HKSAR v. Avelino Kristine Annette Discher

DCCC 959/2022

[2024] HKDC 40

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 959 OF 2022

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REASONS FOR SENTENCE

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1.The defendants pleads guilty to two charges of theft, namely theft of a chose in action, for a total sum of HK$5,396,839.70 [Charge 1] and a chose in action for a total sum of HK$344,044.10 [Charge 2].

2.The Summary of Facts reveals that the defendant was first employed by Victim Company 1 as a personal assistant and book-keeper to the owner in 2009 and she continued in that role until May 2017.  The defendant would prepare the company cheques and present them to her boss who would simply sign them.  The cheques were uncrossed.  In May 2017, it was found out that a lot of records were deleted and some of the payment records were missing.  It was admitted by the defendant that since 2012, she had prepared a total of 178 unauthorized cheques made payable to herself and her father involving a total value of HK$5,396,839.70 (Charge 1).  Bank records later revealed that the actual total amount of funds misappropriated from the 178 cheques was HK$4,412,686.50.

3.In late May 2017, the defendant changed to work as an office manager for Victim Company 2.  The defendant was responsible for preparing cheques for approval.  In March 2018, it was discovered that the defendant had altered a total of 16 cheques and thereby misappropriated funds totaling HK$332,921.10. Bank records showed that the cheques (totalling HK$344,044.10)  were cashed out by the defendant (Charge 2).

4.The defendant was arrested in April 2019.

5.In mitigation, Mr. Davis informs me that the defendant is now aged 36. In 2012, when she began to commit the offences, she was aged 25. 

6.The defendant came from Philippines when she was aged 10 and she is now a Hong Kong permanent resident.  She is married.

7.She had a clear record criminal record.

8.Mr. Davis describes that at all material times, the defendant has been the main breadwinner of the family and she has been supporting her parents as well as her grandparents who live in the Philippines. 

9.I am told that the defendant is not in good health.  She suffers from Asthma, Anxiety, Hypersensitivity and she has recently been diagnosed with a liver disease.

10.Regarding the offences, it is submitted that the defendant did it out of desperation in order to pay for her uncle and her grandmother’s medical expenses.  Sadly, her grandmother has now passed away.

11.Mr. Davis correctly accepts that this is a breach of trust case.  The appropriate starting point for sums between HK$3 million and HK$15 million [Charge 1] would be between 5 and 10 years.  For offences involving sums of between HK$250,000 and HK$1 million [Charge 2], the appropriate starting point is between 2 and 3 years.[1]

12.I am asked to accept that the amounts of money involved for both charges are at the lower end of their respective scales.

13.I accept that the defendant did plead guilty to the offences at the earliest opportunity, and she is thus entitled to a full one third discount.  I also note that she is a first offender.  I accept that she appears to be remorseful and she is unlikely to reoffend.

14.I am prepared to grant the defendant a small reduction because, as Mr. Davis puts it, this case has been hanging over the head of the defendant since the time of her arrest in 2019.  It has caused great stress, not only to the defendant but also to her family members.  Whilst I confirm and agree with the Defence that it is not categorically a complaint of delay, I do accept that it is within my discretionary power to give further reduction especially when the defendant appears to have rehabilitated and moved on to another phrase of her life. 

15.However, I do not accept that the defendant only committed the offences out of desperation and love for her relatives.  I also do not accept that she did not personally profit from these crimes.  After all, the total sums involved amounts to over HKD$5 million.  And it lasted for almost 5 years and slightly less than a year respectively. 

16.Having considered all the mitigations and materials relied upon by the Defence, I find it necessary to take a starting point of 5.5 years for Charge 1 and 2 years and 3 months for Charge 2, in order to sufficiently reflect the gravity of the offences.  The guilty plea would bring them down to 3 years and 8 months and 18 months respectively.

17.I am prepared to reduce these sentences by 3 months for the mitigations.  A further 3-month of reduction is given for the consequences that the delay[2] (not unreasonable though)  has brought upon the defendant.  I see no further reduction being justified and an immediate custodial sentence is called for.

18.In light of the above, the sentence for Charge 1 becomes a term of 38 months’ imprisonment; for Charge 2, it becomes 12 months.

19.This case involves two separate victims and therefore I do not see fit to adopt a wholly concurrent sentence.  Taking into account the totality principle, I order that 6 months in Charge 2 to be consecutive to that for Charge 1, making it a total of 44 months’ imprisonment (ie 38 + 6 = 44).