HKSAR v. Leung Chung Yan Joan

DCCC 199/2025

[2026] HKDC 880

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 199 OF 2025

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to 2 counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 and 2)  and 1 count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and sections 159G and 159J of the Crimes Ordinance, Cap 200 (Charge 3).

SUMMARY OF FACTS

2.The Amended Summary of Facts admitted by the Defendant are as follows:

Background

(1)  Ms Xu Suru Maggie (PW1), aged 54, is a housewife and has been living in Hong Kong since 2017. On 1 January 2023, PW1 employed the Defendant with a monthly salary of around HK$27,000 as a personal assistant through the recommendation of a friend. The Defendant’s employment contract was executed by the Defendant and the company owned by PW1’s husband.

(2)  As PW1’s personal assistant, the Defendant was responsible for handling PW1’s daily matters which included purchasing items as requested, collecting and translating PW1’s mail, including private and confidential letters. PW1 would at times authorize the Defendant to sign documents on her behalf, but only with PW1’s prior approval.

(3)  PW1 is the holder of a bank account numbered 053–2 61392–888 (Account)  with the Hongkong and Shanghai Banking Corporation Limited (HSBC). The Account was opened in 2014 and was used for PW1’s daily expenses, mortgage payment and payment of credit card invoices for which she has set up direct debit authorization with HSBC.

(4)  PW1 never used an ATM card with the Account. As PW1 did not know how to use the online banking system, she would personally go to a HSBC branch for all of her banking needs in relation to the Account. PW1 did not authorize any person to make any transfers from the Account without her knowledge.

(5)  In 2019, PW1 received a letter from HSBC containing a debit card for the Account. The debit card number was 5253-0813-8680-0445. PW1 never activated this debit card and it was securely placed in her bedroom at all material times.

Unauthorized Transactions

(6)  At around 2:05 pm on 5 February 2024, PW1 received three text messages on her telephone in relation to three failed transactions from a debit card with the last 4 digits numbered 6545. These three failed transactions were made with the merchant “SOGO Hong Kong” for a total of HK$282,445 failed debit against the Account (Charge 3).

(7)  Upon inquiries by PW1 with HSBC customer services, she found that a debit card numbered 5253-0811-3781-6545 was issued by HSBC to PW1 in March 2021 (Debit Card). PW1 never used nor authorized anyone to use the Debit Card (Charge 1).

(8)  Transaction records of the Account revealed that the Debit Card was in use since 15 May 2023. A total of 243 transactions (Transactions)  that were made using the Debit Card were made at 70 physical stores during the period from 15 May 2023 to 4 February 2024 (Offence Period). The Transactions amounted to a total debt of HK$4,677,455 from the Account (Charge 2). PW1 neither made nor authorize anyone to make any of those Transactions. The case was reported.

The VRI

(9)  At around 12:38 pm on 5 June 2024, the Defendant was arrested. In subsequent video-recorded interviews, the Defendant admitted under caution:

(i)  She found the Debit Card in 2023 when she was tidying PW1’s office. She got greedy and tried to make purchases of a few hundred dollars using the Debit Card. Later, she continued to make purchases using the Debit Card for around HK$200,000 to HK$300,000 per month totaling several million HK dollars;

(ii)  On 5 February 2024, she tried to make purchases using the Debit Card at a gold store located in the SOGO department store, but the purchases were unsuccessful. After the failed purchases, she feared that the bank might alert PW1. Later PW1 called her to ask whether she had used PW1’s card to make purchases. She threw away the Debit Card afterwards;

(iii)  She made 193 of the Transactions using the Debit Card;

(iv)  Some of the items seized from her office and her home were purchased by her using the Debit Card;

(v)  WhatsApp messages between herself and the staff of various shops were in relation to her making appointments for service or orders for goods and that she had used the Debit Card to purchase services and goods at those shops;

(vi)  She had sold items bought with the Debit Card to a secondhand store by first negotiating over WhatsApp and in person. Afterwards, she would receive payment by FPS to her bank account.

THE DEFENDANT’S BACKGROUND

3.The Defendant is 44 years old. She is married and lived with her husband. She received education up to Form 4 and has been working as a personal assistant since 2017. She has a clear record.

SENTENCING PRINCIPLES

4.There is no dispute that this case involved a breach of trust. The sentencing guidelines are set out in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017:

(1)  Over 15 million - 10 years or more;

(2)  3 to 15 million - 5 to 10 years;

(3)  1 to 3 million - 3 to 5 years;

(4)  250,000 to 1 million - 2 to 3 years; and

(5)  Less than 250,000 - under 2 years

5.The factors set out in R v Barrick (1985)  81 Cr App R 78 are also relevant in assessing sentence:

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

(2)  The period over which the fraud or the thefts have been perpetrated;

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

(4)  The effect upon the victim;

(5)  The impact of the offences on the public and public confidence;

(6)  The effect on fellow employees or partners;

(7)  The effect on the offender himself;

(8)  The offender’s own history; and

(9)  Those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

DISCUSSION

Circumstances surrounding the Offences

6.Counsel explained that:

(1)  PW1 and her husband used to run a large real estate business in the Mainland. They emigrated to Hong Kong in 2017;

(2)  The Defendant had been working for PW1 and her husband for about 5 to 6 years prior to her arrest (i.e. from about 2017). At the beginning, the Defendant mainly worked for PW1’s husband as his personal assistant, earning around $13,000 per month. With increased duties and responsibilities, the Defendant received increments in her salary over the years. Subsequently, the Defendant’s scope of work shifted towards serving PW1. In January 2023, an employment contract was formally executed between the Defendant and a company owned by PW1. The Defendant became PW1’s personal assistant with a monthly salary of around $27,000.

(3)  In 2023, the Defendant found PW1’s debit card when she was tidying PW1’s office. Out of greed and curiosity, the Defendant first tried to use the Debit Card for small purchases at grocery stores to see whether the Debit Card worked.

(4)  At that time, the Defendant was facing huge financial hardship, she was in debt in the amount of $400,000 to HK$500,000. She had taken out loans from loan sharks in around 2021 or 2022 to pay for her father’s medical expenses and to meet her family’s outgoings.

(5)  The Defendant was unable to resist the temptation and foolishly decided to use PW1’s Debit Card to make purchases for herself in order to relieve her financial pressure. She sold some of the goods in exchange for money to repay her debts.

7.Although the Defendant only signed a formal contract as PW1’s personal assistant on 1 January 2023, there is no dispute that:

(1)  the Defendant has been working for PW1 and her husband as a personal assistant since 2017;

(2)  The Defendant was the only personal assistant to PW1 and her husband prior to the offences;

(3)  HSBC issued PW1 with a debit card in 2019 but that debit card was never activated or used. It was kept by PW1 at all material times;

(4)  PW1 did not know how to use online banking services. She dealt with all her banking matters in person;

(5)  Someone called HSBC to apply for the Debit Card which resulted in its issuance in 2021;

(6)  PW1 was never aware of the existence of the Debit Card until the 3 failed transactions;

(7)  Since the Defendant was responsible for dealing with all of PW1’s correspondences, she would have been aware of the Debit Card when the same was issued and sent to PW1;

(8)  The Defendant alleged in the video-recorded interview that she used the Debit Card for only 193 transactions. She now admits that she was responsible for 243 transactions;

(9)  In the video-recorded interview, the Defendant asserted that she only used the Debit Card to purchase goods worth $200,000 to $300,000 per month. This was clearly incorrect. The average monthly amount spent in the Debit Card over the course of 8.5 months was over $550,000 per month;

(10)  The Defendant was not being honest in the video-recorded interview.

8.I do not accept the Defendant’s explanation that she found the Debit Card by accident. In the light of the above, the only and irresistible inference is that:

(1)  The Defendant applied for the issuance of the Debit Card in 2021;

(2)  The Defendant activated the Debit Card and used it;

(3)  The present offence was premeditated.

The Appropriate Starting Point

9.Counsel submitted that:

(1)  The Defendant was PW1’s personal assistant and was responsible for handling PW1’s daily matters. Counsel admitted that the degree of trust reposed in the Defendant was high;

(2)  The offences took place between 15 May 2023 and 4 February 2024 (ie over the course of 8.5 months);

(3)  The Defendant accepts that she had used the Debit Card to make purchases for herself;

(4)  The Defendant caused financial loss to PW1;

(5)  The present offences has no impact on the public or public confidence;

(6)  There are no fellow employees other than a chauffeur. PW1 employed a new personal assistant after these offences were discovered. There is limited impact on fellow employees;

(7)  The Defendant accepts that she has benefitted from the offences;

(8)  The Defendant has a clear record;

(9)  The Defendant indicated her guilty plea at the first available opportunity.

10.The Defendant has a clear record. However, a clear record is not a factor relevant generally to determining the starting point to be taken in serious criminal offences for which a deterrent sentence is required: Sentencing in Hong Kong 11^th Edition paras [7-5] to [7-6]; R v Chan Ka Choi [1988] 1 HKLR 530, 534 and HKSAR v Law Num Chun [2014] 6 HKC 606, 617.

11.The Defendant admits that she stole the Debit Card and used it for 243 transactions over a period of 8.5 months. In those circumstances, her previous clear record is wholly meaningless.

Starting Points

Charge 1

12.As explained above, the only and irresistible inference is that the Defendant applied for the issuance of the Debit Card and / or kept the Debit Card. She then proceeded to activate the Debit Card and used it.

13.In my judgment, the appropriate starting point is 3 years’ imprisonment.

Charge 2

14.The amount involved in Charge 2 is very substantial ($4,677,455). Counsel rightly conceded that the trust reposed in the Defendant by PW1 was high. This is a very serious breach of trust. Although the offences lasted for only 8.5 months, there were 243 transactions at 70 physical stores. The Debit Card was used to buy luxury items. This caused a loss of close to $4.7 million to PW1.

15.In my judgment, the appropriate starting point for Charge 2 is 6 years and 6 months (78 months).

Charge 3

16.In addition to $4,677,455, the Defendant tried to purchase items totaling $282,445 within one day (5 February 2024). In other words, the Defendant would have continued to commit further offences but for the failed transactions.

17.In my judgment, the appropriate starting point for Charge 3 is 2 years’ imprisonment.

MITIGATION

18.The Defendant has pleaded guilty at the first available opportunity. She is entitled to a one-third discount. The sentences for the 3 Charges are reduced to:

(1)  Charge 1: 2 years

(2)  Charge 2: 52 months

(3)  Charge 3: 16 months

19.Counsel submitted that the Defendant has a clear record and is extremely remorseful.

20.Firstly, even if the accused has a clear record, this may be a little if any relevance if he is guilty, not of a one-off instance of dishonesty but of dishonesty of an ‘ongoing nature’: Secretary for Justice v Schmitt [2008] HKCU 979 (CAAR 12/2006, 17 June 2008, unreported)  and HKSAR v Lam Ying Yu [2014] 2 HKLRD 895.

21.In HKSAR v Dos Passos Anthony Joseph[2002] HKCU 1202 (CACC 517/2001, 27 September 2002), where Cheung JA said that ‘in offences of this type where criminal acts are repeatedly being committed, it is wholly artificial to describe an offender as having a clear record, even though technically this may be correct’ [18].

22.A first offender who has been convicted of multiple offences cannot expect to be treated in the same way when sentenced as the first offender who has not: R v Yim Tak Wai [1967] HKLR 29; HKSAR v Law King Yip and Ors [2004] HKCU 1391 (CACC 369/2003: 14 October 2004, unreported); Shum Ming v R [1978] HKCU 8 (adopted in Secretary for Justice v Au Man Kei, Alex and Ors [2000] HKCU 625 (CAAR 2/2000, 11 August 2000, unreported); HKSAR v Leung Shuk Man [2002] 3 HKC 424, 427.

23.Secondly, the ‘one-third’ discount given for a timely guilty plea encompasses both a clear record and remorse. Such discount is taken to be the high watermark of the discount unless there are very special mitigating factors: HKSAR v Ngo Van Nam [2016] 5 HKC 231; HKSAR v Yan Wai Ming [2003] HKCU 264 (CACC 417/2002, 26 February 2003, unreported); Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751; HKSAR v Lee Cho Keung and Ors [2004] 4 HKC 179, 189; Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139, 144.

24.The discount for a guilty plea already has built into it an allowance for good record where there is one: HKSAR v Yung Wai Siu [2001] 1 HKLRD 277, 279. A clear record is not so much a mitigating factor as a “neutral feature” in the case: HKSAR v Wen Zelang [2006] 4 HKLRD 460, 465. The Court of Appeal has repeatedly ruled that an additional discount for a clear record in the absence of exceptional circumstances is wrong in principle: Secretary for Justice v Cheng Tsz Hin [2020] 1 HKC 576 and Secretary for Justice v Chau Wan Fun [2007] 1 HKC 423, 428.

25.Further, the alleged good character in the present case simply refers to no more than an absence of previous convictions. This is not a basis for an additional discount: HKSAR v Wong Kam Shing, Jackie [2010] 4 HKC 580, 584. The simple discharge of duties in a proper manner does not constitute what is to be regarded as positive good character: HKSAR v Leung Ping Nam [2007] 5 HKC 413, 427; HKSAR v Chung Ka Hung [2010] HKCU 738 (CACC 349/2008, 31 March 2010, unreported).

26.Counsel referred to the letter from the Defendant, her family and friends.  The Defendant’s family and friends all described her as kind and filial. When faced with serious offences, the Defendant’s personal and family background carry little if any weight in mitigation. Counsel stated that the Defendant’s grandfather passed away during the Defendant’s remand. The Defendant is the author of her own wrong.

27.Counsel further submitted that the Defendant has learnt a bitter lesson and is unlikely to re-offend.

28.In R v Barrick (1985)  81 Cr App R 78, 81, Lord Lane CJ said:

“The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family …”

29.Counsel submitted that at the time of the offences, the Defendant was in serious debt to loan sharks. It is trite law that financial difficulties is not a mitigating factor, no matter how desperate or tragic the situation: R v Kwok Yau Fat (CACC 537/1996, 28 February 1997, unreported); Attorney General v Yan Chun Fong [1993] 1 HKCLR 42, 45; HKSAR v Lee Man Wai [2006] HKCU 106; R v Ying Lai Chau [1990] 1 HKC 218 and Attorney General v Shek Sui Tai [1989] 1 HKLR 178, 179.

30.Counsel informed the Court that the Defendant has taken a number of courses during remand (including courses about nutrient soups and Acupoints and nutrition). This does not amount to mitigation.

31.In short, apart from her timely guilty plea, there are no other mitigating factors.

TOTALITY

32.I am required to consider the totality principle. The total amount involved in Charges 2 and 3 is close to HK$5,000,000. In my judgment, the appropriate overall starting point is 7 years’ imprisonment. This is reduced to 56 months for the Defendant’s guilty plea. Accordingly, the Defendant is sentenced to:

(1)  Charge 1: 2 years

(2)  Charge 2: 52 months

(3)  Charge 3: 16 months

33.I order that the sentences for Charges 1 and 3 be served concurrently, but 4 months of which are to be served consecutively to Charge 2 (i.e. 56 months)  imprisonment.