HKSAR v. Lam Pui Kit

DCCC751/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 751 OF 2011

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant enters a plea of guilty to two charges of ‘Theft’, laid against him under section 9 of the Theft Ordinance, Cap.210.

2.The facts of the case to which the defendant agrees are as follows.  The defendant was a university graduate.  At the time of the offences, he was an Associate Marketing Director of Australia and New Zealand Banking Group Limited, responsible for a rebate campaign in which the bank would present selected customers with gift vouchers to enable them to purchase jewellery.

3.Between 8 July 2010 and 13 January 2011, the defendant obtained a total of 17 cashiers’ orders with which to acquire gift vouchers from two jewellers, namely, Chow Sang Sang and Chow Tai Fook, gift vouchers worth a total of $1,119,000 (Charge 1) and of $49,000 (Charge 2), respectively.  Instead of presenting these vouchers to selected customers, the defendant used them on numerous occasions to purchase 21 Rolex watches and a diamond ring, which the defendant resold the day after their purchase to repay his debts.

4.The police arrested the defendant on 4 April, 2011, and recovered from his home 15 gift vouchers issued by Chow Sang Sang, the face value of which totalled $37,500, being part of the vouchers the defendant had misappropriated.  Subsequently, the police managed to trace 16 Rolex watches, which the defendant had sold to others for $750,000.

5.The court finds the defendant guilty as charged.  The defendant has had a clear record prior to his current conviction.

6.In mitigation, the defence puts forward the following matters for the court’s consideration.

7.The defendant is 34 years of age.  Having worked in several banks after his graduation in 2000, he was promoted to the post of Associate Director in ANZ, earning an income of $46,000 a month.  With his knowledge in finance, he invested his parents’ savings on their behalf, but unfortunately lost the money.  In mid-2010, the defendant’s younger brother was to get married and his parents asked for the savings back.  Unwilling to reveal the harsh truth to his parents or to seek help from his girlfriend, the defendant borrowed heavily from finance companies.  The pressure of repayment had eventually become so great that it led to the defendant’s downfall from grace.

8.The defence puts forward a bundle of documents for the defendant’s pleas in mitigation.  The documents show that the defendant has been extremely popular in school, and he did well in university.  He has many lifelong friends, who make cogent pleas for leniency on his behalf.

9.At home, the defendant’s parents have had high hope of him and were shocked by the defendant’s arrest and prosecution.  They are aged and are in poor health, but claim responsibility for the defendant’s fall; they thought they failed in proper discipline of him.

10.The defendant has written a letter to court, in which he said, and I quote:

“Time goes by. I am now living with regret every day of what I have done. I have determined to start with a new slate and hope to compensate all the losses that I have brought. During the internal investigation, I admitted to the bank for my fault and tried to suggest all possible compensations and remedial actions.

My foolish act has blown my career all at once and I would not be able to work in the banking and finance industry in the future.

I have also brought devastating effect to my family, as I am the core breadwinner and my parents are suffering from chronic illnesses like grossly enlarged prostate and arthrosis ache, which require regular medication. The loss of my income has thrown my family on the edge of financial difficulty.

During the past few months in the Lai Chi Kok Reception Centre, I am so grateful to my parents, sister, brother, girlfriend and good friend to take turns to come to visit me every day. Ever since the outbreak of the incident, none of them has condemned me severely and they only blame me for not telling them my difficulty, resulting in such profound mistake. Now, I can only talk to them behind bars and that makes my heart ache.

Indeed, I had planned how to celebrate the Mother’s Day with my family and girlfriend a week before the arrest dated 4 April.

However, because of my foolish and selfish mistake, the plan could not be realised. On Mother’s Day, I could only say, ‘Happy Mother’s Day’ to my mother over the cold handset behind bars. The tears welled up both of our eyes. I could do nothing but to gaze at her walking slowly away from the reception centre.

In the past five months, I know well that the days of all my family members and girlfriend are so tough and hard. I am truly sorrowful and regret very much of what I have done. I have not only ruined the trust of my superior and my close ones; I have also put the burden on my friends and family. My parents even postponed their operations after the announcement of the verdict. In addition, my sister, brother and girlfriend have abandoned their work and families to help me settle the case.”

11.Finally, counsel for the defendant submits that the defendant has by his own act thrown away his career and his future.  There is little hope of restitution in the defendant’s situation.  Fortunately, the impact of the defendant’s criminal act on the bank, a financial institution, would not have been as great.

12.The defendant has admitted his guilt to the bank, has repeated his admissions to the police, and finally, affirms his full remorse by pleading guilty to the charges.

13.Given the defendant has had a clear record prior to his current conviction, counsel for the defence asks the court to adopt as low a starting point as the circumstances of the offences and the pleas in mitigation would allow.

Discussion

14.The defendant occupied a position of importance in the bank and was in charge of the rebate campaign by which a considerable amount of money was entrusted to him for disposal, but instead of faithfully applying the funds for the bank’s benefits, the defendant breached the high degree of trust the bank had in him and misappropriated the money under the guise of the campaign of which he was in command.  The bank is not the sole victim to the defendant’s crime; he has dragged in others when he sold the Rolex watches to the two watch shops.  It was inevitable that a police enquiry would have been conducted into the two shops.

15.Hong Kong is essentially a city of commerce. The success or otherwise of Hong Kong depends on its ability to provide an environment conducive to trade and commercial activities.  Thefts from employers, particularly those committed by offenders occupying a position of trust or in whom the employers have placed a high degree of trust, undermine Hong Kong’s ability to do so.  A deterrent sentence is called for.

16.There is a sentence guideline in respect of thefts committed in breach of trust situations (HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017).  For offences involving a total amount between $1,000,000 and $3,000,000, the sentence range should be between

17.In view of the defence’s pleas in mitigation, which are most eloquently put before the court, the court agrees that the material placed before the court is such as would allow the court to adopt the lowest starting point possible.

18.An overall starting point of three years would adequately reflect the criminality of the two charges.

19.In all the circumstances, the court would adopt a starting point of three years’ imprisonment for Charge 1 and would, in view of the defendant’s clear record and guilty pleas, reduce it by one-third to one of two years’ imprisonment.  A starting point of twelve months would be appropriate for Charge 2, which is likewise reduced by one-third to one of

20.Having considered the totality principle, the court orders that the sentences for Charges 1 and 2 should run concurrently, resulting in a sentence of two years’ imprisonment.

Order

21.The defendant is sentenced to a term of imprisonment of two years.