In the Magistrates’ Court, the defendant pleaded guilty to seven charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210, and is committed to this court for sentence.
Before me, he confirms his plea of guilty and his agreement to the Summary of Facts.
Briefed Facts
It is a case of gross breach of trust. The defendant was the Chief Financial Officer of Ajisen (China) Holdings Limited and one of his duties was to prepare payment cheques to nine officers of the senior management of the company, including himself, for their remuneration. The defendant would present those payment cheques together with remuneration tables for the approval and signature of PW1.
Simply put, for a period of nearly seven years between 19 January 2012 and 29 October 2018, the defendant had deceived PW1 into signing a total of 180 cheques for a total amount of $26,520,342.50, which the defendant said were for MPF contribution payable by the company. PW1 signed those cheques without further questioning the defendant.
Eventually, on 4 December 2018, the defendant confessed to PW1 about his wrongdoings. Upon later investigation, it was found that the aforesaid 180 payments cheques which the defendant obtained by deception, were all deposited into the defendant’s four personal bank accounts. Out of those monies, only HK$665,053 formed part of the defendant’s remuneration. Therefore, the net total amount misappropriated by the defendant was $25,865,289.50.
The defendant was summarily dismissed by the company on 14 December 2018 and was arrested on the 2 April 2019. On 16 December 2019, he repaid $29,049,851.04 to the company, being the funds which he has misappropriated together with interest, as well as the company’s legal and audit fees arising from this matter.
Antecedents
The defendant is now aged 46. He graduated from Hong Kong Polytechnic University and is a qualified accountant by profession. He is married with one son and one daughter. He has a clear record.
Mitigation
Ms Hung, counsel for the defendant, has said all that can be said on behalf of the defendant, including his personal, family and work background, his primary plea and full restitution. I also have regard to what he said in various mitigating letters written by the defendant’s family, friends and colleagues.
I note that the offences were discovered because of the defendant’s confession to PW1 on 4 December 2018. There are case authorities for the proposition that an accused who had confessed to his offence “in circumstances where otherwise he would have escaped punishment”, had shown “courage” which should attract a discount over and above that for a timely plea. See R v Claydon [1993] 15 Cr App R (S) 526 and also Ryan v R [2001] 118 A Crim R 538.
In the present case, in view of the lengthy period and scale of the defendant’s offences and the huge amount of money he has stolen, I am not prepared to accept that he would have been able to avoid detection altogether. However, I am prepared to accept that the defendant would have been able to avoid detection for some further time but for his confession.
Besides, there is also the fact that the defendant has made full restitution to the company and that constitutes another significant mitigation factor apart from his timely plea, HKSAR v Leung Shuk Man and HKSAR v Tsang Pui Yu Shirlina.
Having regard to all of the above, I am going to give the defendant an overall 55 per cent discount for the sentence of each of the charges. For the avoidance of doubt, I shall say that this overall 55 per cent discount has already included the customary one-third discount for a timely plea.
By way of background and general circumstances of the defendant, Ms Hung said that during the currency of the offences, the defendant suffered from work related depression and the defence said as a result of which he used spending on expensive items to release his pressure. Today I am given the defendant’s psychiatric report prepared by Dr Dorothy Tang of Siu Lam Psychiatric Centre. Dr Tang opines that the defendant suffered from bipolar affective disorder, currently in remission.
I understand that Ms Hung does not rely on the defendant’s depression as an excuse for his offences, and it is accepted that the defendant knew at the time that what he did was wrong. I agree that the defendant’s psychiatric condition does not excuse the defendant’s wrongdoings or reduce his moral culpability, as there is nothing in the psychiatric report which suggests that the defendant’s then psychiatric condition had contributed to or had anything to do with the present offences. See R v Grossi [2008] 183 A Crim R 15 at page 33.
Moreover, in my view, the need for general deterrence is not affected in anyway by the defendant’s psychiatric condition. Compare with HKSAR v Chan Wai Hung [2009] 3 HKLRD 327. I note that the condition of the defendant seems to be improving during his custody in Siu Lam Psychiatric Centre and I trust that the Correctional Services Department will continue to provide him with appropriate treatment.
As regards the issue of delay, apparently suggested by Ms Hung, Mr Leung for the prosecution has, at my request, helped prepared the chronology of the event. As to the relevant legal principles, I have regard to Sentencing in Hong Kong by Cross and Cheung, 9th edition, paragraph 30-82 to paragraph 30-94, and in particular, the legal principles set out in Scook v R [2008] 185 A Crim R 164, applied in Chiu Chi Wing, CACC 243/2012, unreported.
I note also that in HKSAR v Ma Kim Hung, CACC 32/2002, which was about a fraud upon Hong Kong’s social welfare system, the Court of Appeal said:
“We agree with Mr Tam that a delay in bringing a prosecution (whether justifiable or not) does not in itself entitle an accused to a discount in sentence, the seriousness of a crime does not diminish with the passage of time.
The principles in which delay maybe a factor in an accused’s mitigation appear clear. In AG v Lo Ching Fai, it was said that if an accused has faced many years of strain since his arrest, this may have an impact on his sentence. Delay on which an accused may be able to place reliance includes delay between the beginning of the investigation and the trial, see R v William Hung [1994] 1 HKCLR 47. However, if the accused is at fault for the delay occasioned by the length of the investigation, then he cannot rely on it, see R v Hui Hing Kong CA 722 of 1995 (unreported).”
Whether or not there has been undue delay is a case specific question. In the present case, as I have noted, the offences spanned a period of almost seven years concerning a total of 180 cheques. Despite the confession of the defendant made to PW1 on 4 December 2018, the police was bound to investigate the matter. The defendant was first taken to appear before a magistrate on 4 April 2019. After several adjournments for further investigation, obtaining of bank documents and legal advice, which are not uncommon for a case of this nature and scale, charges were eventually amended to their present form on 14 July 2020, and a return date was fixed for 16 November 2020, on which date an adjournment was sought by the defence for the settlement of the Summary of Facts. At last, the defendant pleaded guilty in the Magistrates’ Court on 28 December 2020 and was then committed to this court for sentence. Having regard to the chronology, I find that there has not been any undue or unreasonable delay on the part of the prosecution.
In my judgment, neither the waiting period between the defendant’s confession and sentence, nor his psychiatric condition can afford him with further discount on sentence.
After having determined the resultant sentence of each of the charges, I will then arrive at an overall sentence by having regard to the totality principle, HKSAR v Chiu Ping Kei.
Sentence
The sentencing tariff for the offence of theft involving breach of trust is laid down in HKSAR v Cheung Mee Kiu as later revised by HKSAR v Ng Kwok Wing: (a) involving more than 15 million or more, 10 years or above; (b) involving 3 million to 15 million, 5 to 10 years; (c) involving 1 million to 3 million, 3 to 5 years.
Based on the above, for Charge 1, which was about a total of $1,370,713, which the defendant misappropriated in 2012, I adopt 3 years 4 months’ imprisonment as a starting point, which is reduced to 18 months’ imprisonment for mitigation.
For Charge 2, which was about a total of $1,133,026.50, which the defendant misappropriated in 2013, I adopt 3 years’ imprisonment as a starting point, which is reduced to 16 months’ imprisonment for mitigation.
For Charge 3, which was about a total of $1,740,750, which the defendant misappropriated in 2014, I adopt 3 years and 8 months’ imprisonment as a starting point, which is reduced to 20 months’ imprisonment for mitigation.
For Charge 4, which was about a total of $3,881,000, which the defendant misappropriated in 2015, I adopt 5 years and 4 months’ imprisonment as a starting point, which is reduced to 28 months’ imprisonment for mitigation.
For Charge 5, which was about a total of HK$4,710,500, which the defendant misappropriated in 2016, I adopt 5 years and 8 months’ imprisonment as a starting point, which is reduced to 30 months’ imprisonment for mitigation.
For Charge 6, which was about a total of $7,120,353, which the defendant misappropriated in 2017, I adopt 6 years and 8 months’ imprisonment as a starting point, which is reduced to 36 months’ imprisonment for mitigation.
And for Charge 7, which was about a total of $6,564,000, and after deducting the defendant’s remuneration, the amount misappropriated in 2018 was $5,943,000. I adopt 6 years and 2 months’ imprisonment as a starting point, which is reduced to 33 months’ imprisonment for mitigation.
As regards the overall sentence, as aforesaid, the offences involve a grave breach of trust, spanning a period of nearly seven years, with the use of 180 cheques. Moreover, a general trend can be observed, that the defendant had become greedier and bolder over the years, as the amount he misappropriated each year had become larger and larger.
In my assessment, having taking into account all the mitigation, the overall imprisonment term of the defendant shall be one of 80 months.
To this end, I order that 5 months each of the sentences on Charge 1 to 3, 10 months each of the sentences on Charges 4 and 5 and 9 months of the sentence on Charge 7 shall run consecutively to the sentence of Charge 6. Therefore, the
overall sentence of the defendant is 5 plus 5 plus 5 plus 10
plus 10 plus 36 plus 9, equal 80 months.