HKSAR v. Chan Yuen Ching

DCCC 996/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 996 OF 2016

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Reasons for Sentence

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1.Well, the defendant has pleaded guilty to three offences of theft this morning.

2.The facts which she has admitted show the thefts occurred during the course of her employment with a company called Club Cyclone Runner Limited, and she was recruited as the secretary of the company in 2008 and worked there until her dismissal in 2015.  She was the only full-time staff of that company, dealing with all the clerical work, reception and accounting issues of the company.  She handled all the income and expenses of the company as well.  She was in possession of the online passwords of the bank accounts of the company.  She was paid around about $15,000 per month for these duties.

3.What is established is that new students of the company had to complete what is called a course application card, and there was also a table which was described as the “cash/cheque received” table which was to record the payments made by the students.  The defendant had been instructed how to complete both the card and the table, and she was responsible for handling and completing the cards and the tables throughout all material times. The defendant was then under a duty to deposit the tuition fees into the company’s account with the Standard Chartered Bank.

4.In round about February 2015, it was the company’s decision to dismiss the defendant, and a new person was recruited as the secretary of the company.  And during the handover period, it was discovered that there were discrepancies and course payments had gone missing. It was found that fees submitted by students for courses were not documented by the defendant and, in particular, two students had been instructed to deposit their tuition fees directly to a personal account of the defendant, and this had not been recorded. 

5.As a result of this and the defendant’s dismissal in February 2015, a more thoroughgoing check was conducted on the cards and the tables and the bank records.  It was found there were problematic transactions involving a total of 403 students between 2011 and 2015, that the defendant had not properly recorded the transactions in the table, and it was suspected that she had stolen money belonging to the company.

6.The comparison of the cards and the tables found that the total amount of money stolen by the defendant was a total of $1,335,763, and of that, two particular transactions, which are separately charged as Charges 2 and 3, were found to be in respect of one student, a $16,000 course fee to the company.  The cheque for that had been deposited to the defendant’s personal account, and another $33,000 course fee had again been deposited.  The cheque had been deposited into the defendant’s personal account.

7.After those figures were deducted, it was found the defendant had stolen cash firstly of $1,286,763, and that is the general deficiency between 1 January 2011 and 28 February 2015, and it is the 1st charge.

The Cheque for $16,000 Forming the 2nd Charge and the Cheque for $33,000 Forming the 3rd Charge

8.The defendant admitted in the course of recorded interviews that she had stolen the money from the company.  She had started stealing money from the company since 2011 because of her financial difficulties.  She said she had used the following methods to steal.  She had received cash from students and failed to record the amounts in the table so she could keep the cash for herself.  She received cheques from companies but recorded them as tuition payments from students so she could keep the tuition fees paid by the students in cash, and she had used her personal bank account for students to pay tuition fees to her account and had failed to transfer the money to the company.

9.The majority of the money was stolen by the first method, and the second method had been used on a couple of occasions. She said all the stolen moneys had been spent.  She made further admissions in respect of the two specific cheques that are Charges 2 and 3.  Those form the basis of the defendant’s admissions and, clearly, the facts support the conviction on all three charges.

10.As far as the defendant’s antecedent background is concerned, she has one previous conviction which is -- I think I can describe it as historic.  It dates back to 1989 when she was placed on probation for theft.  It is a sufficient antiquity to be not relevant to consideration for sentencing at this stage.

11.Defendant is 58 years old.  She was educated up to what is described as Form 5 level in Hong Kong, and we know she was working as a clerk with a salary of what appears between thirteen and fifteen thousand dollars per month.  She is a widow herself, and she has a 20-year-old son.  Prior to going into custody, she resided with her own mother, who was 89 years old, and her son.

12.As far as mitigation is concerned, I found out, have been told that her husband unfortunately died in 2004 and her father in 2009, and she has resided with her mother who is aged 89 and her son aged 20. He is a student. 

13.She gave details of her salary and her work. She had what was a comparatively low salary for the amount of hours that she was required to work.  She worked lengthy hours from 10 in the morning till 9 in the evening, including Saturdays and sometimes on Sundays when there were things such as vouchers.  She said all the money taken had been spent on her family’s education and her mother’s medical expenses.

14.I am told the defendant is unable to make any restitution.  She has become and became involved since 2014 with a gentleman in Malaysia and as a result of his urgings sent him quite large amounts of money, up to US$200,000, and so she has to a certain extent it would appear has been a victim of being duped herself in respect of that, but in any event, she is not in a position to make any restitution.

15.As far as sentence is concerned, these offences have to be regarded as breach-of-trust offences because she has stolen the money and the choses in action from her employer, and they are offences committed over quite a lengthy period of time from 2011 to 2015 and are systematic in their taking of the company’s property. 

16.The defendant’s mitigation is her clear record subject to the one minor offence committed back in 89 and her claim that the money was largely spent to make up for her low salary and care for her family.

17.As far as the guideline sentence is concerned, the Court of Appeal case of Ng Kwok Wing is operative in these cases, and we can see there that the sentencing range for a breach of trust involving 1 million to $3 million is between 3 to 5 years.  That would put certainly the 1st charge and the overall amount of money at the lower end of that range.  The total amount of moneys that the defendant admits that she has taken from the company is just over $1.3 million.  So, as I said, it puts it towards the lower end of that range.

18.Having regard to the defendant’s plea of guilty, her remorse, her relatively clear background, I consider that an overall sentence should be at the lowest point on that guideline.  The defendant is entitled of course to a one-third discount. 

19.What I shall do is impose sentence as follows. On the 1st charge, I will take a starting point of 3 years’ imprisonment and reduce that to 2 years’ imprisonment for her plea of guilty.  On the 2nd and 3rd charges, I will take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.  Having regard to the overall totality, I shall simply order that all sentences be served concurrently, a total of 2 years’ imprisonment.