HKSAR v. Lau Wai Kuen

DCCC 431/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 431 OF 2013

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Reasons for Sentence

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1.Defendant, you are convicted after trial of a single offence of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.I do not intend to repeat the facts, in my Verdict I dealt with what had happened exhaustively.  Suffice it to say that I convicted you of the theft of approximately $3 million over the period mentioned in the charge.  That theft occurred when you were the cashier of the company or restaurant that you stole from and they were your employers.

3.You are of hitherto clear record.  In view of your clear record and what appeared to be a somewhat complicated domestic situation, I adjourned the case for a Probation officer’s background report to assist me in the sentencing process.  And that report is now before me, I have considered it and taken it fully into account.  Mr Chau informs me on your behalf that you accept it as fair and accurate.

4.On your behalf, Mr Chau then entered mitigation.  Referring to the Probation officer’s report, he said that it confirmed you to be hardworking, industrious lady who came to Hong Kong and set up businesses in addition to your employment.  He made the point that you are not well-educated, only up to Form 3.  Of course your schooling would have been on the Mainland.  You have been and remain a loving and caring mother, sister and daughter.  Mr Chau produced a very moving letter written in English by your elder daughter who is 19 years of age on behalf of herself and your younger daughter. That letter confirmed the care and the love and support that you had afforded to your daughters, especially so after your husband deserted the family.  Mr Chau confirmed that present in court were your parents and your younger sister.  She, that is your younger sister, will care for your younger daughter during your inevitable incarceration.  They are present to show support and I take that into that account also

5.Mr Chau then turned to the offence itself, realistically accepting it to be a serious breach of trust and one that only an immediate sentence of imprisonment was appropriate.  Both prosecution and defence referred me to the sentencing guidelines of HKSAR v Lee Kwok Ho, Gary CA Cr App 210 of 2010.  Mr Chau referred to the sentencing bands mentioned therein and submitted that this fell within band C, the $1 million to $3 million band.  That band provides for imprisonment of 3 to 5 years.  I have to tell you that I agree with Mr Chau’s submission.  He then went on to urge me to impose a sentence closer to the 3 year limit rather than 5.

6.He then went on to make a further important submission, that is that you should be afforded a discount because of the delay in the prosecution.  You had been arrested on 12 January 2011 and the trial did not get underway until 5 August 2013, that in my calculation is 2 years and 7 months approximately.  It is self-obvious and he made the point that this would have placed you under great strain and presumably your family also. 

7.Mr Percy at my invitation took instructions and addressed the court on this point.  He gave an explanation for the lengthy period between arrest and trial.  He accepted that you had indeed been arrested on 12 January 2011 and on police bail until 3 May of that year.  The police then needed time to collect evidence from the documents from the bank, the company and from yourself.  This appears to be in order to calculate the exact figure that was missing.  You were then free for some two years while the police prepared the case and sought also, as I have said, to establish the amount of money that was missing.  During this period, they also were trying to investigate where the money had gone.  He mentioned the various amounts mentioned in the course of the trial and the charge itself.  He told me that finally the file was submitted to the Department of Justice in October 2012. The Department of Justice then called for further action on the file.  It seems between November of 2012 and March of 2013 the file was prepared for trial and you were finally charged formally on 30 April 2013. 

8.Mr Percy then with his customary fairness then went on to make a concession that was that the period of 2 years and 3 months from arrest to charge was a considerable time for an investigation in the circumstances.  Mr Chau thanked Mr Percy for that concession and adopted it into his submission. 

9.I turn now to the sentence.  This is of course a case of serious breach of trust by you.  You stole money from the company which employed you and of which you yourself held a small percentage of the shares. The total amount I found to be approximately $3 million.  In my opinion, it was impossible to say what the exact figure was, therefore I give you the benefit of the doubt, I place it within the range of 3 to 5 years’ imprisonment, in fact it was most likely below 3 million.

10.With reference to your personal circumstances, you are a lady of 46, separated from your husband who deserted the family around the time or shortly after the commission of the offence.  You are, and I say this with the greatest respect, of limited education.  However, I do note that you have a perfectly clear record.  I do accept that you emerge as a hardworking, industrious person who loves and cares for your two daughters. The effect of your imprisonment on the family will of course be devastating.  However, I have to say that the evidence, in my opinion, against you was totally overwhelming for reasons that I mentioned in my Verdict. 

11.Having said that, I do find that the company must shoulder some responsibility for what happened given the inertia of its senior shareholders, managers and directors.  As we heard in the evidence, PW1 at an early stage alerted the then managing director, Mr Ng Man-hay, that something was wrong.  As early as December 2009, she concluded and made it known to Mr Ng that at the very best you were not dealing properly with the money yet little was done to correct the situation or to investigate what was actually happening.  As time passed, PW1 was driven inevitably to the conclusion that you were stealing from the company.  This she made known to other senior officers after the death of Mr Ng, including his wife, yet it was not until December of 2010 that any decisive and positive steps were taken.  Mr Ng had died on 13 August of 2010, so there was a lapse of some further four months.  I have to say, that had the matter been addressed at an early stage, the loss to the company would have been considerably less.  The lack of action and supervision, whilst not excusing your dishonesty, certainly allowed it to flourish.  In my opinion, this has to be taken into account in assessing sentence. 

12.Therefore, taking this and all other matters, including the Probation officer’s report, the letter from your daughters and your hitherto good record and the support of your family, I take as a starting point in this case 3 years’ imprisonment, that is the bottom of the range.

13.Mr Chau submitted on your behalf that there should be a discount in this case due to the unjustified delay between initial arrest and the commencement of trial.  That is, as I have said, a period of approximately 2 years and 7 months.  I accept that delay must have caused you and your immediate family considerable and unnecessary suffering and anguish. However, simply because there is a delay does not automatically lead to there being a discount as the court has to conclude that was an unnecessary delay. It is obvious that some cases take that amount of time to investigate.

14.Mr Percy on behalf of the prosecution set out very clearly the reasons for that but did very fairly concede to the effect that this was a considerable period for the investigation.  I have given considerable thought to this aspect of the case.  Whilst the trial itself was lengthy, the facts themselves were not of the most complicated and I cannot see any good reason for the lengthy delay in this case.  Two years to further investigate and establish the exact figure is inordinate in my opinion.  The calculation itself was essentially done by PW22 under the supervision of PW1, so it is difficult to see that the police needed time to investigate this further.  There were essentially but two bank accounts to investigate fully, there were other bank accounts of course but there were two of the company and the documents that you were responsible for were essentially the daily cash record and plus the documents which were found.  Therefore, I do not find in all the circumstances that the period of two years for investigation was reasonable or warranted. 

15.You yourself did not contribute to this delay. However, I am fully satisfied that there was no malice on the part of the investigators, they simply took too long to do too little.  I am therefore satisfied that you were placed under unreasonable and unnecessary pressure by this and that to reflect that there should be a modest discount from sentence. That discount will be some 4 months.  You will therefore go to prison for 32 months.  As you recall, the starting point was 3 years.

16.And finally, I would like to record my thanks to Mr Percy for the prosecution and Mr Chau for defence for the help I have had during this case.