HKSAR v. Yau Chun Keung, Kenneth

DCCC 453/2018

[2018] HKDC 1342

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 453 OF 2018

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

Charges

1.The defendant (“D”) pleads guilty to the following charges:

(1) Theft of $2,662,264.30 from his employer (1^st Charge);

(2) Obtaining property by deception in using his ex-girlfriend’s credit card (2^nd Charge);

(3) Obtaining property by deception in using her credit card (3^rd Charge);

(4) Theft of her mobile phone (4^th Charge).

Facts for 1^st Charge

2.PW1 was the director of Kinetic Global Limited.  D was its accounting officer responsible for handling tax payment matters, among others.  D would give blank cheques for PW1’s signature to make payments from the company’s HSBC account. 

3.Between March and April 2017, PW1 signed 4 blank cheques to be filled out by D for tax payment. 

4.In August 2017, IRD pressed for tax payment.  PW1 checked the bank records and discovered D had used the 4 cheques to make unauthorized payment into another bank account. 

5.In September 2017, D did not return to work and became out of reach.  PW1 reported to the police. 

6.Further enquiries revealed that between 18 November 2016 and 12 September 2017, there were another 120 unauthorised cheques prepared by D drawn from the company’s HSBC bank account.  They all bore PW1’s purported signatures.  D’s girlfriend Ms. Yu was the account payee receiving all such payments.  The cheque books in question were obtained from the bank on behalf of the company but without the company’s consent.

7.Such 124 cheques totaled $2,662,264.30. 

Facts for 2^nd and 3^rd Charges

8.Ms. WONG was D’s ex-girlfriend.  They had been together for two years until these offences took place. 

9.In March 2017, she obtained her American Express credit card with a credit limit of $90,000.  She did not disclose its details to anyone. 

10.On 30 October 2017, although the credit card was in her handbag, she discovered from her transaction record 2 unauthorised purchases, each from the same shop in Taikoo Shing Citiplaza but 47 minutes apart on 18 October 2017 and each a Rolex watch.  One cost $30,300.  The other cost $32,800.  Suspecting that D had taken her credit card to make those purchases, she reported to the police. 

11.The salesman at the shop recognized D as a regular customer for 5 years.  He confirmed that D had made the 2 purchases but no one paid any attention to the credit card being so used.   

Facts for the 4^th Charge

12.Going back in time, on 19 October 2017, she had accompanied D to Hong Kong Sanatorium and Hospital to visit D’s mother.  Before entry, he said he had to return to his car to take something.  She lent him her iPhone 6S (worth $6,388) for contact with her.  D did not return at all.  When she called the phone, it was switched off.

Post-arrest enquiries

13.After arrest and caution, he admitted stealing money from his employer as he had lost money in investment.  Out of greed, he took his ex-girlfriend’s credit card to buy the 2 Rolex watches to resell for about $20,000 altogether, which he lost on stock investment and gambling.  Her iPhone was resold for $2,000, which he also lost on gambling. 

Mitigation

14.D is 55 years of age, of secondary education level.  He has obtained higher diploma in accounting.  He has a clear record.  I am informed that he committed the present offences partly because he was not given salaries for 7 months despite his reporting to the Labour Department.  I do not regard this as effective mitigating factor. 

Sentencing guidelines

15.The Court of Appeal in HKSAR v Cheung Mee-kiu [2006] 4 HKLRD 776, as emended subsequently by HKSAR v Ng Kwok-wing [2008] 4 HKLRD 1017, has laid down the following sentencing guidelines for sentencing a defendant committing a breach of trust:

(1) $15,000,000 up, 10 years up;

(2) $3,000,000 to $15,000,000, 5 to 10 years;

(3) $1,000,000 to $3,000,000, 3 to 5 years;

(4) $250,000 to $1,000,000, 2 to 3 years;

(5) $250,000 or less, up to 2 years.

Sentencing the Defendant

16.D had breached the trust of his employer.  Through 124 transactions in over 10 months, he stole $2,662,264.30 in total.  I take 4 years 6 months as the starting point of the 1^st Charge.   After one-third discount for his guilty plea, the sentence is 3 years. 

17.I take a starting point of 2 years each for the 2^nd and 3^rd Charges.  After one-third discount for his guilty plea, the sentence is 16 months each. 

18.I take a starting point of 6 months for the 4^th Charge.    After one-third discount for his guilty plea, the sentence is 4 months. 

19.I make the following adjustment to come to a total sentence of 3 years 6 months:

(1) 3 years to be served on the 1^st Charge;

(2) 2 months of the 2^nd Charge consecutive to other charges;

(3) 2 months of the 3^rd Charge consecutive to other charges;

(4) 2 months of the 4^th Charge consecutive to other charges.