HKSAR v. Sit Man Ying

DCCC 637/2020

[2021] HKDC 610

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 637 OF 2020

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REASONS FOR SENTENCE

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1.Ms Sit pleaded guilty before me to 5 charges of Theft, namely Charges 2, 4, 6, 8 and 10, all contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of these 5 charges are all similar, and they are as follows:

3.Ms Sit, [during a certain period], in Hong Kong, having received from Lam Hiu Ling, cash in the sum of [certain amount] Hong Kong currency which or the proceeds of which she was under an obligation to the said Lam Hiu Ling to retain and deal with in a particular way, namely to pay for [certain number of boxes] of surgical masks requested by the said Lam Hiu Ling, stole the said cash of [certain amount] Hong Kong currency, property belonging to the said Lam Hiu Ling.

4.For Charge 2, [during a certain period] meant “between 17 February and 10 March 2020, both dates inclusive”; [certain amount] meant “$330,000”; and [certain number of boxes] meant “6,000 boxes”.

5.For Charge 4, [during a certain period] meant “between 21 and 29 February 2020, both dates inclusive”; [certain amount] meant “$425,000”; and [certain number of boxes] meant “10,000 boxes”.

6.For Charge 6, [during a certain period] meant “between 22 February and 4 March 2020, both dates inclusive”; [certain amount] meant “$395,000”; and [certain number of boxes] meant “5,000 boxes”.

7.For Charge 8, [during a certain period] meant “between 26 February and 4 March 2020, both dates inclusive”; [certain amount] meant “$1,071,726”; and [certain number of boxes] meant “23,804 boxes”.

8.For Charge 10, [during a certain period] meant “on or about 28 February 2020”; [certain amount] meant “$1,100,000”; and [certain number of boxes] meant “27,500 boxes”.

9.The prosecution asked that Charges 1, 3, 5, 7 & 9 (all charges of Fraud) be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

Facts admitted by Ms Sit

10.Ms Sit and Lam Hiu Ling (PW1) were primary school-mates.  Beginning in early January 2020, they resumed loose contact via Whatsapp.  On 15 February 2020, Ms Sit made textual representation to PW1 that she knew a supplier who could offer a large amount of surgical masks from Indonesia and Japan for sale.  PW1 therefore ordered surgical masks from Ms Sit.  Agreements were signed between them and PW1 paid cash to Ms Sit on 5 occasions as deposits as follows.

Charge 2

11.On 17 February 2020, Ms Sit told PW1 she had means to source 6,000 boxes of surgical masks including Indonesian and Japanese made ones.  PW1 ordered the whole lot from Ms Sit who claimed they would be delivered no later than 10 March 2020.  PW1 paid cash of $330,000 as deposit to Ms Sit on 17 February 2020.

Charge 4

12.On 21 February 2020, Ms Sit told PW1 she had means to source 10,000 boxes of Indonesian made surgical masks.  PW1 then ordered the whole lot from Ms Sit who claimed they would be delivered no later than 29 February 2020.  PW1 paid cash of $425,000 as deposit to Ms Sit.

Charge 6

13.On 22 February 2020, Ms Sit told PW1 she had means to source Japanese made surgical masks.  PW1 ordered 5,000 boxes from Ms Sit who claimed they would be delivered no later than 4 March 2020.  PW1 paid cash of $395,000 as deposit to Ms Sit.

Charge 8

14.On 26 February 2020, Ms Sit told PW1 that she had means to source more surgical masks.  PW1 then ordered 23,804 boxes of surgical masks including Indonesian and Japanese made ones which Ms Sit claimed would be delivered no later than 4 March 2020.  PW1 paid cash of $1,071,726 as deposit to Ms Sit.

Charge 10

15.On 28 February 2020, Ms Sit told PW1 she had means to source more surgical masks.  PW1 then ordered 27,500 boxes of Indonesian surgical masks which Ms Sit claimed would be delivered no later than 29 February 2020.  PW1 paid cash of $1,100,000 as deposit to Ms Sit.

General

16.PW1 had ordered a total of 72,304 boxes of surgical masks and paid cash of $3,321,726 in total to Ms Sit.

17.When it became apparent that the first delivery date of 29 February 2020 would not be met, PW1 became suspicious and reported the case to the police.

18.Ms Sit then admitted to PW1 it was a scam but she refused to repay the money.  On 1 March 2020, Ms Sit became out of reach.

Arrest and caution

19.Ms Sit was arrested on 7 March 2020 and under caution, she claimed she initially believed she had a source of supply of surgical masks; but after she received the monies from PW1, she became aware that no surgical masks would be delivered, so she gambled away all the monies.

20.Cash of $15,670 was found in Ms Sit’s wallet and cash of $120,000 was found in the home of Ms Sit’s boyfriend.  Under caution, Ms Sit admitted the cash found was the remainder of monies received from PW1.

21.Under cautioned VRI, Ms Sit stated that:-

(a)  Her source of surgical masks one Ray Ho told her that the goods would arrive at the end of February so she told PW1 the same; and

(b)  After receiving the monies from PW1, she lost the same on online gambling so she had no means to pay for the surgical masks.

22.Police contacted Ray Ho who denied what Ms Sit claimed to the police about him.

23.Ms Sit now admits she has stolen the total amount of the 5 charges from PW1 and has not repaid any part of it to PW1.

Criminal record

24.Ms Sit has a clear record.

Antecedents

25.Ms Sit is aged 33 (32 at the time of the offences), educated to but did not finish higher diploma level.  During the period from 2011 to 2020, Ms Sit worked as a customer service officer.  Ms Sit was occasionally residing in a public housing unit in Tsing Yi with her boyfriend.

Mitigation

26.Ms Stephanie Ko of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Sit.

27.The following is a summary of the mitigation submissions.

28.Before arrest, Ms Sit was living in Wong Tai Sin with her mother (63) who suffered from brain cancer.  Ms Sit was the main carer of her mother throughout the medical treatment.  Ms Sit worked as Service Leader (Airside) for HK Airport Services Limited (“HAS”) for over 10 years earning $18,000 per month of which $5,000 went to her mother.

29.The present case is not a breach of trust case; so the sentence should be lower than the sentencing band laid out in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 (as adjusted in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017).  There is no sentencing tariff for this type of theft and it should be judged on its own set of facts.  This is an isolated incident and the offences were not sophisticated nor part of a syndicate.

30.Ms Sit’s remorse is reflected by her guilty plea and she asks for the relevant discount.

31.Ms Ko submitted a mitigation letter written by Ms Sit herself and a letter from HAS certifying Ms Sit’s previous employment.  The mitigation letter spoke of her acknowledgment of breach of the personal trust that PW1 had reposed in her; that she will take up further study while in prison and will not re-offend on release; that she asks for leniency because this was her first breach of the law.

32.The 5 charges arose out of the same factual background and Ms Ko asks the court to consider the totality principle and asks that the sentences be ordered to run concurrently.

Sentence

33.I am satisfied this is not a breach of trust case.  If it had been a breach of trust case, the sentence for theft of about HK$3M would likely be 5 years’ imprisonment after trial.  Fortunately for Ms Sit, it is not.

34.I take into account only by sheer luck and through no doing of Ms Sit, a small part of the stolen property namely, $135,670, has been recovered by the police.

35.The offences were committed using the same modus operandi and spanned over less than one month.  I am of the view that a global starting point could be adopted.  After taking into account all relevant circumstances of the offence, I will adopt a starting point of 4 years 3 months’ imprisonment in this case.

36.Ms Sit pleaded guilty in good time and is therefore entitled to a 1/3 discount.  That will take the sentence down to 34 months.  For her previous clear record, I will take off one additional month after the 1/3 reduction. There are no other mitigating factors justifying any further discount.

37.I will impose the following individual sentences after taking into account her pleas and her clear record.

(Ms Sit, please stand)

38.For Charge 2, Ms Sit is to serve 16 months’ imprisonment.

39.For Charge 4, Ms Sit is to serve 18 months’ imprisonment.

40.For Charge 6, Ms Sit is to serve 18 months’ imprisonment.

41.For Charge 8, Ms Sit is to serve 22 months’ imprisonment.

42.For Charge 10, Ms Sit is to serve 22 months’ imprisonment.

43.After considering the principle of totality, I order that 2 months of the sentence on Charge 2, 2 months of the sentence on Charge 4, 2 months of the sentence on Charge 6, and 5 months of the sentence on Charge 8 are to run consecutively to each other among themselves, and the result is to run consecutively to the sentence on Charge 10, making an aggregate sentence of 33 months’ imprisonment.