HKSAR v. Leung Ting Lap, Marianne

DCCC 698/2020

[2021] HKDC 235

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 698 OF 2020

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REASONS FOR SENTENCE

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

2.Full details of the offences are set out in the summary of facts admitted by the defendant today. 

3.In summary in 2006 the defendant was employed by Wight Development Co., Limited, which was part of an English tutorial group called “Jolly Kingdom”. 

4.In October 2011 the defendant became the manager of the Yuen Long branch of the group.  The defendant was responsible for managing the business and finance of the branch, including the receipt and safe keeping of school fees.  The defendant was the only person who had a key to the safe. 

5.In July 2012 the defendant also became the manager of the Fanling branch and was free to decide how much time to spend in each branch. 

6.The defendant was required to compile Excel spreadsheets recording the balance of the money in the safe of each branch.

7.On 20 May 2017 Mr Cheng, the chief financial officer of the group, found a discrepancy in the accounts of the group.  Auditors were retained to audit the accounts. 

8.In June 2017 before the audit started, the defendant called her senior Ms He telling her that the balance sheets did not reflect the actual money; the audit would reveal that money was missing and that she had used the missing money for repaying her debts.  

9.On 5 June 2017 the group discovered that $850,000 was missing from the Yuen Long branch (charge 1) and $250,000 was missing from the Fanling branch (charge 2).

10.On 8 June 2017 the defendant signed two agreements stating that she misappropriated the missing money for her personal use and a timetable for repayment.  The defendant repaid $210,000 but defaulted further repayment on 11 July 2017. 

11.The defendant was dismissed and the case reported to the police.  Under caution and in a video recorded interview the defendant admitted, inter alia, that out of greed she stole from the tuition fees and that she had spent all the money. 

Mitigation

12.In passing sentence, I have carefully considered the oral and written submissions of Mr Kan, including that the defendant, aged 50, is married with three children and until September 2020 had been in employment since her dismissal[2]. 

13.Mr Kan says the defendant committed the offences because she was in debt and had many expenses to pay in bringing up the family[3]. 

Guidelines

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

15.The guidelines state the proper starting point after trial where the amount stolen is between $250,000 and $1 million is 2-3 years’ imprisonment and where the amount stolen is between $1 million and 3 million is 3-5 years’ imprisonment.

16.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; (viii) the offender’s own history and (ix) those matters of mitigation special to the offender such as illness; being placed under great strain or where there has been a long delay[7]. 

17.Taking into account that the defendant was directly responsible for handling the tuition fees and that the money was stolen over a period of around five years, I am satisfied the proper starting point for charge 1 is 2 years and 9 months’ imprisonment and for charge 2 is 2 years’ imprisonment. 

18.Giving the defendant full credit for her pleas of guilty reduces the sentence on charge 1 to 1 year and 10 months’ imprisonment and on charge 2 to 1 year and 4 months’ imprisonment.  

Mitigating factors

19.Mr Kan submits that a 50% discount from the starting point is appropriate by reason of the restitution made by the defendant and the delay in prosecuting the defendant[8].  In support of a 50% discount Mr Kan refers the court to HKSAR v Chan Yuk Kwan[9].

Restitution

20.In HKSAR v Chan Yuk Kwan, a credit card fraud case, the loss to the bank was $148,000 of which the applicant paid back $91,453 in addition to a sum of $5,500 seized on arrest.  The applicant had therefore repaid about 66% leaving a loss by the banks of $51,047. 

21.The defendant whilst repaying more, namely $210,000, this represents just less than 20% of the monies stolen by the defendant leaving a balance owed to her employer of $890,000.  

22.Taking into account the defendant repaid $210,000 before she was dismissed, I reduce the sentence on charge 1 by 2 months to 1 year and 8 months’ imprisonment.

Delay

23.Mr Kan asks the court to take into account the time elapsed from the arrest of the defendant on 28 November 2017 to when the defendant was charged thirty-two months later on 30 July 2020[10].

24.Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[11].

25.The defendant was arrested on 28 November 2017 and charged on 30 July 2020 over two and half years later.  Mr Lo has submitted to court a chronology from which can be seen that there was a long delay between November 2018 and June 2020 pending legal advice from the Department of Justice.

26.Mr Lo, having consulted with the Department of Justice, fairly concedes that the Department of Justice could have dealt with the matter more expeditiously. 

27.Notwithstanding that during this delay the defendant has for most of the time been in gainful employment she is unable to make any further restitution.  In the circumstances I reduce the sentence on each charge by 2 months to 1 year and 6 months’ imprisonment on charge 1 and 1 year and 2 months’ imprisonment on charge 2.

Totality

28.The total sentence must reflect the total amount stolen which was $1.1 million; the defendant repaid $210,000 and the delay in prosecution.  I am satisfied a total sentence of 1 year and 8 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[12].  

Sentence

29.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 6 months’ imprisonment; and

Charge 2 - 1 year and 2 months’ imprisonment with 2 months consecutive and 12 months concurrent to charge 1.

The total sentence to be served by the defendant is 1 year and 8 months’ imprisonment.