v Cheung Mee Kiu [2008] 1 HKC 113[3], having adopted the above sentencing approach, the Court of Appeal went on to lay down the following guideline bands for sentencing thefts cases involving breach of trust in Hong Kong:

“(a)  over $15 million — 10 years or more;

(b)  $3 million to $15 million — 5 to 10[4] years;

(c)  $1 million to $ 3 million — 3 to 5[5] years;

(d)  $250,000 to $1 million — 2 to 3 years;

(e)  less than $250,000 — less than 2 years.”

29.  In the case of HKSAR v Wong Chor Wo CACC 314/2006 (date of Reasons for Judgment: 13^th May 2009), the Court of Appeal reiterated the principle of sentencing in cases with multiple charges such as the present one:

“6. …The correct sentence should always be imposed for each individual offence where there are a multiplicity of offences before the court, and the question of totality then considered. The appropriate individual sentences are then imposed, either concurrently, or concurrently and wholly or partially consecutively, in order to properly reflect the totality of the offending.”

30.  In the case of Secretary of Justice v Nones Carmelita Galay [2022] HKCA 1081; CAAR 15/2021, the Court of Appeal adopted the following approach in Secretary for Justice v Yu Chun-hing [2022] 1 HKLRD 97 when sentencing multiple offences:

“61. …As a general rule, when a sentencing court is confronted with an offender who has committed multiple offences over a prolonged period it is best to conduct a sequential evaluation of the offending by reference to the chronological order of the offences or to any connection between the offences due to the nature of the offence, the involvement of the same victim or the offences arising from the same event.

62. In the present case, the gravity of the respondent’s offending increased in severity as he repeated his sexual abuse against multiple victims, and together with any other aggravating factor or factors that may have been present, this should have been reflected in the sentence of each offence as they were progressively addressed. Each time an offence is repeated that is a matter that should be taken into account together with other factors that may be present. It is therefore important that a sentencing court look at the specific offending and determine a specific sentence before embarking on an overview of the overall criminality involved in arriving at a total sentence.”

31.  The Court in Nones found the above principle equally applicable to cases of multiple offences of theft.

32.  Ms. Yu seeks to rely on HKSAR v Leung Chi Yuen [2018] HKCFI 1190 where the defendant stole $29.5 million over a period of some 5 years while working as an accounting clerk of a company.  The defendant incorporated a company 9 months into his employment and over the years deposited checks received from customers of his employer into the account of his own company.  He would withdraw the money and gamble it away.  When the corporate account was closed, only $1,515 was left.  In all, 1,802 checks had been deposited.  There the defendant was 44 years old and a qualified accountant with an Advance Diploma in Accounting.  He had 24 previous convictions for theft, 23 of which were in relation to one District Court case when he was 29 years old.  He had also been convicted for stealing $4.28 million from a shipping company where he was employed as a general manager.  He absconded on the first day of trial for that case, and was not arrested again until this $29.5 million case came to light.

33.  The sentencing judge adopted a starting point of 8 years 3 months’imprisonment.  The key difference between that and the present case is that there the prosecution had chosen to charge the defendant for all the stealing with one sole count of theft, and the judge’s sentencing power was, therefore, limited by the statutory maximum of 10 years’ imprisonment for a single offence of theft.

34.  I find that if the defendant in Leung Chi Yuen had been charged with multiple thefts, the learned sentencing judge would very likely have adopted a higher starting point given the appalling conviction record and the fact that 1,802 checks had been deposited in the course of the stealing.  As such, I am afraid I cannot rely too heavily on the sentence for comparison and guidance.  

35.  Ms. Yu also referred to HKSAR v Chong Hung Shek [2019] 2 HKLRD 937 and Yu Chun Hing (supra).  The latter case had been considered by the Court of Appeal in the said case of Nones.  As for Chong Hung Shek, the Court in Nones had already embraced the principle of a global view of culpability as put forward in Chong.  There is, therefore, no need for me to go into these two cases.

36.  In the above mentioned case of Nones, $14.6 million was stolen by a domestic helper over a 15-month period which involved a lot of hardship on the victim.  A global starting point of 10 years 6 months for the 6 counts of theft was found to be appropriate upon review of sentence.  

37.  In the Court of First Instance case of HKSAR v Kwok Wing HCCC 217/2014, Zervos J (as he then was)  found that a global starting point of 11 years was proper for $34 million stolen over a period of about 9 months in 20 counts of theft with a serious breach of trust on the defendant’s part, which involved him abusing his position of power and control within a public company by embarking on a series of dishonest and fraudulent transactions so as to misappropriate substantial funds of the company.

38.  I turn to the present case.  

39.  The defendant was an accountant of the Hotel.  His duties included compilation of audits and settling payments.  Before each check for payment to the Hotel’s suppliers, the defendant, as the responsible officer, had to insert payment details into the iScala system, print out the check from within that system, gather all the supporting documents for that payment, and submit them for signing by the heads of the Hotel’s Financial and Administration Departments.  

40.  After that, the defendant was required to scan the signed check into iScala for record, and then dispatch the check to the payee.  Meanwhile, for the Hotel’s internal record purpose, the defendant had to prepare a monthly list of payable transactions with all the details of the issued checks.

41.  The quality and degree of trust reposed in the defendant was significant.  

42.  The thefts were committed over a period of around 4 years.  During this long period, the defendant had forged signatures and altered computer records in the process of the stealing and their concealment on multiple occasions.  He had used 9 different accounts to receive the moneys, no doubt in order to avoid detection. All the thefts were premeditated and carefully carried out.  The stolen money appeared to have gone towards a luxurious lifestyle, with various luxurious items found from his home, and a posh vehicle to show.

43.  The total amount stolen over the period of the 9 counts is HK$26,430,080.12, which is a significant sum, although the theft was confined to within the Hotel and there should not have been much impact on the public and public confidence.  The effects of the thefts on his fellow employees or colleagues would likely not to have been too much, save possibly for their astonishment in finding out how much had been stolen over such a long period of time, and how blatantly.  

44.  I was informed that the Hotel had obtained final judgment against the defendant for the entire stolen amount in civil proceedings.  They have so far been able to recover close to $1.1 million from the defendant’s Hang Seng Bank savings and stocks account, and are in the process of enforcing that judgment for the full amount.

45.  Ms. Yu, very fairly, accepted that there has been no restitution initiated by the defendant, and confirmed that the defence is not seeking a reduction in sentence on this basis.  Be that as it may, the recovery of some of the stolen money is relevant to the impact on the victim company of the theft and is to be taken into consideration.

46.  There is no evidence to suggest that the defendant himself had been badly affected by his commission of the offences apart from the expected reactions to, and consequences from, having been found out, arrested, and prosecuted.  

47.  Just as the defendant had written in his letter of mitigation, he gave in to greed and his desire for worldly possessions when he committed the offences, causing his company huge financial loss, and losing a job full of prospect as a result, and he has no one but himself to blame for his present predicament.

48.  Having taken into consideration all the facts, I would find that the culpability of the defendant in the present case is slightly below that of the said Nones and Kwok Wing cases.

49.  As such, I will adopt the individual starting points for each of the offences as listed in Table 2 below.  These starting points are adopted with the eventual overall sentence to be imposed according to the defendant’s culpability in mind.  

50.  Furthermore, despite the sentencing approach adopted by the Court of Appeal in Nones, I find that there is no need to enhance each and every new theft since the overall circumstances of the commission of the offences will be taken into consideration when applying the totality principle.  Therefore, only counts 8 and 9’s sentences are enhanced for repeat offending.

Table 2
Column 1	Column 2	Column 3	Column 4	Column 5	Column 6	Column 7
Count	Transaction period (both dates inclusive)	Amount stolen HK$	Applicable guideline band	Arithmetical Starting point	Adopted Starting point and enhancement for repeat offending (if any)  (in months)	Sentences after plea (in months unless otherwise stated)
1	5.7.2019  - 13.2.2020	430,000	2 to 3 years	26 months	26	17
2	20.7.2019	170,000	Less than 2 years	16 months	16	11
3	5.12.2019 - 6.9.2021	6,866,000	5 to 10 years	79 months	79	53
4	17.7.2017 - 24.6.2021	16,505,891.05	10 years or more	n/a	96	64
5	6.9.2017	13,119.95	Less than 2 years	1 month	1	20 days
6	11.6.2018 - 14.5.2021	362,426.92	2 to 3 years	25 months	25	17
7	3.7.2018	7,800	Less than 2 years	1 month	1	20 days
8	15.4.2020 - 18.6.2021	850,842.20	2 to 3 years	33 months	39 (6 months’ enhancement)	26
9	21.4.2021 - 24.6.2021	1,224,000	3 to 5 years	38 months	44 (6 months’ enhancement)	29

TOTALITY

51.  Having decided on the individual sentences, and having taken a step back, I find that the overall global starting point for the thefts should be 10 years’ (120 months)  imprisonment in the circumstances.

52.  For his full cooperation with the police and his swift and immediate admissions to the Hotel of his thefts, I will grant a reduction of 3 months’ imprisonment, taking the sentence down to 9 years 9 months’imprisonment.

53.  This means that a sentence of 6 years 6 months’ (78 months)  imprisonment after plea.

FINAL TOTAL SENTENCE

54.  To achieve this sentence, I first of all impose each of the individual sentences after plea as listed out in Column 7 of Table 2 above in relation to the 9 counts.  I then order 14 months of the sentence in count 1 be served consecutively to the 64 months sentence in count 4, with the balance and all the sentences of the remaining counts to be served wholly concurrently, resulting in a final total sentence of 6 years 6 months’ imprisonment after plea.