HKSAR v. Ng Wai Mui, Connie

DCCC 323/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 323 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to five charges, one theft, and four of evasion of liability by deception. 

2.The facts were agreed.  These show that all the offences arise out of the defendant’s employment at a company called TRA Services Limited, and that employment commences on 30 April 2014.     

3.The defendant was employed by TRA Services, and also carried out paperwork and accounting services for Bryant International Limited. 

4.The two companies had three bank accounts on which cheques could be issued with company chop and signature.  The defendant, without authorisation or permission, used chequebooks and company chops and signed cheques for these accounts to withdraw money from these accounts, and also to issue cheques in order to conduct her own trading business in iPhones. 

5.The relevant details of these offences are as follows:  The first one is Charge 2, to which the defendant pleaded guilty.  On 14 November 2014, the defendant failed to report to work.  It was found that the chequebooks and company chops for the three company accounts had gone missing.  It was further found that the defendant had used the chequebooks to issue cheques with false signatures to steal a total of $157,590.60.  There were totally 12 cheques issued on 12 separate occasions between 7 August 2014 and 15 September 2014.  The money has been deposited into the defendant’s account, or taken as cash. 

6.The charges of evasion of liability are Charge 5 to 8. 

7.Charge 5 and 6 details as follows.  In October 2014, the prosecution witness 4 became acquainted with the defendant and ordered iPhone mobile phones from her, incurring total legal liabilities of $1,590,000 and 310,000 renminbi.  No iPhones were, in fact, delivered to PW4, and on 18 November 2014, the defendant agreed to refund totally $1,961,080 to PW4. 

8.The defendant signed a refund agreement, and on 19 and 21 November, issued two cheques to settle the liability.  Those cheques were of $535,500, and $1,858,580.  They were issued on the Bryant International Account.  The cheques were not honoured, as they bore a false signature, and were not authorised. 

9.The 7th charge resulted out of business between the defendant and PW5, and they had become acquainted in July 2014.  From October to November 2014, the defendant, PW5, had dealings in iPhones, whereby the defendant incurred a liability of $1,013,600.  PW5 also introduced PW6 to the defendant, and they have business dealings.  By 7 November, the defendant had outstanding legal liability to PW6 of $36,000.  PW5 and 6 pursued the defendant for money owed to them. 

10.On 22 November 2014, defendant told PW5 that a cheque for $234,000 had been deposited into PW6’s bank account as partial repayment of PW5, and full repayment for PW6.  This cheque was issued by the defendant on the Bryant International Account.  It was not honoured, as it was not authorised and bore a false signature. 

11.In respect of Charge 8, PW7 was introduced to the defendant by the defendant’s husband, and they dealt together in iPhones. By November 2014, the defendant incurred a legal liability to PW7 of $308,450. PW8 also had iPhone dealings with the defendant, as a result of their dealings, the defendant owed PW8 $762,064. 

12.On 23 November 2014, the defendant agreed to repay PW7 $400,650, to PW8 $762,064.  The defendant gave PW7 a cheque for $1,100,000, drawn on the TRA account to meet her liability to PW7 and 8.  The cheque was not honoured, as it was not authorised and bore a false signature. It is common ground that the actual loss exceeds $4 million over 5 months of June 2015 to November 2014. 

13.The defendant is aged 44, she has a clear record.  She is married, with no children.  However, through counsel, I have heard the defendant appears to understand that her marriage may well be over.    

14.The defendant frankly says that she committed the offence out of greed.  She is remorseful.  She has expressed this in a letter to the court.  The defendant has made efforts of restitution, and a total of 165,000 has been paid in restitution to PW7 and 8, although I understand the total sum has, in fact, gone to PW8.  Through counsel, I am told that the defendant is now flat broke, and thus it appears that no further restitution can be made. 

15.All the charges involve, a breach of trust, as they directly result out of the defendant’s use of her employer’s chequebook and company chops.     

16.Charge 2 is most clearly a breach of trust, because it involves the use of chequebooks and company chops to take money directly from the company. 

17.The Charges 5 to 8 of evasion of liability are more indirectly a breach of trust, but I can possibly describe it as the abuse of her position as an employee, but they do amount to a breach of trust in that they involved the misuse of the company cheques and chops that facilitated the offences. 

18.There is an operative guideline for cases involved in breach of trust.  This is HKSAR v Ng Kwok Wing CACC 398/2007, where those guidelines were most recently reviewed. 

19.As far as the overall total criminality in the five charges the defendant has pleaded guilty to, this case falls within the guideline 1(b) involving $3 million to $50 million, where the guideline is between 5 to 10 years’ imprisonment as a starting point. 

20.In this case, I believe the proper approach to sentencing, or the proper course, is to determine the correct overall starting point for the overall criminality, subjected to the appropriate discounts, then pass the appropriate sentence in respect of each charge, and then adjust the total by way of consecutive or concurrent sentences to arrive at an overall appropriate total sentence. 

21.The defendant is a person of clear record and is clearly remorseful.  The guideline is meant to reflect not only the amount of moneys involved, but also other factors such as the defendant’s antecedents and remorse. 

22.Having regard to all these factors, I consider that the appropriate overall starting point for sentence in this case is at the lowest point of the operative guideline, which, in this case, is a figure of 5 years’ imprisonment, or 60 months.  That would be subject to a one-third discount to 40 months.  It is also proper in this case there should be a further discount to reflect the repayment made, although small in the overall amount, it is clearly a sign of remorse and an effort by the defendant, who clearly has financial difficulties.  I will capitalise this as a figure of further discount of 4 months’ imprisonment, bringing a total of 36 months’ imprisonment, or 3 years.

23.Now, in order to reach that total, I will pass sentences as follows:  On Charge 2, I take a starting point of 18 months’ imprisonment, reduce that to 12 months’ imprisonment for a plea of guilty; on Charge 5, a starting point of 24 months’ imprisonment, reduce that to 16 months for a plea of guilty; on Charge 6, a starting point of 36 months, reduced to 24 months for a plea of guilty; on Charge 7, a starting point of 21 months, reduced to 14 months for a plea of guilty; Charge 8, a starting point of 24 months, reduced to 16 months for a plea of guilty; and I shall order that all the sentences in respect of Charges 5 to 8 be served concurrently to each other, but consecutively to the sentence on Charge 2, giving a total of 36 months’ imprisonment.