HKSAR v. Lam Hiu Kwan

DCCC 401/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 401 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Theft". He has stolen an aggregate sum of approximately $1.9 million from his employer over a period of almost 4 years.

Summary of Facts

2.From 2006 to 31 October 2012, the defendant was the accounting manager of Western Digital Company Limited ("the Company").  Madam CHAN (PW1) took up the same post in November 2012.

3.PW1 discovered that the Company's financial record was not in order and that there were many dubious cheques drawn on the Company's bank account.  She thus made enquiries with HSBC regarding those cheques.  According to the records provided by HSBC, from 2008 to 2012, a total of 195 cheques were issued to the defendant as payee.

4.To issue a cheque drawn on the Company's bank account, only the signature of the accounting manager and the company chop were required.  During the offence period, the defendant was the person authorized to sign cheques and in possession of the company chop.

5.Of the 195 cheques issued to the defendant, 184 were deposited into bank accounts belonging to him; and the remaining 11, unknown bank accounts.  The total sum involved in all 195 cheques was $1,902,042.18.

6.The defendant was arrested by the Police at his home on 17 November 2014.  Under caution, he admitted having used the Company's cheque book to issue cheques to himself to obtain money for personal use.  In his video-recorded interview, the defendant admitted, inter alia, that he was the only person who could issue cheques on behalf of the Company.  He was also the only person who had access to the Company's cheque book.  There was no one in the Company to approve the cheques issued by him, so long as the amount was under US$5,000.  The 195 cheques were shown to the defendant.  He confirmed having issued those cheques to himself and that they were signed by him.

Mitigation & Sentence

7.The defendant is now 37.  He has 1 conviction record (dated July 2006) which involves 24 offences of "Theft"; he was sentenced to 120 hours of Community Service.  Defence lawyer Mr. WONG informed me that the defendant was educated in Australia and received a Bachelor of Commerce degree.  He is married with a stepson (F.1 student) and a daughter (aged 4).

8.In mitigation, Mr. WONG submitted that the defendant committed that present offence NOT because of any vice habits; he simply wanted to provide a comfortable life to his family.  Mr. WONG informed me that the defendant met his wife (who has a son from her previous marriage) in 2006.  They began to live together in 2008 and later they had a daughter.  Unfortunately, their daughter suffers from a heart problem and had to undergo surgery as a toddler.

9.Mr. WONG submitted that the defendant was not earning much but, out of love and caring for his family, he foolishly tried to maintain a standard of living which he was unable to sustain.  As a result, credit card debts began to snowball, which led to his stealing from the Company.  A letter written by the defendant's wife was placed before me; its contents are duly noted.

10.Mr. WONG further submitted that before the Company reported the case to the Police, the defendant had attended interviews with the Company's lawyer, in which he made full and frank disclosure of all the events.  The defendant's wife is a flight attendant earning about $20,000 per month.  Mr. WONG submitted that without the defendant, her income would not be able to meet their household expenses and her frequent absence from home makes it difficult for her to look after the children.

11.Finally, Mr. WONG submitted that although the defendant is unable to make any restitution, the Company's operation was not seriously affected by the monetary loss.

12.In my view, the Company is the most innocent party.  It suffered a substantial monetary loss and the defendant does not have the means to make any restitution.

13.This case is a classic Barrick type of breach of trust situation.  The defendant stole money from his employer.  I have no doubt that the defendant is a responsible husband and caring father as described by his wife.  I also understand that he just wanted to offer his family a comfortable life.  It is, however, not an excuse for committing the present offence.  The defendant should not have offered his family a lifestyle which he could not afford by stealing from his employer; it simply does not make sense.

14.According to HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017, if the amount stolen by an employee is $1 million to $3 million, the sentence should be 3 to 5 years' imprisonment.

15.The defendant has stolen roughly $1.9 million over a period of almost 4 years.  I consider a starting point of 45 months' imprisonment to be appropriate.  The defendant is not a fresh offender; I have already displayed leniency by not increasing the starting point.  With the guilty plea, the sentence is reduced to 30 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 30 months' imprisonment.