HKSAR v. Yip Yuk Sang

DCCC 548/2022

[2023] HKDC 428

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 548 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Theft". As a staff member of a hospital, the defendant altered the computer records of some patients and pocketed a total sum of $418,000 over a period of 2.5 months.

Summary of Facts

2.The defendant began his employment with Precious Blood Hospital (Caritas)  in Cheung Sha Wan ("the Hospital")  since January 2007.  He was laid off on 21 September 2020.  His last post was Assistant Patient Service Supervisor.  He handled the admission and discharge of patients, including collecting payments from them.

3.Local and mainland pregnant patients were respectively required to pay $6,000 and $25,000 as reservation fees for their deliveries in the Hospital.  On 26 November 2020, Madam Chau (PW1), a financial clerk of the Hospital, discovered an unusual alteration of the bill of a mainland pregnant patient seemingly made by Madam Chung (PW4), a former clerk of the Hospital.  Upon enquiry, PW4 revealed to PW1 that she had given the password of her hospital user account to the defendant at his request.  PW4 did not know why the defendant had asked for her password.  She confirmed that she has never altered the Hospital's computer records.

4.Upon enquiry by the Hospital, the defendant confessed that he had altered the computer records of some pregnant patients in relation to the receipt of their reservation fees.  He changed the figure from $25,000 to $6,000 and pocketed the difference of $19,000 each time.  Having checked the records, Madam Kwan, Assistant Financial Manager of the Hospital, discovered that the defendant had altered the computer records on 22 occasions between 16 June and 31 August 2020.  By doing so, he had stolen a total sum of $418,000.

5.In his letter to Mr. Wong, Administrative and Financial Manager of the Hospital, dated 27 November 2020, the defendant confessed that he had used PW4's user account to alter the Hospital's computer records without her consent or knowledge.

6.The Hospital reported the matter to the Police on 2 December 2020.  The defendant surrendered at Sham Shui Po Police Station on the same day and was arrested.

7.In his video recorded interview, the defendant explained how he committed the offence.  He used the money stolen on gambling.  He also admitted having had outstanding debts since 2013.

Mitigation & Sentence

8.The defendant is 37 and has a clear record. Defence counsel Mr. Yu informed me that the defendant is divorced and has no children. He now resides with his mother (aged 67). From December 2020 to February 2023, the defendant has held 2 jobs. Knowing that he is likely to face imprisonment, he resigned from his last job in order to cause the least disruption to his employer.

9.In mitigation, Mr. Yu submitted that in 2011, the defendant picked up the habit of gambling. He managed to stop in 2012 and began to pay off his debts earnestly. In 2015, he met his wife and did not want her to know about his debts. He indulged in gambling again, foolishly hoping to win back his money to pay off his debts and to give his wife a better life. This is the background which led to his commission of the offence.

10.Mr. Yu informed me that although the Hospital alerted the Police on the same day, the defendant turned himself in on his own volition; he was not asked by the Police to attend the police station. Furthermore, the defendant has been repaying at least $5,000 to the Hospital almost each month since January 2021. Receipts issued by the Hospital show that as at 1 March 2023, he has repaid a total sum of $251,000. Mr. Yu submitted that the defendant has stopped gambling in November 2020 and has sought professional help. He also confirmed that the defendant being laid off by the Hospital had nothing to do with the present offence. Contents of the documents and letters contained in the mitigation bundle are duly noted.

11.Finally, Mr. Yu informed me that the defendant was arrested on 2 December 2020, but was not charged until 28 June 2022 (almost 19 months later). In the meantime, the defendant has maintained steady employment and repaid the Hospital continuously. In other words, he has rehabilitated himself before he came court.

12.Mr. Yu acknowledged that this case involves the Barrick type of breach of trust. He accepted that the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 are applicable. According to Ng Kwok Wing, if the amount stolen is between $250,000 and $1 million, the starting point is 2 to 3 years' imprisonment. Hence, the starting point for theft of $418,000 is about 27 months' imprisonment. I adopt 27 months as the starting point. With the timely guilty plea, the sentence is reduced to 18 months.

13.Self-initiated pre-prosecution compensation indicates genuine remorse and shouldering of responsibility, it should be properly acknowledged. The defendant has repaid 60% of the total sum stolen. I will grant him a further discount of 3 months, reducing the sentence to 15 months. I realize that the defendant may not be able to continue with his monthly repayments during his prison term. I will not make any compensation order, but simply encourage him to do what he can upon release. I trust he will act honourably according to his financial ability.

14.Regarding the "delay" issue, 19 months were perhaps slightly a bit long when the defendant has volunteered much of the evidence incriminating himself. I do not, however, find that there was undue delay because the Police could not have just accepted what the defendant said. They had to conduct their own investigation. The amounts stolen and patient records must at least be verified and matched. Mr. Chu for the prosecution has also informed me that it was difficult to obtain statements from the witnesses during COVID-19 since most of them were hospital workers. I accept his explanation.

15.Based on the reasons stated above, I sentence the defendant to 15 months' imprisonment.