HKSAR v. Stuart Hamish Coombe
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DCCC 110/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 110 OF 2009 ________________________
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__________________ Reasons for Sentence __________________ The charges and facts 1.The Defendant pleads guilty to 10 charges of theft of his employer’s monies of HK$9,591,010 in total between 10 November 2005 and 25 March 2008. 2.The breakdown is as follows:
3.At all material times, he was the Managing Director of the Jeanswear Licensing Department of VF Asia in Hong Kong. VF Asia had a company bank account maintained at Citibank N.A. Hong Kong. He was one of the authorised persons of VF Asia for the issue of company cheques from that account. After his resignation in June 2008, his successor discovered that he had authorized payments of HK$9,591,010 in total between 10 November 2005 and 25 March 2008 into a company called Harmony Inc. Limited (“Harmony”) based on invoices submitted for payment by Harmony. 4.He was in fact the sole director and shareholder of Harmony, which had no business transactions with VF Asia. Harmony had no employees. Its registered address was the same as his home address. Its invoices bore an address occupied by an unrelated company. The sums stolen ranged between a high of HK$1,560,000 and a low of HK$98,000. 5.Upon arrest and under caution, the Defendant exercised his right of silence. Mitigation put forward 6. The Defendant is now 39 years of age. He was married but now faces divorce proceedings. He has 2 daughters, aged one and two respectively. He was born in Australia but has become a Hong Kong permanent resident. He received education in Scotch College in Australia. He worked in “Nike” between 1991 and 1997. He was the Sports Marketing Manager of Adidas in 1998. He joined VF Asia in 2004 as the Managing Director of Jeanswear Licensing in Hong Kong. In 2008, he resigned from VF Asia to work for “Calvin Klein”. He is presently unemployed. . 7. The initial purpose of setting up Harmony was to bring elite sports stars to Hong Kong to feature for the promotion and advertisement activities. However, greed took the upper hand and Harmony became its instrument. Out of the crime proceeds, he paid the tax for Harmony and purchased a new car. He put the remaining sum into an equity fund held in his wife’s name. After April 2007, he had determined that it was time to come to an end. Misfortune had it that in early 2008, his parents were in dire need of funds to save their wine plantation in South Australia as a result of the severe drought. He did it again to pay for their bank loans. 8.The money stolen was around HK$9.6 million. The Defendant has already repaid VF Asia in the sum of HK$3.2 million. His share, probably a half share, in the matrimonial home at Tregunter Path, has been frozen in the civil suit (HCA 2160/2008) taken out by VF Asia in the recovery of the stolen money. According to the latest valuation, albeit done a year ago, the property was worth HK$2.2 million. The outstanding mortgage loan is now $11 million. If he actually gets a half share in it, there will be a sum of HK$5.5 million to pay to VF Asia. In that scenario, VF Asia will have recovered HK$8.7 million in all. The loss suffered will be HK$0.9 million, excluding interest. This has to be regarded as very substantial restitution. 9.His counsel submits that each pair of charges, namely 1st and 2nd charges, 3rd and 4th charges, 5th and 6th charges, 7th and 8th charges, as well as 9th and 10th charges relate to the same act of stealing though the money was paid out on a separate date. Each pair of charges should be subject to a concurrent sentence. Principles of sentence Breach of trust 10.In HKSAR v Cheung Mee Kiu CACC 99/2006, the Court of Appeal laid down sentencing guidelines for theft involving breach of trust as follows:
Concurrent and consecutive sentences 11.In Attorney General v Cheung Pit-yiu CAAR 11/ 1988, Cons VP explained the nature of concurrent sentences:
Totality 12.In R v McKechan [2004] EWCA Crim 212, David Clark J said totality was a “principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending”. 13.In HKSAR v Zhen Futing Cr App 509/2003, the applicant was charged with two offences of possession of arms without a licence, two of possession of offensive weapons, and one of resisting a police officer in the due execution of his duty. Stock JA said, at para. 18, that:
The sentence I pass 14.I accept defence counsel submission that each pair of charges, namely 1st and 2nd charges, 3rd and 4th charges, 5th and 6th charges, 7th and 8th charges, as well as 9th and 10th charges, relate to the same act of stealing and warrant a concurrent sentence. Based on the guidelines in Cheung Mee Kiu (supra), I take the respective starting points as follows:
15.I also give him the usual one-third discount. The sentences after such discount are as follows:
16.Because of the partial restitution, I give him a discount of 4 months for each charge due to the partial but very substantial restitution. There are no other mitigating factors. The sentences shall be as follows:
17.On totality, I make the final adjustment as follows:
18.The total length of imprisonment is 4 years.
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Cases cited in this judgment