HKSAR v. Kam Hip Shing

DCCC 696/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 696 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to 17 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The defendant, in 2009, started to work as an accounts clerk for Jadespring Management Limited, who was an affiliated company of Jadespring Limited.  He was promoted to be accountant for both of these companies in 2012.  He remained in this post until 31 January 2015.  He was responsible for bookkeeping and accounting for both companies.  As a result, he had in his possession and under his control chequebooks for the companies’ accounts.

3.Both companies had accounts with Cathay Bank. Jadespring Limited had one current account, and that account chequebook only required one signatory, a Miss Chan.  Jadespring Management Limited also had one account.  Its chequebook account required two signatories, a Miss Ki and a Miss Fok.  According to the defendant, Miss Fok would pre-sign a number of cheques in advance, and he would only need to seek out Miss Ki for her signature.

4.Between 30 April 2013 and 26 January 2015, the defendant stole from both of these companies a total of $5,410,676.92.  He forged 14 cheques of Jadespring Limited.  He forged Miss Chan’s signature.  Those 14 cheques total $5,250,912.60.  He also, during that time, forged three cheques of Jadespring Management Limited, forging Miss Ki’s signature.  Those three cheques total $159,764.32.

5.The payee of all those 17 cheques was the defendant.  Almost all of those cheques were deposited into two of the defendant’s personal accounts.

6.When the theft of this amount was discovered by another accountant, the defendant was confronted.  He admitted to his employers that he had forged signatures on all of the cheques and stolen that amount of money.  He made a confession in black and white on paper.  Not long after, he requested the victim companies and his employers give him time to repay the money.  After several months, when clearly there was no restitution, the police were informed.

7.The defendant was arrested on 22 August 2015.  Under caution, he made a full admission to the police.  He admitted forging signatures on cheques and banking those cheques.  He admitted that he stole about $5 million from his employers.  He explained that he used that money he stole to repay personal debts and gamble in Macau.

8.In mitigation I have heard the defendant is a 52‑year‑old man now.  He has an accounting qualification.  He was married and now has two teenage children who are still students.  That marriage fell apart in about 2010, which was about the time he started to gamble.  His divorce was finalised after his arrest in May 2016.

9.Until these offences, the defendant was a man with a clear record.

10.Mr Kwok has said all he can say on behalf of the defendant in mitigation, and I have received written submissions.  In submission, the defendant’s background is set out, as is his reasons for committing these offences.  Not only did he get into debt because of failed businesses, but it led to a gambling addiction.  The defendant attempted to repay his debts by gambling, which never ends well.  In fact, the defendant, as he stole from the victims, would gamble with the money in an attempt to repay the money that he had stolen.  This shows a serious gambling addiction.

11.The defendant has written a letter to court.  He frankly realises that he has ruined his life and lost his career.  Even worse, he has lost his family, all because of his gambling addiction.  He is entering middle age with nothing, when he had so much.  He expresses his remorse.

12.The defendant’s best mitigation is his plea of guilty.  He was always going to get caught eventually.  He deposited this money he stole into his own accounts.  He was always going to get caught.  Like most gamblers, he thought he would recoup his losses by gambling more, and that is the beginning of the downward spiral into oblivion.

13.The defendant should, whilst serving his sentence, seek counselling for this addiction.  An addiction is a disease.  He must seek treatment before he can help others with the same addiction, as he professes he will do in his mitigation letter.

14.There are sentencing guidelines for cases where there has been a breach of trust.  Mr Kwok has referred me to HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 778, which was tweaked by HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  The Court of Appeal is of the view that where between $3 million and $15 million is stolen by a defendant, a starting point of between 5 to 10 years’ imprisonment would be appropriate.

15.Mathematically speaking, in this case, a 5‑year 6‑month sentence starting point is appropriate.

16.Defendant, please stand up.  In coming to a sentence, I take into account that a huge amount of money was stolen from the victims, and none of it has been repaid.  No restitution has been made or is likely to be made.  I also take into account everything I have heard in mitigation, the defendant’s plea today, and his previous clear record.  I take into account the defendant’s background and the history behind his becoming addicted to gambling.

17.Lastly, I take into account the total amount stolen in the 17 charges took place over a period of time, a period of 1 year and 9 months.  It makes sense, in such a case, to take a global approach.

18.Having considered the total amount stolen and the guidelines of the Court of Appeal, and having heard mitigation, I will take a starting point of 5 years and 3 months.

19.The defendant has pleaded guilty and is entitled to a discount of one-third.

20.Therefore, the overall sentence will be one of 3 years and 6 months.

21.This is how I intend to come to this sentence, bearing in mind there are 17 charges.  These charges span between 2013 to 2015.

22.Charges 1 to 7 were committed in 2013.  For those seven charges I am going to take a starting point of 4½ years.  Once that is reduced for the defendant’s plea, for Charges 1 to 7, the defendant will serve a 3-year term of imprisonment.

23.Charges 8 to 14 were committed in 2014.  I take a 5‑year starting point.  For the defendant’s plea, that is reduced to 3 years and 4 months.  For Charges 8 to 14, the defendant will serve a 3-year and 4-month term of imprisonment.

24.Charges 15 to 17 were committed in 2015.  I take a starting point of 5 years and 3 months.  For the defendant’s plea, that is reduced to 3 years and 6 months.  For Charges 15 to 17, I impose a sentence of 3 years and 6 months.

25.All 17 charges will be served concurrently.  The defendant is sentenced to a total of 3 years and 6 months’ sentence.  Do you understand that sentence?

DEFENDANT: Understand.