HKSAR v. Tam Chun Fung
Read the full judgment text of HCCC 348/2025 on BabelCite. This High Court CFI judgment was delivered on 24 April 2026.
Cites 3 cases
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HCCC 348/2025 [2026] HKCFI 3295 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 348 OF 2025 -----------------
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--------------------------------- Transcript of the Audio Recording
COURT: You have pleaded guilty to five counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210. The charges concern the theft of choses in action, namely debts owed by the Bank of East Asia, Limited to your employer, DSL Holdings Limited (“DSL”). The amounts involved and the periods of offending are as follows: Charge 1: HK$965,000 between 7 August 2017 and 24 January 2018; Charge 2: HK$$2,250,000 between 1 April 2019 and 31 March 2020; Charge 3: HK$4,025,226 between 6 April 2020 and 12 March 2021; Charge 4: HK$2,800,443 between 6 April 2022 and 30 March 2023; Charge 5: HK$5,611,948 between 17 April 2023 and 29 February 2024. The total amount stolen across all five charges is $15,652,617. The Facts DSL is a party products and stationeries design company established in 2003, which mainly exports its products to the United States. DSL maintained a company bank account with the Bank of East Asia (“BEA”) of which PW1, a director and shareholder of DSL, was the sole signatory. The defendant joined DSL on 7 May 2012 and worked under the supervision of PW1. He was the only staff of the Accounts Department in DSL responsible for the preparation and safekeeping of all accounting records, as well as cheques. At the end of March 2024, when PW1 informed the defendant that he would be terminated due to his unsatisfactory performance, the defendant admitted to PW1 that he had continuously misappropriated the company funds. The defendant made further admissions in April 2024 and told the company the manner in which the money was misappropriated. On 10 April 2024, defendant repaid HK$130,000 to DSL and made further admission and expressed remorse for his misconduct. Between August 2017 and February 2024, the defendant made a total of 419 transactions totalling HK$15,652,617 from DSL’s BEA account by forging PW1’s signature to issue cheques. He withdrew the money by cash cheque withdrawals or by depositing the cheques into his personal accounts held with the BEA, Hang Seng Bank and Bank of China. The 39 transactions under Charge 1, 79 under Charge 2, 85 under Charge 3, 87 under Charge 4, 129 under Charge 5 are set out in detail in the Summary of Facts. Of these 419 transactions, the defendant recorded 288 of them, totalling HK$10,020,669 in DSL’s accounting records as payments for purchasing materials or settling payments to various suppliers of DSL. PW1 confirmed that all the signatures appended on the cheques were forged and had no knowledge of those transactions. PW2, marketing manager of DSL, confirmed that the 288 questionable records did not represent genuine business transactions. PW3, the incumbent account supervisor who joined DSL following the defendant’s dismissal, discovered nine fraudulent invoices and receipts within DSL’s computer system previously used by the defendant. PW6, a director and shareholder of one of the purported suppliers, confirmed that receipts purportedly issued by the company were falsified. The defendant was arrested on 5 September 2024 and admitted the offences. Background and Mitigation The defendant is 48 years old and single. He has no previous criminal convictions. His mother, aged 76, was living with him at the material time. His father, a construction worker, passed away when the defendant was a teenager, and the family thereafter relied on Comprehensive Social Security Assistance. The defendant studied diligently and relying on student loans and part-time jobs, eventually obtained a Bachelor’s degree in Accounting while working concurrently. Prior to his arrest, his monthly salary was HK$28,500. In mitigation, counsel for the defendant submitted that the defendant is an introvert and is not good at making friends. He rarely shared his feelings with his family members. Feeling lonely, he resorted to gambling and met a girlfriend who was a sex worker. His girlfriend asked him for financial assistance. Hence, he committed the offences without considering the serious consequences. Counsel also submitted that the defendant is deeply remorseful and that his arrest was the direct result of his voluntary and frank confession to his employer. Counsel submitted that DSL only became aware of these offences following the defendant’s confession. The defendant has tried his best to make restitution by repaying HK$130,000 to DSL. Counsel further submitted that the defendant has full support from his family, including his mother and brother, and the chance of reoffending is extremely low. Counsel for the defendant agreed that this is a case involving breach of trust and that the sentencing principles established in HKSAR v Cheung Mee Kiu and HKSAR v Ng Kwok Wing are applicable. Counsel relied on HKSAR v Leung Chin Wai Wilson [2021] HKCA 1785 for the proposition that a willingness to make restitution, even if not full restitution, is a mitigating factor. Letters in mitigation from the defendant have been placed before and hence considered by this court. Sentencing Considerations The maximum sentence on conviction upon indictment for each single offence of theft is 10 years’ imprisonment, see section 9 of the Theft Ordinance, Cap. 210. The defendant was the sole member of the Accounts Department of DSL when he committed each of the five thefts. He was responsible for the preparation and safekeeping of all accounting records and cheques. In doing so, he was in a position of very high trust reposed in him by his employer and the breach of that trust makes his dealing considerably more culpable. I bear in mind the factors identified in Barrick, which are relevant to sentencing in cases of breach of trust, including the quality and degree of trust reposed in the offender, the period over which the offences were committed, the use to which the money was put, the effects on the victim, and the personal mitigation of the defendant. I have considered the sentencing guidelines set out in R v Clark, as adopted in Hong Kong dollars by the Court of Appeal in Cheung Mee Kiu and subsequently revised by Ng Kwok Wing. The revised Ng Kwok Wing bands are as follows:
I bear in mind the sequential evaluation approach endorsed in the Secretary for Justice v Nones Carmelita Galay [2022] HKCA 1081, that each repeated offence is a matter to be taken into account. I further note that the Court of Appeal in Nones observed that the sentencing court is bound by the head sentence of 10 years’ imprisonment for a single offence of theft. Where some sums involved are exceptionally large, consecutive sentences across multiple charges may be called for to properly reflect the totality of the offending. Individual Starting Points I am grateful for Ms Lai’s assistance in producing a chart of the relevant starting points. Charge 1, HK$965,000. By arithmetic interpolation, the starting point is 35 months. Charge 2, HK$2,250,000. By arithmetic interpolation, the starting point is 51 months’ imprisonment. Charge 3, HK$4,025,226. By arithmetic interpolation, the starting point is 65 months. Charge 4, HK$2,800,443. By arithmetic interpolation, the starting point is 57 months. Charge 5, HK$5,611,948. By arithmetic interpolation, the starting point is 73 months. Culpability of the defendant I identify the following aggravating factors in the present case. First, the degree and quality of trust reposed in the defendant was very high. He was the sole staff member of the Accounts Department and was entrusted with the management of all accounting records and cheques. PW1, the sole signatory of the company’s bank account, relied on the defendant in the discharge of these responsibilities. Second, the offences were premeditated and sophisticated. The defendant forged PW1’s signatures on cheques, created false accounting entries to disguise the misappropriated funds as payments to suppliers, and fabricated invoices and receipts to withstand scrutiny. This was not impulsive or opportunistic offending; It was carefully planned and executed. Third, the offending spanned approximately six and a half years, from August 2017 to February 2024, across 419 separate transactions. The defendant committed five groups of thefts. Fourth, the stolen money was used for gambling and maintaining a girlfriend, which does not attract any sympathy from the court. Mitigating Factors The defendant pleaded guilty at the earliest opportunity, for which he is entitled to a full one-third discount. I note that the defendant voluntarily confessed his crimes to PW1 on 28 March 2024, before any investigation had been initiated. DSL only became aware of the thefts as a result of his confession. I accept that this is a factor that distinguishes the defendant from those who are caught by the vigilance of others or through audits. On the other hand, the duration of the offence and his confession only came about when the defendant was told about his unsatisfactory performance, to a certain extent militating against his conviction. In these circumstances, I will exercise my discretion to reduce the overall sentence by a further 2 months on this account. As for the partial restitution of HK$130,000, I note that this represents less than 1 per cent of the total amount stolen. Counsel for the defendant relied on Leung Chin Wai Wilson for the proposition that the willingness to make restitution is a mitigating factor. I accept the principle, but the amount repaid in the present case is negligible in comparison to the total loss of over HK$15.6 million. I will exercise my discretion to reduce 2 months from the overall sentence on this account. As for the personal and family circumstances of the defendant, including his difficult upbringing and family responsibilities, the Court of Appeal has repeatedly stressed that such matters carry little weight where serious offences involving breach of trust are concerned. The defendant’s clear record is noted. However, as the Court of Appeal held in Nones, one-third discount for a timely guilty plea is a high watermark, and remorse and a previous clear record are subsumed in such a discount. I do not give any additional discount on these bases. Totality The total amount stolen across all five charges is HK$15,652,617. This falls within the band (a) of the Ng Kwok Wing guidelines, attracting a starting point of 10 years or above. The amount is at the lower end of this band, being only marginally above HK$15 million threshold. However, I bear in mind the prolonged duration of the offending (approximately six and a half years), and the very large number of transactions (419), the sophisticated concealment measures, and the high degree of trust that was abused. On the contrary, defence submitted and the prosecution agreed that the offences can be considered as a continuing offence with a stolen amount of slightly over HK$15 million. I have a regard to the comparable authorities. In Nones, the Court of Appeal on review adopted a global starting point of 10 years and 6 months for HK$14.6 million, stolen over 15 months. Having regard to the amount involved and the overall criminality in the present case, and bearing in mind that the total sum of HK$15,652,617 is at the lower end of band (a), I adopt a global starting point of 10 years and 3 months, namely, 123 months. After one-third discount for the defendant’s timely guilty plea, the overall notional sentence is 82 months. After the further reduction of 2 months for the defendant’s voluntary confession and the extra 2 months for the partial restitution, the total sentence is 78 months. I have stood back and considered the sentence as a whole. The sentence is undoubtedly severe. However, having regard to the seriousness of the offences and the abuse of trust over such a long period of time, I am satisfied that the sentence is fair, just and balanced to the offences as well as to the defendant. Sentence After the one-third discount, the sentences for each charge are as follows: Charge 1: 23 months’ imprisonment; Charge 2: 34 months’ imprisonment; Charge 3: 43 months’ imprisonment; Charge 4: 38 months’ imprisonment; Charge 5: 48 months’ imprisonment. The sentence on Charge 5, that is 48 months’ imprisonment, shall form the base. 30 months of Charge 3 shall be served consecutively to Charge 5. The sentences on all remaining charges shall be served concurrently with the partly consecutive sentences on Charges 3 and 5. Defendant, you are therefore sentenced to a total of 78 months’ imprisonment.
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