HKSAR v. Chan Mei Ling, Sydney

HCCC 199/2022

[2023] HKCFI 2754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 199 OF 2022

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant was committed to be sentenced by the Court of First Instance of the High Court having pleaded guilty to two counts of theft, contrary to section 9 of the Theft Ordinance, Chapter 210.

Summary of Facts

The defendant’s younger brother, Chan Kwok-wai, was the sole director and shareholder of a company called Joinwell Multiplex (International)  Limited, I will call it JM from now on. JM has a bank account, I will call it JM account with Bank of East Asia for its operational use.

The defendant joined JM and was responsible for administrative, clerical, and financial matters since 1999. In 2001, the defendant was added as a signatory of the JM account for administrative convenience. The defendant was authorised to issue company cheques on her own for genuine company use only. At the relevant times, only Chan, that is the brother, and the defendant were the account signatories of the JM account.

In February 2018, the defendant informed her brother Chan that she had taken around HK$25 million from the JM account for purposes other than genuine company use.

On 14 February 2018, the defendant signed a declaration admitting that she had taken HK$25 million of JM’s money for personal use. The defendant left the employment of JM on 1 March 2018.

Chan made a report of the theft case to the police in August 2018 and the defendant was arrested on 13 March 2019. Under caution, she admitted that she had cheated Chan for about $20 million-odd.

In a video-recorded interview, the defendant admitted that all the cheques involved in the case had been written and signed by her for her private use. For some of the cheques, she went to the bank to make cash withdrawals. The remaining cheques were deposited to her personal bank account also with the Bank of East Asia account.

Between 5 July 2016 and 1 February 2018, both dates inclusive, in Hong Kong, the defendant stole choses in action, namely, debts in the total sum of 15,899,516 Hong Kong currency, owed by the Bank of East Asia Limited to JM, property belonging to JM, by issuing 102 cheques of the JM account and withdrew cash. That is the 1^st count.

As for the 2^nd count, it was said that between 21 July 2016 and 9 November 2016, both dates inclusive, in Hong Kong, the defendant stole choses in action, namely debts in the total sum of HK$4,159,351, owed by the Bank of East Asia to JM, property belonging to JM, by issuing 14 cheques of the JM account and depositing them to the defendant’s account.

In JM’s accounting record prepared by the defendant, these 116 transactions were falsely recorded as payments to non-existent supplier companies, payment to her brother and/or petty cash.

There was no insurance coverage for the total sum of HK$20,058,867 stolen in this case. Those were the facts admitted.

The Victim Impact Statement

The victim, the brother Chan, provided a statement to the police describing the impact of the crime on him and his family. He and his wife originally planned to use the $20 million for immigration purpose after retirement. Now the plan had to be postponed. The loss also affected his son’s wedding due to shortage of cash.

As the lost money would have been used in the running of the business, he had to further mortgage his home to obtain money to do so and he also had to redo the accounts which were original dealt with by the defendant. And he said he felt great stress as a result of this incident.

The Defendant’s Background and Mitigation

According to the antecedents statement, the defendant was born in 1961, so she should now be 62 years old. She is divorced and had an adult daughter. She was educated up to Secondary 3 level and before working in JM, she worked as a garment worker. Since 2018, just after this incident, she worked as a domestic helper.

Defence counsel, Mr Alan Ng, in his first mitigation submission, gave more details about the defendant. The defendant was brought up in a poor family and she has to quit school after completing Form 3 to support her family. She married her husband in 1982 and suffered three miscarriages before having her daughter now in her 30s and married. Her husband was unfaithful to her even when she was pregnant with their daughter and he did not give sufficient support to the defendant for family expenses.

The defendant sought assistance and had CSSA several months after her daughter was born but she gave them up and relied on her own earning shortly after. The defendant divorced her husband when her daughter was about 6 years old and she raised her daughter alone as her ex-husband did not pay the maintenance order by the Family Court except for a month or two.

Mr Ng informed this Court the circumstances leading to the defendant’s commission of the present offences. The defendant befriended a man named Kevin on Facebook and fell victim to a dating scam. Kevin pretended to be in love with the defendant and promised to marry her. Having claimed that he had received a huge amount of inheritance in Malaysia and urgently needed funds to arrange for a probate, having showed documents to support his claim. The defendant naively used her own savings of around HK$400,000 to help out Kevin. She also borrowed 900,000 from banks in her own name to help Kevin. As she ran out of money, she foolishly used money from JM to finance Kevin, believing that Kevin was real and would repay her.

The defendant finally woke up in February 2018 and told her younger brother what had happened. She also made a report to the police on the same day about the online dating scam with her younger brother and his family. The defendant was made bankrupt in April on her own application.

After referring to the sentencing guidelines in the case of Cheung Mee Kiu and Ng Kwok Wing, Mr Ng invited this Court not to adopt too strict a mathematical approach in arriving at the starting point in this case. Mr Ng prayed in aid the cases of Leung Chi Yuen and Tong Chi Ling Eric to show that the court did not impose a starting point over 10 years when the case involved more than 15 million, emphasising that the amount was not the only factor to be considered.

Mr Ng stressed that the defendant was deeply remorseful for having committed these offences. She was a victim of an internet love scam. She committed the offences because of her clouded judgment in believing and trusting an online scammer. She never intended nor did she have any personal gain. The incident has tarnished her good record and has wreaked havoc on her mental health and her relationship with her family, in particular with that of her younger brother.

Mr Ng also emphasised the fact that it was the defendant who took the initiative to own up to her younger brother. When arrested and questioned by the police, she admitted her wrongdoing right away. This matter lingered on for 5 years and she had been tormented by shame and guilt. She had pleaded guilty at the earliest available opportunity. She had also rendered assistance to the police and enable the police to recover $800,000 from the various accounts provided by Kevin to her for deposits.

The defendant, her family members and friends, totalling 11, have written to me all asking for leniency. The picture described by all those close to the defendant was that she was a kind person and a filial daughter who was willing and ready to render assistance to those in need. It was only because of her loneliness that led her to be tricked by the online scammer, believing she had found love and committed these offences.

Mr Ng urged this Court to adopt a starting point of 8 years and 5 years for the two offences and after giving the defendant discount for plea and assistance to authorities, Mr Ng submitted that a total sentence of 5 years and 5 months is appropriate.

The case was adjourned for the defence to provide more information concerning the assistance given by the defendant to the authorities and on the issue of delay. Mr Ng has furnished me with a supplemental written submission. He referred to the statement provided by a police inspector, certified by the senior superintendent, confirming the defendant’s report led to the arrest of 12 holders of bank accounts to which the defendant had transferred money. One account has been frozen and one account holder is being prosecuted for money laundering.

The trial will take in August next year and the defendant is willing to be a prosecution witness. Mr Ng acknowledged that this Court cannot take into account the promise to testify and the defendant will bring this up on appeal after she had testified.

As for the delay, Mr Ng referred to a chronology prepared by the prosecution. It can be seen from the chronology that although the brother was informed of the theft in February 2018, he did not wish to pursue against the defendant. However, there was a change of heart. On 15 June 2018, he told the police he wanted to pursue against the defendant. The brother only provided a statement to the police on 7 August as he needed time to provide the relevant documents to the police. And the police applied to obtain bank documents on the same date and in October, 12 account holders were arrested.

From November onwards, the police analysed the documents from the banks and the defendant was arrested on 13 March 2019. After obtaining a further statement from the brother and conducting a video-recorded interview with the defendant on 5 June 2019, the case file was forwarded to the Department of Justice for advice.

From February 2020 onwards, there was an outbreak of COVID-19 in Hong Kong. On 3 June 2020, police received legal advice from the Department of Justice. The defendant who was released temporarily on 27 September 2019 was rearrested on 6 July 2020. On 29 July, the defendant appeared in court. On 31 August 2020, that is the first return day, the case was adjourned for the prosecution to prepare a hearing bundle.

From 16 November 2020 onwards up to 28 December 2021, there were eight return days and on each occasion the case was adjourned on the defence application.

Then came the general adjournment period between 7 March 2022 and 11 April 2022 that is because of COVID. And then from 13 June 2022 to 7 November 2022, there were three more return days, 10, 11 and 12, which were all again adjourned on the defence application.

Then on 21 November 2022, that is the 13th return day, the defendant pleaded guilty and was committed to the High Court for sentence.

Mr Ng submitted that there appears to be no reason why the Department of Justice took more than nine months to give legal advice. While most of the adjournments were made by the defence, the purpose of such adjournments was to enable the defence to further negotiate with the prosecution regarding the amount stolen by the defendant. In the end, the prosecution agreed to reduce the total amount stolen from 30 million-odd to 20 million-odd.

Mr Ng submitted that there is a long lapse of time, more than five years, between the brother’s report to the police and the defendant’s first appearance before this Court. He asked this Court to take into consideration that during this lengthy period, the defendant had been tormented by her guilt, the breakdown of relationship with her brother, and her anxiety about the case, and invited this Court to give a small discount of say 3 months to the defendant.

Mr Ng submitted that while there was no repayment made by the defendant to the victim, her brother, the defendant suffered financial distress as a result of the scam and was declared bankrupt in 2018.

After referring to a number of CFI cases such as Ma Chun Kit, Leung Siu Lung, Chang Yau Hung, Mr Ng submitted that those cases illustrated that the sentencing court is not bound to proportionately increase the starting point beyond $15 million. Mr Ng suggested a starting point of 8 years for the 1^st count and 5 years for the 2^nd count. After giving the defendant a one-third discount and taking into consideration the totality principle, Mr Ng suggested that a total sentence of 5 years and 5 months was an appropriate one.

In the case of Barrick, which involved a breach of trust case, the English Court held that the court should have regard to the following matters when considering the proper sentence:

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

(2)  the period over which the fraud or the theft had been perpetrated;

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

(4)  the effect on the victim;

(5)  the impact of the offence on the public and public confidence;

(6)  the effect upon fellow employees or partners;

(7)  the effect of the offender himself;

(8)  his own history;

(9)  those matters of mitigation special to himself such as illness, being placed under grave strain by excessive responsibility or the like.

In the case of Cheung Mee Kiu, the Court of Appeal set out the sentencing guidelines for breach of trust cases with reference to the English authority of Clark. Those guidelines were later revised in the case of Ng Kwok Wing. For 15 million or more, 10 years or above; 3 million to 15 million, 5 to 10 years; 1 to 3 million, 3 to 5 years; 250,000 to 1 million, 2 to 3 years; 250,000 and less, below 2 years.

The prosecution referred me to four cases, all involving theft or fraud of over 15 million. The case of Ng Chi Ho, it was an investment fraud case, eight charges involving eight victims in the span of 1 year involving over 22 million. Global starting point in the range of 10 and 11 years appropriate.

In the case of Cheung Curtis Ka Kim, also investment fraud, involving over 3 million US, that is about 25 million Hong Kong, six victims over two decades, overall starting point of 13 years, not a day too long.

But the case of Chong Hung Shek, a clerk stealing over 35 million from an employer company in three years, actual loss was over 10 million. Overall sentence after plea, 8 years.

In the case of Nones Carmelita Galay, a domestic helper. She stole 14.6 million worth of properties from her employer in the span of 16 months. On review, the Court of Appeal considered the overall sentence would have been 10 years and 6 months.

The defence counsel, Mr Ng, referred me to three other cases. The case of Wong Chor Wo, who is a chairman and majority shareholder of a public company, stole 20.8 million from the company. After making allowance for a certain amount having been deposited into the company’s account, a total of 17.32 million was missing. Total sentence of 6 years.

Leung Chi Yuen, employee stole from the employer a total of almost $30 million or 29.5, I think, 29.5 million over a period of five years. The defendant gambled the money away. The trial judge was of the view that a starting point of 8 years and 3 months was appropriate. The particular defendant committed the offence while on bail for another breach of trust case and he was then serving a sentence. So such matter had no bearing on the notional starting point.

The last case is Tong Chi Ling Eric. Employee of a chain of restaurants stole a total of over 24 million between August 2005 and April 2007. The overall sentence was 6 years and 8 months for the six counts. The trial judge adopted a 9-year starting point for the 1^st charge which involved 20 million. I bear in mind the guidelines already mentioned and the various factors I need to take into account when considering the correct sentence.

The defendant is the elder sister of the victim and she was trusted by her brother to be responsible for the financial matters of JM, both as the brother’s family and as an employee. The breach of trust is serious. The thefts were committed between July 2016 and February 2018, a period of 20 months. The defendant was a victim of an online scammer and she believed she was helping her online lover. I should add here that I do not think it is a mitigating factor for one to steal to help a lover, even if the lover is genuine.

The victim is the defendant’s own younger brother. According to the impact report, the victim impact statement which I have already referred to, the victim suffered not just huge financial loss. The incident has a serious impact on him personally and on his business. The circumstances of this offence do not affect any public confidence or any fellow employees.

The effect on the defendant herself could be said to be devastating. She tarnished her good name, broke up with her close family, and became a bankrupt apart from living in shame and guilt. Her own history showed that she had a rather sad history with a failed marriage.

Having considered all the circumstances of the case and the mitigation submitted on the defendant’s behalf, I agree that I need not apply a strict mathematical approach in coming to my decision regarding the starting point.

For the first offence involving over $15 million, I am of the view that a starting point of 8 years is appropriate. For the 2^nd charge involving over $4 million, a starting point of 5 years is appropriate. Taking a global view, I am of the view that an overall starting point of 9 years would properly reflect the criminality involved in this case.

There is a long period of over 5 years from the time she owned up to her brother about the theft to the time she appeared before this Court for sentence. However, the main reason for the long delay was because the defence kept asking for adjournments to sort out the exact amount stolen by the defendant. The delay is fruitful in the sense that the amount allegedly stolen by the defendant was reduced from 30 million to 20 million, not an insubstantial amount to which the defendant had the benefit when sentence is considered. Needless to say, stealing 30 million is quite different from stealing 20 million.

While I accept that the defendant was guilt ridden and anxious during this long wait, I do not think it proper to give her any further discount when it cannot be said that there was any substantial delay caused by the prosecution, particularly in view of both the social event in 2019 and the COVID situation in 2020. In my view, to give the defendant a further discount would amount to double benefiting her because she already got the benefit of the delay. So I reject Mr Ng’s suggestion of a further discount of 3 months.

As for the alleged assistance to the police, I must say that the defendant reported the scam to the police which enabled the police to track down the various account holders involved, but she was in the capacity of a complainant who made a report. So whether she can convince the court that by giving evidence in the forthcoming trial she should get a discount remains to be seen. In any event, Mr Ng correctly submitted that a promise to give evidence in the future is not really something that I can take into account.

The defendant pleaded guilty timely and is entitled to a full one-third discount. So the overall sentence should therefore be 6 years. So to achieve this result, the defendant is sentenced as follows: Count 1, 5 years and 4 months’ imprisonment; Count 2, 3 years and 4 months’ imprisonment, 8 months of which to run at the expiration of the 5 years 4 months imposed on Count 1, or in other words consecutive to the 1^st count, then making a total of 6 years’ imprisonment.