HKSAR v. Sukhraj Singh

DCCC 494/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 494 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to 4 charges of theft and 1 charge of attempted theft.

Summary of Facts

2.The defendant has been the manager of Asia View Enterprises Limited (“the company”) since about 2007. He was authorized to operate the company’s 3 bank accounts for business purpose.

Charge 4

3.On 28 March 2014, PW1, the founder of the company, received an email from UCO Bank (one of the company bank account operators) regarding a transfer request for USD$150,380 (HK$1,172,964) from the company bank account to a Standard Chartered Bank account (“the SCB account”). PW1 revoked the transfer instruction and told the bank to withhold payment.

Discovery of the other offences

4.Feeling suspicious, PW1 immediately checked the company’s all 3 bank accounts and found 4 other unauthorized transfers.

Charge 1

5.On 13 March 2014, USD$59,800 (HK$466,440) was transferred from the UCO bank account to the SCB account, which was later confirmed to have been held in the defendant’s name with the defendant being the sole signatory.

Charge 2

6.On 18 March 2014, USD$125,000 (HK$975,000) was transferred from the company’s Bank of Baroda account to the SCB account.

Charge 3

7.On 20 March 2014, USD$31,580.98 (HK$246,331.64) was transferred from the company’s Indian Overseas Bank account to an HSBC account, which was later confirmed to also have been held in the defendant’s name with the defendant being the sole signatory.

Charge 5

8.On 28 March 2014, USD$58,000 (HK$452,400) was transferred from the company’s Bank of Baroda account to the SCB account.

9.On the same day that PW1 was alerted to the above unauthorized transfers, he called the defendant who admitted to taking the company’s money and then promised that he would make repayments. On the following day when PW1 called the defendant again, the defendant said he was in India and repeated that he will make arrangement for repayment. PW1 lost contact with the defendant subsequent to that phone call and the matter was reported to the Police.

10.Investigation revealed that the defendant had put the company chop onto the relevant transmittance forms and faxed them to the banks to request for the transfers into the defendant’s 2 bank accounts. The 4 sums of money so transferred were then withdrawn immediately by way of cash withdrawals.

11.The defendant was arrested and cautioned at the Hong Kong International Airport on 1 April 2014 when he was about to leave Hong Kong.

12.The total amount of money the defendant actually stole from the company amounted to about HK$2,140,172, and the amount of money he attempted to steal in charge 4 is about HK$1,172,964.

13.The defendant has made no restitution as at the time of sentence.

Previous Convictions

14.The defendant is of previously clear record.

Mitigation

15.The defendant is 31 years old, married with 2 children. It is Mr. Andrews’ submission that greed is not a factor in the defendant’s commission of the offences. As a result of being constantly spending more on expenses than he was earning, the defendant was “sunk without trace in a sea of debt”. All 5 offences were committed within days of each other in March 2014, and they represented the desperate and quite irrational effort of someone trying to stay afloat in that sea of debt.

16.The defendant came to Hong Kong from India in 2006. He got married to his wife who is a Hong Kong permanent identity card holder. They set up home here in Hong Kong together. In 2007, the defendant was employed by Asia View, the victim company. At that time, the company operated out of one room in Hong Kong with the defendant the only employee, with a salary of $10,000 per month. The business of Asia View was they would purchase in North Africa principally dried fruit, which in turn was exported from there to South Asian countries. That was the business conducted by PW1 alone, but the finance of that business was through Hong Kong. The defendant’s duties were with regard to arranging the necessary finance from the company’s bank accounts in Hong Kong, paying off the freight for shipping, etc. The defendant basically on his own was responsible for arranging for the finance of the business.

17.That continued up until 2012 when 3 extra staffs were brought in and so from 2012 onwards, 4 people were doing what the defendant had done alone before. By that time, the defendant’s monthly salary had been increased to $20,000 per month.

18.So far as the defendant’s personal circumstances are concerned, up to 2007, he and his family had been living in private accommodation. The defendant’s wife did not work. Apart from the obligations of home and wife and children, as they came along, he also left behind in India 2 parents both of whom he supported to the extent of paying for his mother’s medical bills. So those essentially were his outgoings per month. Mr. Andrews later supplemented this by saying that the bills added up to $60,000 to $70,000 per year (which would have been around $5,000 to $5,800 per month).

19.What the defendant was paying out per month was more than what he was being paid by Asia View. That is how the whole story developed over the years. Yet, it was not just something that happened suddenly. In 2007, the defendant was borrowing from his uncle who from to time would help him out and also in 2007, he borrowed from his employer Mr. Vitankar, which he had paid back.

20.In 2011, the defendant obtained an overdraft with the Standard Chartered Bank, which was repaid during 2012. On analysis, one can see a steady decline from 2011 where essentially he was borrowing money to simply to pay off debts already incurred and it was one of those situations. The real pressure came in 2012, when his employer lent him $350,000. Rather than let the debt run, the employer after a period of 2-3 months put pressure on the defendant, not unsurprisingly, to repay the money or at least to repay some of it.

21.The defendant buys time by taking out a fresh overdraft with the SCB and using that money, $200,000, to partly repay his employer. So he’s got an overdraft or bank loan with SCB and $150,000 of outstanding debt balance with Mr. Vitankar. Since in any event he was in a situation where his monthly outgoings in terms of supporting wife and home are in excess of his earnings, one can see that all the seeds for disaster had been sown and it was only going to be a matter of time. It was time that the defendant was trying to buy in circumstances where he could not afford to buy it out of the existing money at his disposal.

22.As he admits now, the pressure became too much. There was just too much money involved. The defendant cracked under pressure. As at the time of the commission of the offences, the defendant was indebted to the sum of around $380,000 in total.

23.These offences would have been discovered within a matter of weeks. The defendant used the same method to finance the business, worked on the basis of a request to the bank supported by a company chop. It was something bound to be discovered in the short rather than the long term. When the employer got in touch with the defendant, he there and then immediately acknowledged what he had done and tried in a last desperate attempt to buy time.

24.The defendant had acted out of complete aberration. He had taken the money with him to Macau in a desperate attempt to get lucky and generate money from his gambling to pay off his employer. Something doomed to failure.

25.Movement records of the defendant for March shows that the defendant was in Macau when his employer spoke to him and he did lie when he said he was in India.

26.When they spoke, as can be seen from the summary of facts, the defendant did promise to repay and empty though that promise is, it should be judged against the background of 2 previous occasions where money had been borrowed from the employer, one of which had been repaid in full and the second one had been repaid in part.

27.In the defendant’s mind, there might have been a chance that an accommodation could be reached. At the time he got the phone call from PW1, he had already lost the money. The desire to repay his employer made him commit the crimes in the first place.

28.Mr. Andrews then referred to the case of R v Cheung Mee Kiu, CACC 99 of 2006 for the appropriate sentencing guidelines in cases of theft involving a breach of trust.

29.Mr. Andrews submits that all the 5 charges were committed within a matter of days to each other, all arising out of the same course of events and completely out of character, and there is basis to make the sentences concurrent to one another.

Sentencing guidelines

30.The total amount of money the defendant stole and attempted to steal is HK$3,313,136. The defendant was the manager of the company and he stole and attempted to steal from the company’s bank account by exploiting his position and the authority to operate the bank accounts granted to him by the company. The defendant had abused his position of trust as manager and an employee of the company. This is therefore a breach of trust case.

31.The applicable sentencing guidelines for theft involving a breach of trust are found in the case of HKSAR v Cheung Mee Kiu, CACC 99/2006, where it is stated that for theft of between $1 million to $3 million Hong Kong dollars, starting point of between 3 to 4 years’ imprisonment is appropriate.

Sentence

32.The maximum sentence for theft, and attempted theft, is that of 10 years’ imprisonment.

The inchoate offence

33.In relation to the attempted theft, it must first of all be noted that the reason that the theft was not completed was because of the alertness of PW1 and not for the lack of trying on the part of the defendant. He had done everything that he could do to facilitate the stealing of the money. It is therefore not a case that his crime was in its infancy or that his action was less serious than when the theft had in fact been completed. I find that there is to be no deviation from the sentencing guidelines just because charge 4 is an inchoate offence.

34.The defendant, through Mr. Andrews, tried to paint a picture of someone in desperation and to steal from his employer was his only way out. I find that the defendant’s situation of desperation was entirely of his own doing. The defendant complained of all how he was not able to cover all his expenses with his income from the company. This is not a good excuse to steal. It is not uncommon in Hong Kong for people to struggle on their earnings, yet they don't all ended up stealing. The proper thing to do would be to try to live within one’s abilities.

35.Based on what Mr. Andrews was telling the court, the defendant was not doing too badly at all. He managed to have his own home with the help of the government and was able to spend some $70,000 to $90,000 on renovating the flat. He had a very stable job with a seemingly kind and understanding employer who was willing to lend him relatively large amounts of money, without charging interest apparently, on at least 2 occasions.

36.Somehow the defendant managed to incur debts of around $380,000 as at the time of the commission of the offences. Yet he decided to steal a total of some $3 million Hong Kong dollars, about 10 times the amount that he was indebted and from the company he worked for which was owned by the same person who was kind enough to help him out before.

37.Despite having already lost all the stolen money through gambling in Macau, the defendant chose to lie to PW1 that he was in India and that he will repay the money. There is no evidence whatsoever that the defendant had any other sources of income at that time, and having lost all the stolen money, the defendant must have known that he had no way to repay the $2 odd million dollars. Lastly, the defendant was apprehended while he was about to leave Hong Kong at the airport, the only inference must be that he had no intention of repaying the stolen money or the debts he owed.

38.While I do sympathize with the defendant’s family, both in Hong Kong and in India, there is no one else to blame for the dire situation the defendant is now in when he chose to steal $3 million odd and he has to suffer the full consequences.

39.Although Mr. Andrews agreed that this is a breach of trust case and that the guidelines in Cheung Mee Kiu apply, he asked the court to make part of the individual sentences concurrent to each other because the thefts, and attempted thefts, were committed in a short period of time.

40.I find the correct approach is to find the guidelines starting point for each charge and then look at the circumstances of the commission of the offences and find out what guideline sentence a global approach would have resulted in. I find that in situations where the thefts took place within a short period of time and the circumstances of each of the thefts are similar, a global approach using the final stolen amount should be adopted when applying the guidelines to arrive at the appropriate sentence.

41.In our present case, the total amount of money involved is around $3.3 million. I find that given the short period of time within which the offences were committed and the circumstances of the commission of each theft, or attempted theft being identical, a global approach should be adopted. If the overall criminality is being reflected in one single charge, based on the amount of money involved and applying the guidelines in Cheung Mee Kiu, an appropriate starting point would be that of 48 months’ imprisonment.

42.I would however have taken into consideration the previously clear record of the defendant and his family situation that will likely to be very difficult with the defendant in jail and reduced this initial starting point by 3 months to the final starting point of 45 months’ imprisonment.

43.To arrive at the final starting point of 45 months’ imprisonment, I will first of all adopt a starting point of 27 months’ imprisonment for charge 1, 33 months’ imprisonment for charge 2, 21 months’ imprisonment for charge 3, 36 months’ imprisonment for charge 4; 27 months’ imprisonment for charge 5, and then order that 18 months of charge 2 be served consecutively to the 27 months sentence in charge 1, making a total of 45 months’ imprisonment. The rest of all the sentences to be served concurrently. Applying the full one-third discount for his guilty plea, the defendant is sentenced to 30 months’ imprisonment.