COURT: The defendant has pleaded guilty to seven counts of theft, contrary to section 9 of the Theft Ordinance in the Magistrate’s Court and is committed to this court for sentence.
Following an inspection in March 2018 by the Securities and Futures Commission (“SFC”), financial irregularities were uncovered in one Wan Kiu Investment Company Limited (“Wan Kiu”), which was managed by the defendant at the time. Wan Kiu was a small securities company trading in shares and stocks for its clients. It had around 79 clients and most of them were old clients and friends of either the defendant or her late father.
The case was then referred to the police for further follow up. Subsequent investigations revealed the fact that between October 2011 and October 2019, the defendant sold various shares and stocks of her clients without their permission. Details of the defendant’s dealing can be found succinctly in the particulars of each charge. In the course of the misappropriation, false documents were also prepared to cover her track.
A substantial part of the proceeds of those unauthorised sales went to repay debts incurred by the defendant’s late son for his failing insurance business. As a result, over 23 million worth of shares and stocks had been “stolen” by the defendant as of October 2019. The defendant was arrested by police in March 2020.
The defendant is 88 and has a clear record. She received university education. On the last hearing, sentence was adjourned pending one suitability report for a community service order. The defendant’s background has been set out meticulously by the probation officer in her report to which I do not think I need to repeat.
I do not think that anyone can dispute that the defendant’s acts of misappropriation can be described as not serious. Acts involved the “stealing” of substantial amount of shares and stocks of her clients over a period of 8 years. In addition, the defendant acted in breach of the trust her lifelong friends and clients placed upon her. In short, this is a serious breach of trust case.
In the normal course of event and in a case like the present one, an immediate custodial sentence is warranted and inevitable. However, in this particular case, an exception can be made out. The most extraordinary feature of the case is the fact that the defendant, through her own financial resource and the resources of her family and friends, has managed to repay all the “stolen proceeds” to her clients. I say this because as I have presided over numerous commercial fraud cases both in the District Court and in the High Court, this case is the only case full restitution with such a huge amount has ever been made. This, to a certain extent, also reflects the defendant’s genuine remorse.
In addition, some of her victims/clients wrote in pleading for leniency from the court. I accept without hesitation that the reasons driving the defendant to commit all these attributed to her son’s failing business. As a loving and caring mother, her acts, albeit illegal, are understandable.
As mentioned above, the crimes committed by the defendant are serious ones. However, in view of the extraordinary feature of the case, I think I can make an exception of this case.
Ms Barbara Wong, junior counsel for the defendant, this morning has filed a supplemental submission, drawing to my attention the case of the Secretary for Justice v Leung Hiu Yeung and Others, CAAR 3/2016, where the Court of Appeal discussed the sentencing principles on imposing community service order. I am grateful for Ms Wong’s assistance on that as I am not as knowledgeable in law or thorough in research legal principles as she claims I possess.
The Court of Appeal in that case stated in paragraph 88 the general sentencing principle to which I find it helpful and again shall not repeat. The Court of Appeal then in paragraphs 99 to 112 stated the circumstances under which a community service order could be considered as suitable. Applying those circumstances/principles to the present case, the defendant fulfils five out of the six criteria. The notable absent criteria, namely, be in employment, due to the defendant’s age cannot be an applicable criteria in the present case.
The probation officer finds the defendant suitable to perform community service. The probation officer is also of the opinion that in view of the defendant’s age and health, a low to medium duration of community service may be beneficial to mend her past mistakes. In view of all that, the defendant is therefore ordered to serve 160 hours of community service. Given the maximum hour one could perform community service in one week, this will take about 20 weeks to complete.
All right. Madam Sham, I am going to sentence you to serve 160 hours of community service. You must perform the work assigned to you to the satisfaction of the probation officer. As a matter of legal requirement, I have to warn you that if you fail to do so diligently, you are liable to be brought back to this court to be resentenced on those seven charges. Are you willing to perform the 160 hours of community service?
ACCUSED: Yes, your Honour. Thank you, your Honour.
COURT: All right. Okay.
