HKSAR v. Tam Shiu Kei, Samuel

DCCC233/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 233 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to 4 charges of "Theft". The offences took place between June and August 1996. The defendant had stolen an approximate total sum of $3.2 million.

Summary of Facts

2.At the material times, the defendant was employed as a conveyancing clerk by a law firm in Hong Kong. He handled re-mortgage of real properties.

3.The modus operandi in all 4 charges are almost identical. The defendant submitted to the firm's account clerk payment vouchers containing particulars of fictitious re-mortgage clients. Without knowing the falsity in the payment vouchers, the account clerk believed that the payments were legitimate release of the re-mortgage sums to the firm's clients. She therefore prepared cheques in accordance with the false particulars and submitted them to one of the signing partners for signatures.

4.On the respective offence dates, the defendant fraudulently obtained from the firm 4 cheques in the sums of $168,000 (1^st Cheque), $1,281,847.53 (2^nd Cheque), $823,000 (3^rd Cheque) and $968,338.71 (4^th Cheque).

5.The 1^st Cheque was dated 25 June 1996 and was made payable to LAI Wai-leung. It was deposited into LAI's bank account. Upon Police enquiry, LAI admitted that the defendant gave him the cheque for settling a debt. LAI claimed no knowledge of the defendant fraudulent practice in obtaining the cheque. This is Charge 1.

6.The 2^nd Cheque was dated 15 July 1996 and was made payable to CHEUNG Kam-ming. It was deposited into CHEUNG's bank account. Upon Police enquiry, CHEUNG admitted that the defendant gave him the cheque for settling a debt. CHEUNG claimed no knowledge of the defendant fraudulent practice in obtaining the cheque. This is Charge 2.

7.The 3^rd Cheque was dated 6 August 1996 and was made payable to TA Shiu-ke. It was deposited into the defendant's bank account. The original cheque retrieved from the bank revealed that the name of the payee had been altered to the defendant's. This is Charge 3.

8.The 4^th Cheque was also dated 6 August 1996 and was made payable to TAN Shi. It was deposited into the defendant's bank account. Similar to Charge 3, the original cheque retrieved from the bank revealed that the name of the payee had been altered to the defendant's. This is Charge 4.

9.The defendant left Hong Kong for the United States on 7 August 1996. He was put on the Stop List on 21 August 1996. He was recently located in California and extradited back to Hong Kong.

Mitigation & Sentence

10.The defendant is now 45 and has a clear record. His counsel Mr. CHONG has described in details the story of the defendant's life since he fled Hong Kong in 1996.

11.Mr. CHONG submitted that the defendant committed Charges 1 and 2 as a result of his gambling habit. At that time, the defendant had a gambling debt in the region of $200,000 to $300,000. The money stolen in Charge 1 was indeed for repaying a debt owed to LAI, who was the defendant's schoolmate. Regarding Charge 2, the defendant had an agreement with CHEUNG, whom he met through LAI, that CHEUNG would give him back the money after cashing the 2^nd Cheque. Unfortunately, CHEUNG disappeared. The defendant located CHEUNG later on but CHEUNG refused to return him the money. The defendant saw no way out and decided to take some money to flee to the States. So he committed Charges 3 and 4.

12.In the States, the defendant moved from one place to another and was under constant emotional stress. In October 2001, he married his 2^nd wife, who is a U.S. citizen, and they now have 2 sons (respectively 6.5 and 2 years old). In 2008, the defendant tried to apply for citizenship and discovered that he was wanted for the present case in Hong Kong. The defendant did not run away and was later arrested pending extradition.

13.Mr. CHONG further submitted that the defendant's eldest son experienced the trauma of opening the door for the U.S. Marshals and watching them taking the defendant away. The boy now thinks that he has done something very wrong and blames himself for letting the cops into the house.

14.The current sentencing guidelines for theft involving breach of trust are set out in HKSAR v CHEUNG Mee Kiu [2006] 4 HKLRD 776. In that case, the Court of Appeal held that the sentencing guidelines laid down in R v Clark [1998] 2 Cr.App.R. 137 are applicable in Hong Kong and converted the Clark bands into Hong Kong dollars for easy reference.

15.Charges 1 to 4 in the present case took place in 1996 even before the English decision in Clark. The pre-Clark sentencing guidelines can be found in R v Barrick (1985) 81 Cr.App.R. 78. In fact, Clark is an attempt to take cognisance of inflationary values since Barrick which was heard in 1985 so as to ensure that the monetary factors which are weighed in determining an appropriate sentence are kept in line[1].

16.I have compared the guidelines laid down in Barrick, Clark and CHEUNG Mee Kiu. I have also taken into consideration of the exchange rate between British Pound and Hong Kong Dollar during the offence period. According to the information I have obtained from the internet, the average exchange rate between June and August 1996 was about HK$12 to ￡1, which is similar to the rate adopted by the Court of Appeal in CHEUNG Mee Kiu.

17.In my view, for theft of a total of HK$3.2 million in 1996, the appropriate overall starting point should be 4.5 years imprisonment. In view of the close proximity of the offence dates, I will apply a global approach to reflect the overall criminality in all 4 charges. Hence, for each charge, I adopt a starting of 4.5 years. One-third discount is given for the guilty plea, reducing the sentence to 3 years. I am told that the defendant was detained in the States for about 6 months prior to extradition. I will further reduce the sentence for each charge by 6 months, arriving at a final term of 2.5 years. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence I pass for each charge is 2.5 years. I order them to run concurrently. In other words, for all 4 charges, the total prison term is 2.5 years.