HKSAR v. Tsui Lok Yin

DCCC 68/2019

[2020] HKDC 1231

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 68 OF 2019

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REASONS FOR SENTENCE

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1.Defendant was convicted of a charge of Theft after trial.

2.Facts of the case was set out in the verdict and this court would not repeat it here, save that it is a case of the defendant, the only moneychanger manning the money-changing shop at the material times, stealing the sum of HK$290,000, US$100 and €100 from her employer when she went off-duty on 28 December 2017.  She returned all monies to the shop the next morning. 

Criminal record

3.Defendant has a clear record.

Mitigation

4.Defendant is aged 28. 

5.She received education up to secondary school level. 

6.She used to be a woman of clear record before the incident. 

7.She resides with her parents and her younger brother.  Her father runs a grocery shop and her mother is a housewife. 

8.She is a waitress earning $550 per day.  After the incident, she has also previously worked for PCCW.  She contributes monthly 3,000 to 4,000 dollars per month to her family.

9.Defence counsel submitted that the defendant did not need the money for herself but rather she has a friend who is in desperate need of money.  Out of misguided loyalty to her friend, she committed the offence.

10.It was also said that once the defendant took the money back home, she realised that it was wrong and she decided to return the money, which she did the next morning.

11.Defence counsel admitted that this is a case involving breach of trust and that, unless there are exceptional circumstances, the norm sentence is one of custodial sentence.

12.This court was referred to the cases of HKSAR v Yeung Kwun Kuen, CACC 475/2012 and CACC 476/2012 and HKSAR v Ng Kwok Wing and another, CACC 398/2007.  It was submitted that since the total amount of monies stolen in this case are approximately $300,000, the sentence to be imposed on the defendant should fall at the lower end of the band of 2 to 3 years.

13.It was pointed out to this court that the defendant has a supportive family and that, once the case was made known to the family, the family had been supporting the defendant.  It was also said that the defendant does not have vice habits such as gambling or drugs or mixing with dubious peers.

14.It was also said that the defendant had actually been working for eight years in this money exchange trade.  The present incident was one and the only one incident during her working for the money exchange trade.

15.It was also said that the defendant had only kept the money for about 12 hours after the incident and there was a lack of careful planning in commission of the offence, since the defendant should have known that most of the shop area was covered by the CCTV cameras.

16.It was also said that, had the defendant returned earlier the next morning to return the money to the shop, the incident would not be discovered by the colleague who went to the shop on duty.

17.The case of HKSAR v Chiu Peng, CACC 287/2001, was also cited.

18.Defence counsel submitted that restitution in this case was made by the defendant before the colleague discovered what she did the night before.

19.Defence counsel asked this court to consider the sentencing option for the purpose of rehabilitation to the defendant as a first offender and also to consider the suspended sentence or community service order. 

20.It was also said that the present case has caused immense stress and fear to the defendant and her parents.

Discussion

21.This court has carefully considered the submissions by defence counsel as well as the authorities cited.  This court does not find any exceptional circumstances in this case which justifies departures from the norm of imposing a custodial sentence in cases of this sort. 

22.Most of the circumstances of the defendant in the case of Yeung Kwun Kuen listed in paragraph 6 of that judgment are absent in our present case.

23.Theft involving breach of trust is a serious matter and all offenders, in the absence of exceptional circumstances, must be deterred even for a fresh offender.

24.Immediate custodial sentence is the only appropriate sentence in this case. 

25.Following the guideline in the case of Ng Kwok Wing and considering the amount of monies involved, the appropriate sentencing starting point is 2 years’ imprisonment.

26.Defendant is convicted after trial.  Her remorse, even considering that she had returned the monies after 12 hours, must be limited[1].

27.Further, had the defendant decided to return the monies the night before and had she been really upset and concerned that the monies be returned without being noticed, she should not have returned the monies so close to the opening hours of the shop the next day.

28.In fact, during trial, it was her evidence that she only came to read the Pol 153 or the statement given by her to the police long after she was given the chance.  Despite she knew her right to have legal representation and even accepting that she thought there might be a chance that the case would not be prosecuted, she had chosen not to engage a lawyer when she was requested to attend police station while she was on bail.  This shows her attitude towards the commission of this offence.

29.The fact that the defendant had returned the monies to the employer 12 hours after the offence is of course a valid mitigating factor and, for this reason, the sentence is discounted by 5 months.

30.Defendant also used to be a person of clear record and, for this reason, the court is willing to further discount the sentence by 2 months.

31.The defendant is therefore sentenced to 17 months’ imprisonment.