HKSAR v. Yeung Yu Man
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DCCC 150/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 150 OF 2014 ----------------------
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--------------------- Reasons for Sentence --------------------- 1.The defendant has pleaded guilty to three charges of theft. They involved the theft of a total of around HK$1½ million from her employer, Dai Pai Dong Retail Shops. She has admitted the facts and I have convicted her. 2.The facts that she has involved show that these thefts involved a breach of trust. The defendant was employed by Dai Pai Dong Retail Shops Limited - that is the company - as a human resources officer and started employment on 22 May 2007. In February 2010, she was promoted to become an executive manager. As a result of that, she assumed certain responsibilities. Those included preparing the salary records for the accounting department for issuing cheques to pay salary for the staff, collecting cheques from the accounting department to distribute to the staff to have salary payment, ensuring that the daily revenues of each branch were deposited into the company’s account, verifying the daily expenditure of branches of the company, and collecting cheques issued to each branch for daily expenditure. 3.On 4 November 2008, a company called Camry Company commenced business. The defendant and a man called Chan Hung‑kit were the proprietors. 4.In respect of the respective charges, the 1st charge occurred between 23 September 2009 and 31 March 2010. The defendant called PW2 and told her to deposit the daily revenues of the company’s Tai Po branch into Camry’s account. This was done between the dates on the charge in 2009 and 2010 and involved the theft of a total of $938,633. 5.The 2nd charge occurred between 7 April 2008 and 7 March 2010. This involved the creation of a false employee called Zhu at the Tai Po branch. Salary cheques were issued to this fictitious person. These cash cheques were cashed by or for the defendant’s benefit. This totalled a sum of HK$142,200. 6.The 3rd charge involves the theft of the company’s daily expenses at four different branches. This offence occurred between 2 June 2008 and 18 February 2010, involving a total of 65 client cheques with a total sum of $437,000 in Hong Kong dollars. The defendant cashed the cheques herself to appropriate the money. 7.Under caution, the defendant admitted that she stole the money from the company to pay for her ex-husband’s debt to settle her own family expenses. 8.As far as her background is concerned, the defendant is 37 years old and the mother of a 16-year-old son. She is a person of previous clear record. 9.I obtained certain reports on the defendant. Firstly, there is a medical report. This shows the defendant has had a somewhat chequered medical background. She has a history of systemic lupus erythematosus followed up in the Connective Tissue Diseases Clinic of the Pamela Youde Hospital. She has had what appears to be cancer of the breast, bilateral breast masses, left-sided mass excised. She has also suffered cervical cancer a radical hysterectomy and has a history of anxiety disorder. The current condition is satisfactory. 10.There is also a background report on the defendant that she had lived, prior to her incarceration, with her son in a rented home for the past three years and her sister has moved in for nearly a year. 11.The defendant was married and has a son of 16. She married in 1997. It appears her ex-husband was a heavy gambler, owed money to various moneylenders. He deserted the family in 1998 and owed loan sharks several hundred thousand dollars. After his departure, she said that she paid two to three thousand dollars every month for nearly two to three years to pay off her husband’s debts, and then subsequently for another five or six years, she was paying off several thousand dollars. But of late, the last two to three years, she had been free from the disturbance from the loan sharks. 12.She also described her medical condition, having suffered from uterus cancer in 2004, lupus in 2013 and the anxiety disorder. She attributed her commission of the offence to the influence of her then boyfriend, Mr Chan. She said that due to financial difficulties, she had stolen the money from the workplace in the two years, 2008 to 2010. The money had been shared with her ex-boyfriend, bought cars, paid off her ex‑husband’s debts and taking holidays. She was clear about admitting her wrongdoings for the reasons she has given. 13.I obtained a social welfare report on the defendant’s son. He is aged 16, described as a tall and smart-looking boy. He is currently at boarding school at the Hong Kong Sea School, returns home on the weekends with his mother. The childcare arrangement that seems to be proposed is that the aunt, the defendant’s sister will care for the son on the weekends and also during the school holidays. Of course, this is a substantial mitigating factor. It is that the son will be deprived of his mother’s society and care in his late teenage years and will be reliant on family members to provide that gap. 14.When one looks at the thefts, they involve the taking of approximately 1.5 million from her employer, separated in three separate charges. It was over a period of two years, so it was a substantial period. She was in a position of responsibility of the company, so it involves a breach of trust. 15.There are guideline sentences for such offences involving breach of trust and they indicate that for a sum of between one to three million dollars, the sentencing range would be between 3 to 5 years’ imprisonment as a starting point for a person of clear record. The defendant’s figure being at the lower end of the one to three million would mean that any starting point would be taken at the lower end of that range of sentencing. 16.Looking at the mitigating factors advanced by the defendant, that is her early plea and admission of the facts. She has always admitted from the time of her arrest her involvement in the taking of the money. She has had fairly poor health, and she can possibly expect further bad health in the future. She is a single mother, she has been responsible for the upbringing of her son from birth and assumed responsibility for her ex-husband’s debts. And, naturally, any sentence of imprisonment will impact substantially on the family life of both mother and child. 17.I consider that given the amount of money over the period of time it was taken, a sentence of imprisonment is the only possible form of sentencing for this case. And given the amount taken, it also has to be a substantial sentence of imprisonment. Nevertheless, in adopting a starting point, I will bear in mind her previous clear record and the other exonerating factors I have already described, having particular regard to the position of the son in this. 18.I propose what I consider to be appropriate sentence on each charge and then consider whether any of that should be served concurrently or consecutively. The 1st charge involves the theft of $938,633. That will put the offence in the range of 2 to 3 years’ imprisonment as a starting point. Having regard to the factors I have already outlined, I am going to take a starting point of 33 months’ imprisonment for that charge. The defendant has pleaded guilty and with the deduction of one-third, it gives a sentence of 22 months’ imprisonment. 19.The 2nd charge involves a sum of $142,200. That would put the starting point below 2 years’ imprisonment. I will adopt a starting point of 12 months’ imprisonment and reduce that to 8 months’ imprisonment for the plea of guilty. 20.The 3rd charge involves a sum of HK$437,000. Again this puts the case in the realm of the 2-to-3-year sentencing guideline. I will take a starting point of 27 months’ imprisonment and reduce that to 21 months’ imprisonment for the defendant’s plea of guilty. 21.The offences were committed on separate dates and over a considerable period of time. That means it is possible for the court to make these sentences to be served at least partly consecutively. 22.I consider that I must impose an appropriate overall sentence for this offence. Taking all the offences together, so the guideline sentence will be between 3 to 5 years and would be at the lowest range of that sentencing guideline. 23.On the 1st charge, I adopt as a starting point 33 months’ imprisonment which is somewhat below the 3 years but not substantially. As I have already outlined in my sentencing recital, there are what I consider to be pressing mitigating factors for this defendant, especially in respect of her ill health and her family situation. I have decided, having regard to the overall totality of sentence, that the sentences can and should be served concurrently, giving an overall sentence of 22 months’ imprisonment, and that is the sentence I will impose. (Discussion re starting point for 3rd charge) 24.I will correct that. The 3rd charge will be 18 months on the correct calculation. It does not make any difference to the sentence. The overall sentence will still be 22 months’ imprisonment.
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