HKSAR v. Kan Tsui Ying

DCCC 167/2018

[2018] HKDC 865

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 167 OF 2018

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REASONS FOR SENTENCE

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1.This is a case of stealing from employer.

2.An accounting clerk of a jewellery company in Hung Hom, who had access to the company’s safe, had stolen cash of various currencies from the safe an equivalent amount of approximately 1.8 million Hong Kong dollars over a period of 2 months in 2016.  

3.The accounting clerk is the defendant, a 47-year-old woman of previous good character, who pleaded guilty before me to one count of theft.

4.The defendant had been working in the company for 5-6 years before the crime came to light; one of her duties was to keep records of money going in and out the safe and she was given the key to the safe, and the only other person who had the custody of the safe key was the boss, Ms Kan.

5.After confessing to stealing money to a colleague on 25 May 2016, the defendant then came clean with the boss and claimed that she stole in order to help an overseas friend.  

6.In mitigation, the court heard that the defendant fell victim to an online scam. The defendant came to know an Englishman called Addison through Facebook who asked the defendant to give him money so that he could get back his money from a project in Malaysia.

7.Consequently, the defendant opened a bank account to send money to Addison and over a period of several months she had given him more than 4 million – the money came from selling her flat as well as stealing from her employer. Up to now, Addison has not paid back any money to the defendant as he had promised and it turns out this person “Addison” is probably a fraud.

8.The defendant married with a 13-year-old son but the marital relationship began to have problems some years ago with the wife complaining the husband not being caring enough for their son.  With such money matters of Addison coming to light, the husband is now contemplating divorce.

9.The defendant did make some attempts to pay back her employer, but counsel said the repayment plans are simply unrealistic – the defendant agreed to give up all of her salary to the employer leaving nothing for her and her son on top of an initial payment of $150,000 and not surprisingly the defendant defaulted on payments after a couple of months. She had so far repaid about $200,000.

10.The defendant was adjudicated bankrupt in March 2017 and her former employer is one of the named creditors in the order. The court was told that the defendant found a part-time accounting job after her arrest, and about a year later the job became a full-time one.

11.The prosecutor asked for a compensation order, but in view of the bankruptcy order with the former employer being one of the creditors, plus the fact that the defendant does not seem to be a person of means, I decline to make such an order.

12.This is a clear-cut case of breach of trust. The defendant was appointed to a position of trust – an accounting clerk who was allowed to handle cash of the company – her employer must have trusted her implicitly.  The defendant had abused it when she stole the money.

13.The fact that she fell victim to a scam is unfortunate and I feel great sympathy for her, but such matter cannot in any way amount to substantial mitigation.

14.Counsel for the defendant submitted that the stealing was straight-forward without the use of forged documents to cover up her crime and it only lasted for a short period of time - less than 3 months.

15.There are sentencing guidelines for this type of offence – stealing between $1 million and $3 million warrants a term of imprisonment between 3 and 5 years. The defendant stole approximately 1.8 million.

16.Based on the facts of the instant case, and taking everything put forward in mitigation, I take 3 years as starting point and reduce it to 2 years for her timely plea.

17.There being no reason for further reduction in sentence, the defendant is therefore sentenced to 2 years’ imprisonment.