HKSAR v. Ho Sui Tung

DCCC 10/2020

[2020] HKDC 359

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 10 OF 2020

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of theft, contrary to section 9of the Theft Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by the defendant. In summary while acting as chairman of the incorporated owners of Sun Po Building in Cheung Sha Wan the defendant stole $642,750. 

3.The incorporated owners held three bank accounts including one with the Bank of China (“the Bank of China account”).  All cheques required the signature of the defendant and the signature of either the treasurer, Mr Hung or the secretary, Mr Au.  The defendant was the person solely in charge of the finances of the incorporated owners.

4.Between 26 May 2015 and 8 March 2016 the defendant issued forty cheques from the Bank of China account in the total sum of $642,750.  All the cheques were made payable to the defendant and deposited in the defendant’s own bank account.  The cheques purported to be signed by the secretary.  Mr Au confirmed that he did not sign any of the cheques.  

5.The theft was discovered after Mr Hung was elected chairman in February 2016.  When Mr Hung was the treasurer he had suspected misconduct on the part of the defendant when the defendant delayed settling some of the outgoings for the incorporated owners.  

6.Mr Hung therefore reviewed the bank accounts for the past two years and discovered the Bank of China account contained no funds.  Further investigation revealed that the defendant had transferred the forty cheques to his own personal account. 

7.The defendant left Hong Kong in March 2016.  On 11 April 2019 the defendant was arrested at the Lo Wu border on his return to Hong Kong.

Mitigation

8.In passing sentence, I have carefully considered the oral and written submissions of Mr Lam including that the defendant stole money from the incorporated owners after speculating in the stock market[2].

9.I have read the mitigation letter written by the defendant and his paternal aunt, aged 86, with whom the defendant resides and wishes to take care of.  The defendant’s aunt is in court today to show her support for the defendant. 

10.I take into account the defendant has a clear record and was the chairman of the incorporated owners for sixteen years[3].

Guidelines

11.By stealing the monies of the incorporated owners the defendant breached the trust placed in him by the incorporated owners to handle the finances. 

12.In passing sentence, I have considered the principles laid down in R v Clark[4] as applied inHKSAR v Cheung Mee Kiu[5] as adjusted in HKSAR v Ng Kwok Wing[6]. 

13.The guidelines state the proper starting point after trial is between 2 to 3 years’ imprisonment where the amount stolen was between $250,000 to $1 million. 

14.In determining the sentence the following matters are to be considered: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the theft was perpetrated; (iii) the use to which the money dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect upon fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; and (ix) those matters of mitigation special to himself such as illness[7]. 

15.Taking into account the degree of trust reposed in the defendant who was solely responsible for the finances of the incorporated owners; $642,750 was stolen over a period of ten months; the defendant forged the signature of the secretary; the defendant stole the money after suffering severe financial loss from speculating on the stock market; the defendant’s long service as chairman of the incorporated owners and the clear record of the defendant, I am satisfied the proper starting point after trial is 2 years and 6 months’ imprisonment.

Timely plea of guilty

16.The defendant left Hong Kong in March 2016, the same month he deposited the last cheque in his bank account and only returned to Hong Kong on the 11 April 2019, just over three years later. 

17.Mr Lam explains that the defendant moved to the Mainland in March 2016 because he was frightened and wanted to earn money to repay the incorporated owners. 

18.Mr Lam accepts that this was not a timely plea.   Mr Lam submits that a discount of 25% would be appropriate because the defendant did not abscond after being arrested[8]. In support Mr Lam refers the court to HKSAR v Lo Kam Fai[9] and HKSAR v Chan Yee Lap[10]. I note in HKSAR v Chan Yee Lap the Court of Appeal expressed the view that a 25% discount was extremely lenient.

19.The usual range of discount afforded to a defendant who leaves the jurisdiction is about 20% to 25%[11]. 

20.In HKSAR v Chow Tak-fuk Stock JA observed:[12]

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

21.Similarly, in HKSAR v Sun Yu Hing the defendant left for the Mainland almost immediately after committing a robbery and was only arrested about two years later when he returned from the Mainland[13].  The Court of Appeal in upholding a discount of 20% adopted the approach in HKSAR v Chow Tak-fuk.

22.Whilst the defendant did not flee to the Mainland after arrest he left Hong Kong shortly after the last cheque was transferred to his account and did not return to Hong Kong for three years. 

23.Mr Lam informs the court that during those three years the defendant traded in tea leaves earning limited income[14].  Apart from consenting that his bail money in the sum of $10,000 be paid to the incorporated owners the defendant is unable to make any further restitution[15].

24.In all the circumstances I am satisfied the appropriate discount is one of 6 months’ imprisonment which reduces the sentence to 2 years’ imprisonment, which is 20% discount from the starting point of 2 years and 6 months’ imprisonment. 

Restitution

25.From time to time the defendant transferred money from his own account to the Bank of China account[16].  Between June 2015 and January 2016 the defendant transferred a total of $286,106. 

26.The prosecution confirm this sum was transferred to the Bank of China account and is to be treated as repayment.  Mr Iu says that the incorporated owners were not aware of these repayments at the time but looking back believe they were made to settle the liabilities of the incorporated owners.    

27.Mr Lam submits that the defendant is therefore entitled to a discount of more than 40%.  This was premised on the basis the defendant’s plea was a timely plea and he was entitled to a one-third discount.  The defendant’s plea was not however a timely plea of guilty. 

28.Although the defendant repaid $286,106 before the defendant was arrested, repayment is to be viewed in the context that the repayments were made at the same time the defendant was stealing money from the incorporated owners. 

29.As noted already the defendant consents to his bail money in the sum of $10,000 being paid to the incorporated owners.

30.In the circumstances I am satisfied a further discount of 2 months’ imprisonment is appropriate reducing the sentence to 1 year and 10 months’ imprisonment and making an overall discount of just less than 27%[17].

Sentence

31.The defendant is convicted and sentenced to 1 year and 10 months’ imprisonment and ordered to pay $10,000 compensation to the incorporated owners, payment to be made from the defendant’s bail money.