HKSAR v. Lau Chai Wah

DCCC 849/2018

[2019] HKDC 1493

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 849 OF 2018

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REASONS FOR SENTENCE

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Charges

1.The defendant pleads not guilty to Charges 1 to 17.  Charge 1 is using a false instrument.  Charges 2 to 4 are fraud.  Charges 5 to 17 are theft.

2.After trial, the defendant has no case to answer on Charges 1 and 2. She is later further acquitted of Charges 3 and 4 but convicted of Charges 5 to 17.

Facts on Charges 5 to 17

3.Defendant started working in a secondary school in 2010.  In 2012, she was promoted to the position of administration officer.  She was the person in charge of the general office in the school and also the account clerk of the school.

4.The school would collect money from students for services and activities.  The teachers would hand over the collected sums to the staff in the general office.

5.In the few months between late 2015 and early 2016, the defendant received directly or indirectly the following 13 sums of money collected from students by the teachers.  The total amount was $318,971.80.

6.The school required the staff, including the defendant, to put the monies into the school’s bank accounts as soon as practicable.  The defendant did not do that with the 13 sums.  Instead, she disposed of them for her own purpose.  Nonetheless, she wrote out 11 cheques corresponding to the 13 sums she had appropriated.  One cheque contained the three sums related to Charges 9, 15 and 16.  The other 10 cheques respectively covered the sums particularised in Charges 5, 6, 7, 8, 10, 11, 12, 13, 14 and 17.

7.In mid-2016, the school suspected the defendant of some misconduct.  The defendant subsequently resigned from her job on 13 June 2016.

8.The school audited the 2015/2016 account in late 2016.  It was found that over $300,000 were missing.

9.In February 2017, a box belonging to the defendant was found in the school.  It contained 11 cheques she had written out, with attached documents which explained what the cheques were for.

10.Defendant was arrested by the ICAC in late February 2017.  Under caution, she remained silent.

11.Although the defendant intended to repay the school the 13 sums she had stolen from the school, she never gave any of those 11 cheques to the school or informed the school of her intention to repay the monies she had appropriated. Defendant never made relevant deposits into her bank accounts to facilitate payment of the 11 cheque sums individually or wholly.

Record

12.Defendant is now aged 54.  She has no previous conviction.

Mitigation

13.Defence counsel says the defendant was born in Hong Kong.  She had worked hard and also endeavoured to advance herself in learning.  She got a degree in 2012.

14.The defendant was married in 1991.  She now lives with her retired husband and her daughter.

15.Counsel says the defendant has some health problems, including diabetes, but she is basically healthy.

16.Counsel says the defendant has been enthusiastic in doing voluntary work, including helping out in sport events and offering assistance to underprivileged children.

17.Counsel points out the stolen sums ranged from a few thousand dollars to a few ten thousand dollars.  The total amount was $318,971.80.

18.Counsel says the 13 offences were not committed by the defendant with any sophisticated means.  She apparently committed those thefts out of stupidity.  Counsel points out that if the defendant did not leave the 11 cheques and the attached documents behind in the school, she probably would not get caught.

19.Counsel mentions two cases: CACC 379/2008 HKSAR v Lee Lai Kit Kitty and CACC 375/2016 HKSAR v Chan Oi Ki.

20.The defendant in CACC 375/2016 got a very lenient sentence against the special facts of that case.

21.In the other case, CACC 379/2008, the court referred to the sentencing principles enunciated in the English case, R v Barrick (1985) 81 Cr App R 78.  The court also had regard to the sentencing guidelines laid down in the local cases Cheung Mee Kiu CACC 99/2006 and Ng Kwok Wing CACC 398/2007.

22.Counsel says the total stolen amount in the present case is about $318,000.  The overall starting point for the 13 charges should be around 2 years’ imprisonment.

23.Counsel says the defendant has been under stress since June 2016, when she was first interviewed by the school management.  Counsel asks the court to consider granting some discount to the defendant for the stress she has been suffering since then.  However, counsel makes it clear that he is not complaining about any delay of investigation or proceedings.

Sentence

24.This is a breach of trust case.  The defendant had worked in the school since 2010.  She had been the account clerk of the school since September 2012 until she resigned from her job in June 2016 due to some alleged misconduct.

25.The 11 cheques relating to Charges 5 to 17 were marked of dates between December 2015 and March 2016.  During those few months, the defendant appropriated for her own purpose 13 sums of money that should have been deposited into the school’s bank accounts.  The total amount was $318,971.80.

26.The defendant intended to repay the 13 sums to the school after she had appropriated them.  That was why she wrote out the 11 cheques to be deposited at such time as she felt appropriate.  Nonetheless, her 13 thievish acts were completed as soon as she disposed of the 13 sums of money as her own property regardless of the school’s rights.

27.The defendant never gave any of those 11 cheques to the school or informed the school of her intention to repay the sums.  She never put the 11 cheque amounts, individually or wholly, into her bank accounts to facilitate repayment.

28.The school lost the 13 sums of money totalling $318,971.80.  No restitution has been offered or made by the defendant.

29.The Court of Appeal has laid down sentencing guidelines in breach of trust cases.  (See Cheung Mee Kiu, CACC 99/2006, and Ng Kwok Wing, CACC 398/2007.)

30.According to the guidelines, when the stolen amount is below $250,000, the starting point would be less than 2 years’ imprisonment.  Where the stolen amount is between $250,000 and $1 million, the starting point would be in the range of 2 and 3 years’ imprisonment.

31.The defendant had a clear record previously.  I accept she committed the 13 thievish acts without resorting to sophisticated means.  There was no need indeed.  I also bear in mind that the defendant originally intended to repay the school, though she never did.

32.After taking into consideration of the facts and counsel’s mitigation, I adopt the following starting point for Charges 5 to 17:-

(1) Charge 5, the stolen amount is $41,250. The starting point is 6 months’ imprisonment;

(2) Charge 6, the stolen amount is $15,846.80. The starting point is 3 months’ imprisonment;

(3) Charge 7, the stolen amount is $61,960. The starting point is 6 months’ imprisonment;

(4) Charge 8, the stolen amount is $11,755. The starting point is 3 months’ imprisonment;

(5) Charge 9, the stolen amount is $7,560. The starting point is 3 months’ imprisonment;

(6) Charge 10, the stolen amount is $3,900. The starting point is 3 months’ imprisonment;

(7) Charge 11, the stolen amount is $8,800. The starting point is 3 months’ imprisonment;

(8) Charge 12, the stolen amount is $97,500. The starting point is 12 months’ imprisonment;

(9) Charge 13, the stolen amount is $41,000. The starting point is 6 months’ imprisonment;

(10) Charge 14, the stolen amount is $8,800. The starting point is 3 months’ imprisonment.

(11) Charge 15, the stolen amount is $2,000. The starting point is 3 months’ imprisonment;

(12) Charge 16, the stolen amount is $9,400. The starting point is 3 months’ imprisonment.

(13) Charge 17, the stolen amount is $9,200. The starting point is 3 months’ imprisonment.

33.The total stolen amount is $318,971.80.  The overall starting point for the 13 charges should be one of 2 years’ imprisonment, ie 24 months’ imprisonment.

34.Defence counsel asks the court to consider lowering the appropriate starting point because the defendant has been in stress for this case since the school management interviewed her in June 2016.

35.There is no reliable evidence of the defendant being in stress for long periods due to this case.  Even if she had ever felt stressed, it is her own making.  She breached the law and she worried about the consequence while denying her guilt to Charges 5 to 17 all the way.  There is no delay of the due process of justice.  No arbitrary discount should be granted for the unsubstantiated stress claim.

36.I order 1 month’s imprisonment of each of the terms imposed in Charges 5 to 11 and Charges 13 to 17 to run consecutively to one another and also to run consecutively to the 12 months’ imprisonment in Charge 12.  The total sentence for Charges 5 to 17, after trial, is therefore 24 months’ imprisonment.