HKSAR v. Lee Sio Hoi

DCCC 738/2019

[2019] HKDC 1651

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 738 OF 2019

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Reasons for Sentence

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1.The defendant in this case, Mr Lee, has pleaded guilty to a total of six offences of theft. He has admitted the facts; I have convicted him.

2.The defendant is a man of clear record.  The thefts are from his own employer, so they involve a breach of trust.  The thefts were committed between February and May of this year, and arise out of the defendant’s position as being the finance manager of a jewellery group.

3.As part of his job as manager, he had the authority to withdraw cash from the safe of the company’s back office and take that to deposit in their retail branches, and also to take cash from the retail branches and deposit it into the safes, and this was up to a limit of $10 million.

4.On six occasions, the defendant took the cash set out in the charges, the first occasion being in mid-February 2019, when over HK$3½ million was taken from the safe for headquarters’ use from the back office.  In mid-March, a further 3.2 million was handed over from the back office for the same purpose.  The defendant was eventually asked to sign a receipt indicating his receipt of that 6.7-odd million.

5.In May, the defendant visited a retail branch of the company and made withdrawals in cash, and they are the withdrawals set out in Charges 3 through to 6, withdrawals of 350,000, 400,000, 200,000 and a further 300,000 on dates in May and early June of this year.

6.Eventually, one employee became suspicious of the withdrawals and the matter was reported to the superiors.

7.Enquiries were made with the defendant on 20th June 2019 and the defendant admitted at that time to a Mr Kwee that he had taken a total of 6.750 million from the back office and a further 1.250 million from what was the Mong Kok branch.  He said he owed debts to financial institutions and friends.  He says that again to me today.  He says he had debts within the mainland of China that he felt compelled to pay off.

8.Defendant lost his job on 21st June 2019, and then on 22nd June he was accompanied by Mr Kwee to report this matter to the Yuen Long Police Station.  The defendant surrendered himself and admitted he had stolen the total of $8 million from the back office, and he admits today that he had taken total cash of around $8 million from his employer.

9.As far as the defendant’s background is concerned, he has a clear record, 52 years old, and was employed as a finance manager of this company prior to his arrest and detention.  I am told he is healthy, single. 

10.A number of letters of support have been written, showing the defendant to be a man of hitherto, as we can see, good character. 

11.The offence, I think, can properly be described as one that is out of character for him, and it is unusual to come across a person at his stage of life involved in such a major offence and, of course, when determining the overall sentence of the case, it is perhaps appropriate to bear in mind the defendant has managed to be a law-abiding member of society for a considerable amount of time, and reflect that, perhaps, in the total overall sentence.

12.As far as the sentences are concerned, for this particular offence, that is, theft from an employer, which involves a breach of trust, there are guideline sentences.  They are broadly stated and based on the amount of money taken in the course of the theft. 

13.I am referred to the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1018.  There are other cases, but this case clearly sets out the normal starting point for sentence in relation to these matters, and the starting point for sentence generally set out in these cases that we are concerned with is from (b) through to (e):  (b) says involving 3 million to 50 million, the sentence will be between 5 to 10 years; involving 1 million to 3 million, 3 to 5 years; and involving 250,000 to 1 million, 2 to 3 years; and involving 250,000 or less, below 2 years.

14.The approach the court should take in these cases is to determine what is the appropriate sentence for each individual charge, pass that sentence, and then adjust the sentences by way of running them concurrently or consecutively to reflect the proper overall total sentence for the overall total offending.

15.There is one particular mitigating factor the defence refers to and that is that the defendant surrendered himself, and that has been seen as an individual mitigating factor in its own right that can lead to a further deduction from sentence, apparently once the normal one-third discount is taken into account.

16.The mitigating factors in this case would be the defendant’s plea of guilty, entitling him to a one-third discount, and then, beyond that, a further discount in the region of 2 to 3 months for the fact that the defendant has surrendered himself.  The act of the defendant’s surrender is set out in the summary of facts, so I can rely upon that to impose the sentences. 

17.I am going to approach the sentences as follows, and my calculation of the initial starting points will be based largely on the amounts of money taken in each individual charge.

18.Dealing with the 1st charge, the amount of money is beyond 3 million, just beyond 3 million, 3.5-odd million.  I will take a starting point at 60 months - that is, 5 years - reduce that by one-third, 40 months, and then take a further 3 months off for the defendant’s surrender, leaving a total of 37 months.

19.In respect of the second offence of 3.2 million, I will adopt the same principles of sentencing in that case, leading to a sentence of 37 months’ imprisonment.

20.As far as the third offence is concerned, I will take a starting point of 36 months’ imprisonment, reduce that to 24 months’ imprisonment for the plea of guilty, and a further 3 months’ reduction to 21 months’ imprisonment. 

21.I shall adopt the same approach in respect of the 4th charge, leading to a sentence of 21 months’ imprisonment.

22.For the 5th charge, I will take a starting point of 21 months’ imprisonment, reduce that to 14 months’ imprisonment for a plea of guilty, a further 3 months’ deduction to 11 months.

23.On the 6th charge, I will take a starting point of 24 months’ imprisonment, reduce to 16 months’ imprisonment for the plea of guilty, and a further 3 months’ deduction leads to a sentence of 13 months’ imprisonment on that charge. 

24.So, to reiterate, the individual sentences will be as follows:  Charge 1, 37 months; Charge 2, 37 months; Charge 3, 21 months; Charge 4, 21 months; Charge 5, 11 months; and Charge 6, 13 months.

25.I have now to determine what the overall total sentence should be for this series of offences committed between February and June of 2019.

26.The overall total figure is one of 8 million, which, as I have observed, counsel could put the starting point beyond the jurisdiction of this court.  I only say “could”, because the court obviously has some discretion in the determination of the starting point within that bracket of 5 to 10 years and the sole determinant will not be just the amount taken in the course of the theft.  I can also bear in mind the defendant’s previous good character and the fact the offences are out of character.

27.Nevertheless, the determination of the starting point must be close to my jurisdictional limit.

28.What I will do is take an overall calculation at 81 months.  After deduction for the defendant’s plea of guilty, that would lead to a sentence of 54 months, and then a further deduction of the 3 months for his surrender would lead to a final sentence of 51 months’ imprisonment. 

29.That will be achieved as follows.  I will order that the sentences on Charges 1 and 2 to run concurrently, the sentences on 3 through to 6 to run concurrently, but 14 months of those sentences to run consecutively to the 1st and 2nd charges.  That should lead to a sentence of 51 months’ imprisonment.

30.If I am not corrected on my calculations, that will be the sentence I will impose.