HKSAR v. Tsui King Bun

DCCC 749/2022

[2023] HKDC 329

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 749 OF 2022

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REASONS FOR SENTENCE

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1.The defendant is charged with 1 count of Fraud (1^st charge), contrary to section 16A of the Theft Ordinance, Cap 210 and 3 counts of Theft (2^nd to 4^th charges), contrary to section 9 of the Theft Ordinance, Cap 210. He pleaded guilty to all the charges and was convicted accordingly.

Summary of facts

2.During the period between August 2013 to March 2014, the defendant was employed by the Hong Kong and Shanghai Banking Corporation Limited (“HSBC”)  as a Premier Customer Service Officer at the Mongkok branch.

3.At the material times, a refund mechanism was in place in HSBC. Whenever a Premier customer’s existing savings fell below HK$1 million, HSBC would charge the customer HK$380 per month.  However, the customer could request HSBC to waive the charge and a customer service officer would fill in a “Customer Refund Charges Request Form” (“Refund Form”)  for the customer.  If the request was approved by the supervising manager, the refund would be deposited to an account designated by the customer. 

4.At the material times, the defendant was tasked to handle such refund applications. 

5.In or about April 2014, the Security and Fraud Risk Department of HSBC received information that the defendant was suspected to have altered some Refund Forms.  After investigation, it was discovered that the defendant had reused some old Refund Forms for making false refund applications.  It was found that he altered the information on the Refund Forms and forged the signatures of the customers.  He then arranged the refunds to be deposited to different accounts at HSBC belonging to himself, a friend and three customers. The three customers, namely Zhang Yuping (“Zhang”), Wu Shang (“Wu”)  and Xu Dongfeng (“Xu”)  did not know the defendant had made such requests on their behalf.

6.The defendant had submitted a total of 180 Refund Forms which had been altered by him to HSBC.  The total amount involved was HK$366,300. [Subject matter of 1^st charge]

7.For the refunds that had been deposited to the accounts of the three customers, the defendant further forged 18 account withdrawal forms to transfer the refunds out of the accounts for his own use.  As a result, the following amounts were withdrawn from the accounts of the three customers:

(a)  a total of HK$23,440 from Zhang’s account [subject matter of 2^nd charge];

(b)  a total of HK$44,080 from Wu’s account [subject matter of 3^rd charge]; and

(c)  a total of HK$24,320 from Xu’s account [subject matter of 4^th charge].

8.The defendant was arrested on 3 April 2014.  Under caution the defendant admitted that he was in need of money so he stole money from HSBC.

9.In a video recording interview conducted on the same day, the defendant admitted that he was in financial difficulty and he owed about HK$200,000 to a finance company.  He said he discovered a loophole in the refund mechanism accidentally and used old Refund Forms to make false refund applications.  He then forged the signatures of the customers to transfer the refunds to his and a friend’s bank accounts and to repay his debts to a finance company.

Mitigation

10.The defendant is now 39 years of age and is married.  He is a person of clear record.  He grew up in a single-parent family where his parents divorced when the defendant was only one-year-old.  He was raised by his mother and his father passed away in 2005. The defendant studied business in a local university up to year 1 but was unable to continue due to financial difficulty.  He then started to work as a salesperson and eventually joined HSBC as a customer service officer.  He was terminated after this incident came to light.  Since 2015, he has been working as a customer service representative at DHL earning around HK$20,000 per month.

11.Defence submitted that the defendant has various medical conditions.  In short he has gout and chronic kidney disease since he was 16.  The kidney disease later developed into acute kidney failure and he eventually received a kidney transplant in 2017.  He also suffered from sepsis in 2018 and 2021 and cytomegalovirus infection in 2018. He requires long-term medications for his various medical conditions.  Concerning his chronic kidney disease, as at 2021, it was assessed to be stage G3b (G5 being the most severe).

12.Defence further submitted that there is a strong mitigating factor in this case i.e. there had been inordinate and unreasonable delay for the prosecution to proceed with the case.  The defendant was arrested by the Police as early as April 2014.  He made full confession to the Police on the same day during the video recorded interview.  However, for some unknown reasons he was released unconditionally in October 2014.  Some 4 years later in December 2018, Police invited the defendant for another interview and once again he made full confession in the interview.  Then the case went dormant again.  It was not until 26 May 2022, some 3 and a half years later, that the defendant was rearrested and charged. He was first brought to the magistrates’ court on 9 June 2022 and later to the District Court on 8 September 2022.

13.It was submitted that from the time of the first arrest in 2014 to the time when the defendant was charged in 2022, more than 8 years had passed.  The prosecution is not able to provide any satisfactory explanation for such an extraordinary delay.  It was submitted that it is wholly unfair to the defendant who has been put under stress for such a lengthy period and during which he has worked hard to rebuild his life.   

14.Lastly, Defence submitted that the defendant is able to make full restitution to HSBC in the sum of HK$366,300.  I am given to understand that the victims of 2^nd to 4^th charges did not suffer any actual loss.  In any event, the amount of the restitution is a substantial amount of money for the defendant and it shows the defendant is genuinely remorseful and he really wants to make amend of his misdeeds. 

15.All in all, Defence urged the court to take into account of all the above strong mitigating factors and impose a suspended sentence.   

Sentencing consideration

16.This is a serious case of fraud and theft because it involves breach of trust.  The defendant was trusted by his then employer to handle the accounts of the customers.  The defendant was also trusted by the customers to handle their accounts.  Further the offences were not committed out of momentary greed.  Quite to the contrary, the commission of the offences involved careful planning and execution of various steps.  It was certainly not a single act.  The defendant repeatedly carried out the fraudulent acts over a period of time.  Therefore, it is a serious case and imprisonment is obviously the only option.    

17.Considered the tariff set down by the Court of Appeal in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and later revised in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, the starting point for 1^st charge should be 2 to 3 years and for 2^nd to 4^th charges should be below 2 years.  Having considered all the circumstances of the case, I would adopt 27 months as the starting point for 1^st charge and 12 months for 2^nd to 4^th charges.   

18.The defendant pleaded guilty to all charges and is therefore entitled to one-third discount.  Concerning his health conditions, Defence provided various medical documents to prove he is suffering from various illness.  It is common knowledge that patient suffering from kidney disease faces a lot of inconvenience in daily life.  It is not difficult to imagine the extra inconvenience and hardship the defendant will face if he has to serve prison sentence.  For humanitarian reason, 3 months will be deducted from the sentence of 1^st charge and 1 month from the sentences of 2^nd to 4^th charges.

19.The defendant is able to make full restitution.  It is a mitigating factor that the court must acknowledge.  Considered the circumstances and the amount involved, for 1^st charge, the court will give the defendant a further deduction of 2 months and for 2^nd to 4^th charges, a deduction of 1 month will be given.

20.Lastly, the court has to deal with the issue of delay.  The court accepts that in cases of complicated nature and involved large amount of documents, it is not unreasonable for the Police to use more time to complete the investigation and for the Department of Justice to provide legal advice.  However, in all fairness, this case is not particularly complicated.  It might require more time to conduct the investigation but a delay of more than 8 years is wholly unjustifiable.  From the information provided, it seems that for lengthy periods of time, not just months but years, the case simply went dormant and the prosecution is not able to provide any satisfactory explanation as to the lack of progress.  During that time, in addition to facing the stress resulted from this case, the defendant started anew and experienced ups and downs in his life including being adjudged bankrupt, getting married, resumed working and having kidney transplant.  

21.Considered the authorities Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236 and Secretary for Justice v Chan Kit Bing [2001] 1 HKLRD 844, a delay in prosecution could amount to an exceptional circumstance which may justify suspension of the sentence. In this case the extent of the delay is exceptionally long and it certainly caused additional hardship to the defendant.  Further considered his health condition, the court is of the view that there are exceptional circumstances for the court to impose suspended sentence.

22.Base on the about reasons, after giving all the deductions as indicated above, for 1^st charge, the defendant is sentenced to 13 months’ imprisonment.  For 2^nd to 4^th charges, the defendant is sentenced to 6 months’ imprisonment.  As 2^nd to 4^th charges all arising from the transactions in 1^st charge, I order the sentences of 2^nd to 4^th charges to be served wholly concurrently with the sentence of 1^st charge, making a total sentence of 13 months’ imprisonment.  For the reasons given above, I order the sentence to be suspended for 3 years.  Therefore, the sentence is 13 months’ imprisonment suspended for 3 years.

23.Lastly, concerning restitution, I was informed that the whole amount has been deposited in the bank account of the solicitors acting for the defendant and a cashier order has been prepared to make the payment.  Therefore, I order the defendant to make a restitution to HSBC in the sum of HK$366,300 before 4 pm on 2 March 2023.