HKSAR v. Tung Hon Yan

DCCC848/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 848 OF 2012

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Reasons for Sentence

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1.Defendant has pleaded guilty today to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210.

2.Between November 2007 and October 2010, defendant has pleaded guilty to stealing what is in effect $2.634 million.

3.The facts of this case show that it is a classic breach of trust scenario.  The defendant worked as an accounts clerk at a company called Touch Up Production Limited.  He worked there between 2004 and 2008.  He prepared cheques for the director, a Miss Wong, to sign.  And although from December 2008 he went to work at a different location for this director’s husband, he continued to work at Touch Up Production Limited as a part-time clerk. 

4.The defendant was trusted with the password of the safe at this company.  And over that period of time defendant stole 5 cheque books from the safe and forged the signature of PW1.  Over that 3-year period, 167 cheques were forged, cashed and, as I have said, the loss suffered is 2.6 odd million dollars.

5.This matter came to light on 12 October 2010 when a manager realized that there were some suspicious transactions.  The case was reported to the police the next day, 13 October.

6.On 15 October the defendant surrendered himself to Hung Hom Police Station.  Under caution, he made a full admission to the police.  He explained that he had stolen this amount of money using this method because he had a gambling addiction.  He stole this amount of money to either repay gambling debts or loans or pay his rent.  All debts stemmed from his gambling addiction. 

7.Defendant has pleaded guilty at the first opportunity which is his best mitigation.  He is 31 years old and until now previously had a clear record.  He now lives with his mother and sisters, but unfortunately his father passed away earlier this year.  His mother is not in good health, be it physically or mentally.  She has been dealt a big blow in the face of the defendant’s arrest and the death of her husband this year.

8.Since the defendant’s arrest, he sought counselling immediately for his gambling addiction and is sure he has managed to successfully quit gambling.  Also since his arrest, he has dedicated himself to being a filial son to his father who became very ill as well as a filial brother. 

9.I have seen many letters of mitigation presented to the court; all asks for leniency on his behalf.  I have seen a moving letter of mitigation from a counsellor of the Zion Social Service in relation to his previous gambling problem.  There are also letters from the defendant’s mother, sisters, classmate and other close family members.  All say he is remorseful, will accept his punishment but has turned over a new leaf, and all are confident he will not re-offend and gamble in the future.

10.Gambling like any addiction is very destructive and will ruin lives.  This defendant, I am sure, knows he must face his fate and punishment, but sadly as is usually the case, his family will suffer along with him.

11.Obviously in cases of this nature, the amount stolen is very relevant.  And according to the authorities of HKSAR v Cheung Mei Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, what guideline this court should consider relevant is where between 1 to 3 million dollars is stolen, a 3 to 5-year term of imprisonment would be appropriate.  Mathematically speaking, in this case a loss of $2.6 million would attract a 4-year-and-6-month starting point. 

12.I have considered the defendant’s plea, previous clear record, good mitigation put forward on his behalf and a genuine attempt to turn over a new leaf before his appearance in court and find there is reason that allows me to lower this starting point.  I will take a starting point of 4 years’ imprisonment.

13.The defendant is entitled to a discount of 16 months for his plea of guilty.  For this offence, he is sentenced to 2 years 8 months’ imprisonment.