HKSAR v. Lam Hiu Pang

DCCC 914/2021

[2022] HKDC 444

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 914 OF 2021

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REASONS FOR SENTENCE

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1.The defendant was charged with 2 counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210. He pleaded guilty to Charge 2. In those circumstances, the prosecution agreed to leave Charge 1 on file, not to be proceeded with without the leave of court.

Admitted Facts

2.The summary of facts admitted by the defendant are as follows:-

Background

(1)  Mr Wong (PW1)  is the sole shareholder of Gold Luck Finance Company Limited (the Company). The Company is a money-lending company which commenced its business in January 2020.

(2)  The defendant was employed by the Company as its sole director in February 2020.

(3)  In order to save costs, the Company set up an office in Shenzhen to deal with documentary work of the Company.

(4)  Either one of PW1 or the defendant’s signature would be sufficient to access the Company’s Hang Seng Bank integrated account 242-XXXXXX-883 (the Account). However, PW1’s signature was required for the Account’s cheques.

(5)  The defendant was responsible for the Company’s day-to day business and operation.

Charge 2

(6)  The defendant was supposed to provide a financial report to PW1 each month. However, since April 2020, he failed to provide any monthly financial reports to PW1.

(7)  On or about 10 October 2020, the defendant telephoned and informed the staff in the Shenzhen office that, due to the Covid-19 pandemic, the Company’s business would be suspended. However, the staff in Shenzhen office did not report the matter to PW1.

(8)  In or about mid-November 2020, the staff in Shenzhen were unable to reach the defendant, they then reported the matter to PW1. It was only then that PW1 learnt that the Company’s business had been suspended by the defendant.

(9)  On 25 November 2020, PW1 tried to contact and locate the defendant through Whatsapp but to no avail.

(10)  On 3 December 2020, PW1 tried to contact and locate the defendant through the defendant’s elder brother but that was also in vain.

(11)  On 9 December 2020, PW1 applied to the Hang Seng Bank for the Account’s transaction records and applied to cancel the authorization for the defendant to operate the Account.

(12)  PW1 then discovered that in a period between 10 October 2020 and 14 December 2020 (both dates inclusive), there were altogether 40 cash withdrawals from the Account, totaling HK$1,299,100. None of the cash withdrawals were effected or authorised by PW1.

(13)  The defendant’s monthly salary was HK$25,000. Taking into account the defendant’s salary for October and November 2020 (ie HK$50,000), the total mount dishonestly misappropriated by the defendant was HK$1,249,100.

(14)  On or about 27 December 2020, PW1 received a SMS from the defendant, who represented that he would surrender himself to the police.

(15)  On 29 December 2020, PW1 reported the case to the police.

(16)  The defendant only surrendered to the police on 25 January 2021. On the same day, the defendant was arrested for theft. Under caution, the defendant said “I stole the money. I spent them all on gambling and repaying debts. I do not even have one dollar left now”.

(17)  In a subsequent cautioned video-recorded interview, the defendant admitted inter alia, that he had committed the offence and, unbeknown to PW1, he had used most of the money for gambling and repaying his own debts.

(18)  At all material times, in the period between October 2020 and December 2020, the defendant stole a total sum of HK$1,249,100 from the Company.

The defendant’s background

3.The defendant is 51 years old.  He has a clear record.  He graduated in Business Administration from the Chinese University and has been working in the finance industry since 2014.  Thereafter, he was recruited to start up and manage three money-lending companies in Hong Kong.

4.The defendant and his fiancée have a son.  Prior to his arrest, the defendant lived in China with his fiancée.  Not only is he the sole breadwinner of his own family, he also supports his mother (HK$11,000 per month).

Reasons

5.Theft committed in breach of trust is a very serious offence, for which the Court of Appeal has given sentencing guidelines: See HKSAR v Cheung Mei Kiu [2006] 4 HKLRD 776, as amended by HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  The court understands that such sentencing guidelines are not strait jackets.  However, there must be cogent reasons before the court should depart from those guidelines.  Further, apart from the amount stolen, the court must also consider all the circumstances of the case, including the factors set out in R v Trevor Clark [1998] 2 Cr App R 137:-

(1)  the quality and degree of trust reposed in the offender, including his rank;

(2)  the period over which the fraud or the thefts have been perpetrated;

(3)  the use to which the money or property dishonestly taken was put;

(4)  the effect upon the victim;

(5)  the impact of the offences on the public and public confidence; the effect on fellow employees or partners;

(6)  the effect on the offender himself;

(7)  his own history;

(8)  those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like, where, as sometimes happens, there has been a long delay, say over two years, between being confronted with his dishonesty by his professional body or the police and the start of his trial; and

(9)  any help given by him to the police.

6.There is no dispute that the defendant was the sole director of the Company and was solely authorised to deal with its day-to-day operation.  He was given access to the Account.  Although cheques required the signature of PW1, the defendant was given pre-signed cheques.  In other words, he was given full management powers of the Company and a very high degree of trust was reposed in him.  In breach of that trust, the defendant began stealing from the Company within less than a year of its establishment.

7.Although the theft only lasted for about 2 months, there were 40 separate cash withdrawals.  Further, the defendant misrepresented to the staff that the Company’s business had to be suspended before he started stealing from the Company.  This was clearly not a momentary lapse of judgment.  It was premeditated, systematic and persistent.

8.The defendant avoided all contact with the staff and PW1 after he took the money.  Basically, he did not contact PW1 until the last dollar was spent.  No restitution whatsoever has been offered and no part of the stolen funds would ever be recovered by the Company.

9.As a result of this case, the defendant is facing a term of imprisonment.  In the light of the facts of this case, he will probably not be able to work in the financial services field again.  However, he is the author of his own wrong.

10.The defendant told the police that he spent all the money on gambling.  He tried to change his story in mitigation, blamed his behaviour on additional expenses incurred because of his new born son and the effect of the pandemic on the economy.  He says that he was under great financial stress.  Firstly, according to the admitted facts, he was paid a fixed salary of $25,000.  Even with the birth of his son who he has chosen not to see since birth, he should be living within his means.  It was not an excuse to steal from his employer. Secondly, he stated that the pandemic affected his income.  In fact, the pandemic had no effect whatsoever on his income.  The excuses that he has given only go to demonstrate his lack of remorse.  Even if the court were to accept the defendant’s assertions of financial strain, that accounts for little, if anything as mitigation.

11.The defendant has surrendered to the police and has made a full admission.  Apart from that and his timely plea, there are no other mitigating factors.

12.Counsel submitted that according to a pure mathematical calculation, the appropriate starting point is 39 months’ imprisonment.  As explained above, the amount stolen is not the only deciding factor.  The court must take into account the high degree of trust reposed in the defendant, the premeditation and persistence and the fact that none of the stolen funds will ever be recovered.  Having considered all the matters mentioned above, I adopt 3 ½ years as a starting point.  The defendant has pleaded guilty.  Although the court doubts his remorse, I will give him the full one third discount.  The sentence is reduced to 28 months.

13.Counsel urged the court to exercise its discretion to give the defendant a further discount for his clear record.  In law, it is an aggravating factor if an offender has similar previous criminal convictions.  Further, normally, sentencing guidelines are for first offenders.  In other words, the fact that the offender has a clear record has already been taken into account when the court adopts the sentencing guidelines.  In any event, the court sees no reason to give any further discount in the circumstances of this case.  The defendant is sentenced to 28 months’ imprisonment.