HKSAR v. Pang Ka Keung

DCCC 940/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 940 OF 2013

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

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

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

Reasons for Sentence

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

Charges

1.The defendant pleads guilty to the following charges:

Charge	Date of offence	Offence	Subject-matter	Party affected
1	11/11/2008 – 19/10/2012	Theft	$425,664.9	Cheung Yau-kwong
2	26/5/2009	Using a false instrument	AIA’s Request Form	AIA
3	7/12/2009	Using a false instrument	AIA’s Request Form	AIA
4	11/4/2011	Using a false instrument	AIA’s Request Form	AIA
5	1/7/2011	Using a false instrument	AIA’s Request Form	AIA
6	7/12/2011	Using a false instrument	AIA’s Request Form	AIA
7	7/5/2012	Using a false instrument	AIA’s Request Form	AIA

Facts

2.In 1990, the defendant became acquainted with Cheung Yau-kwong as they worked in the same organization.   In around 2005, he told Cheung that he was an insurance agent with AIA.  He had a stock broker licence.  In early 2008, he told Cheung that he had earned money in purchasing investment funds.  In October 2008, Cheung purchased investmentfund-related insurance policies from him. 

3.On 29 October 2008, Cheung agreed to allow him to invest in the stock market on Cheung’s behalf.  Cheung opened an investment account at the bank (“Account 1”) linked to a savings account (“Account 2”) at the same bank.  Cheung gave him the password for online banking services of Accounts 1 and 2.  Cheung deposited money into Account 2 from time to time upon his indication that the stock market was booming.  Cheung did not check Account 2 as Cheung trusted him and Cheung did not know much about the stock market. 

4.In November 2012, Cheung requested to transfer a sum of money from Account 1 to Account 2.  He told Cheung that the transfer was done. In December 2012, Cheung discovered no transfer had been done.  Cheung reported the matter to the police. 

5.Upon investigation, it was found that he had invested in the stock market with Accounts 1 and 2 from October to December 2008.  No investment was made after that. A total of fifty-nine transfers were made from Account 2 to other entities totalling $425,664.9 from 11 November 2008 to 19 October 2012.  Without Cheung’s consent, he had used the money to settle his own clients’ insurance premiums, to his own account with the Jockey Club and his own telephone bills (hence 1^st Charge).   He had forged Cheung’s signatures on AIA’s Request Forms to move money from Cheung’s investment policies to Account 2 (hence 2^nd – 7^th Charges). 

6.In January 2013, he had offered to pay restitution of $200,000.  In July 2013, another sum for restitution, $276,000, was only to await receipt.  After further calculation, the entire sum for restitution was found to be $481,915.29. Cheung and AIA had already received their respective parts. In the premises, Cheung and AIA suffered no loss from the offences.     

Personal background and mitigation

7.He is 41 years of age, F. 5 education level.  He has a clear record.  His wife is a clerk earning $12,000 per month.  They have no children.  His counsel tells me that since dismissed by AIA in December 2012, he had found the job of a godown worker on a daily wage. It was the only ready job he could get without losing time to raise money.  He had kept the same job up to the present moment.  He would get $360 per day.  He usually earned $7,000 - $8,000 per month.  He and his wife had to repay $3,000 per month to their friends who had lent him the money for restitution.  This would have to go on for years.

8.From his mitigation letter, I understand that he had not always earned enough for his family expenses whilst working in AIA.  He was afraid to tell his family and friends.  So he resorted to stealing from the victim.  He could no longer work in the insurance or stock brokerage field.  He had written an apology letter to the victim on 26 December 2012 but was then advised inappropriate to send it to the victim.  The letter is now before me. His wife pleads for leniency on his behalf as stated in her mitigation letter.  Her family looked down upon him as he could not even afford the wedding banquet. His wife and family members are in court to show support.   

9.He was arrested in February 2013.  It took the prosecution up to June 2013 to charge and bring him to court for the first time.  There were 2 more adjournments in July 2013 to complete the legal advice on venue and appropriateness of the charges which the prosecution had promised the court to be available in July 2013.  The adjournments were due to no fault on his part.  Between 5 June 2013 and the day previous to my court, ie 18 November 2013, he had been reporting daily, on most of the dates[1], to the police station as a bail condition, apart from $10,000 cash and not leaving Hong Kong. 

Sentencing breach of trust

10.The Court of Appeal in HKSAR v Cheung Mee-kiu 張美嬌 [2006] 4 HKLRD 776及 HKSAR v Ng Kwok-wing 吳國榮 CACC 398/2007 have laid down sentencing guidelines as follows:

（1） $15,000,000 and upwards，10 years and upwards;

（2） $3,000,000 to $15,000,000，5 to 10 years;

（3） $1,000,000 to $3,000,000，3 to 5 years;

（4） $250,000 to $1,000,000，2 to 3 years;

（5） $250,000 or below, 2 years or below.

11.His counsel has cited the case of Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236 as an example of suspended sentence imposed in a breach of trust case involving over $631,000.  The defendant there had been employed by the bank since 16 years ago.  He last worked as a senior bank clerk.  In mid-May, when confronted by his employer, he fully admitted his guilt.  In late May, he made full restitution out of borrowings from friends and was dismissed from employment.  In early July, he commenced to work as an accounts clerk in a night club to repay his friends.  In late July, he was arrested.  In early June the following year, he was charged and first brought up before a magistrate.  Two weeks later, he came before the District Court and expressed his intention to plead guilty.  The Court of Appeal dismissed the prosecution’s application for review of a sentence of 21 months suspended for 3 years.  It had taken in account the fact of his having lost a job of long standing with the bank and he would probably be unable to get a decent job in the sphere of accounting, his pleas of guilty, his previous good character, the matter hanging over his head due to no fault on his part and his prompt and full restitution. 

12.In Secretary for Justice v Lin Min Ying [2002] 2 HKLRD 823, the female defendant was a university lecturer whereas her husband the male defendant was a Justice of the Peace.  Over 4 years, the wife had furnished false information to apply for housing benefit.  The difference in gain generated by the scam, when compared to a lawful application for the lower figure, was about $280,000.  They were both of previous good character.  They had been remanded in custody for probation reports.  They had paid the whole sum of over $1,400,000, as a token for principal and interest.  This sum included what they would have been legally entitled to claim, as if they were not entitled to claim any at all.  The sentencing judge considered all of the 6 criteria of HKSAR v Chow Chak Man [1999] 3 HKLRD 37 as follows:

(1) A first offender or one with a light criminal record;

(2) Come from a stable home background, perhaps with a family;

(3) Have a good work record, orders are not designed to encourage the lazy or to show the idle the error or their ways;

(4) Be in employment or have a realistic prospect of such;

(5) Have shown genuine remorse (even if late in the day);

(6) Present no more than a slight risk of reoffending.

13.The Court of Appeal refused the prosecution’s application for review of sentence and affirmed the community service order of 240 hours for each defendant. 

14.Based on the aforesaid cases, defence counsel submits that the defendant here is a suitable candidate for either suspended sentence or community service. 

15.I call for a community service report but warn the defendant of the usual penalty of imprisonment for the only reason that community is one of the options, notwithstanding the norm of imprisonment, open to me.  He signifies his understanding.  The community service report considers him a suitable subject.   

Sentencing this defendant

16.The main thrust of the case is in 1st Charge.  It is a serious breach of trust.  I reckon that if I were to impose a term of imprisonment, the main charge, 1^st Charge, would have a starting point of 27 months based on Cheung Mee-kiu (above).  Each of the other charges relates to using a false instrument, ie AIA’s Request Forms, on which he forged Cheung’s signature.  I would take 15 months as the starting point.  All charges form part of the overall transaction and warrant concurrent sentences.  His overall sentence would be 18 months given his pleas of guilty. 

17.The community service report comes back with a favourable recommendation.  It is a viable option, given that he can meet all 6 criteria set out in Chow Chak Man (above).  I consider that it is a case where the call for imprisonment and community service are each equally loud, a cross-roads where mercy ought to season justice.   I sentence him to community service for 240 hours for each charge on a concurrent basis.