HKSAR v. Ming Chi Lau, Thomas

HCCC 267/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 267 OF 2014

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant pleads guilty to 11 counts of theft and 8 counts of using a false instrument. The defendant was the branch manager of the Bank of East Asia at the time of the offences.

From 1997 to 2012, he repeatedly stole money from his clients’ accounts. This series of conduct constituted Charges 2, 3, 5, 6, 11, 12, 13, 15, 16, 18 and 19. The total amount of money stolen is about 65 million.

About the same time, he forged instruments to perpetuate or to conceal his crime constituting Charges 1, 4, 7, 8, 9, 10, 14 and 17. These forged documents are:

(a) uplift of deposit advice to withdraw money from the victims’ time deposit account;

(b) time deposit withdrawal instruction to withdraw money from the victims’ time deposit account;

(c) confirmation of deposit to conceal that he had embezzled the victims’ money instead of making a time deposit as instructed.

I am not going to refer to detailed facts because the defendant had already admitted to the Summary of Facts as submitted by the prosecution.

The defendant is 57 with a clear record. He is divorced. He worked hard in the Bank of East Asia and was promoted from clerk to branch manager after 36 years’ service.

He allegedly committed these offences because of the collapse of the property market around 1999. He incurred substantial mortgage debt and credit card overdraft. Some of the victims were his close friends. He manipulated various accounts to cover up the plot. In an attempt to recoup the victims’ loss, he invested in the share market.

Unfortunately, that caused further substantial losses.

The defendant was remorseful and cooperated with the police. He surrendered to the police once the Bank of East Asia discovered the offences. He provided most of the information to the police.

The mitigation letters submitted today show that the defendant is an amiable person among his friends and colleagues. He is genuinely remorseful. Two of the victims wrote to this court indicating that they had forgiven the defendant.

This is a serious breach of trust case. The defendant was a bank manager and embezzled the clients’ money. The whole scheme was calculated. It continued for nearly 15 years. This grateful affected the goodwill of the Bank of Asia and the confidence of the public.

The defendant’s explanations as to why the debt went up from a few million to 65 million is by no means satisfactory, albeit that he maintains that he has not been extravagant.

The guideline set out in Cheung Mee Kiu [2006]4 HKLRD 776 is applicable. A term of immediate imprisonment is inevitable. This court should pass a term of imprisonment to reflect the gravity of the offence.

Mr Richmond urges this court to consider the case Chan Boon Ning CAAR 1/2002 in which the Court of Appeal opined that 9 years would be an appropriate starting point embezzling a total of about 80 million. That case was prior to Cheung Mee Kiu, albeit that the Court of Appeal had the case of Clark in mind.

Another factor which might have influenced the Court of Appeal was the delay caused by the prosecution. In any event, I am bound by the guidelines set out in Cheung Mee Kiu.

For Charges 1, 4, 7, 8, 9, 10, 14 and 17, they are charges of using a false instrument. I take 3 years as the starting point for each charge. I deduct one year for his plea. I sentence the defendant to 2 years’ imprisonment for each of these charges.

For the theft charges, that is 2, 3, 5, 6, 11, 12, 13, 15, 16, 18 and 19, I sentence him as follows.

The 2nd charge, the amount stolen is 12.98 million. I take 9 years starting point, I deduct one-third for his plea. The sentence is 6 years’ imprisonment.

For the 3rd charge, 2.27 million involved, 4 years starting point, one-third discount and the sentence is 32 months’ imprisonment.

The 5th charge, 5.18 million. I take 6 years starting point. I give a one-third discount for his plea. I sentence him to 4 years’ imprisonment.

The 6th count, 0.93 million involved, 3 years’ starting point, one-third discount for his plea, I sentence him to 2 years’ imprisonment.

The 11th count, 3.5 million involved. I take a 5 years starting point, one-third for the plea. I sentence the defendant to 40 months’ imprisonment.

The 12th count, 2.8 million, 4 years starting point, I give a one-third discount. I sentence the defendant to 32 months’ imprisonment.

The 13th count, 20 million involved. I take 10 years as the starting point. I deduct one-third for his plea. I sentence the defendant to 6 years and 8 months’ imprisonment. For this count, had it not been the maximum sentence of 10 years for the theft charge, I would have taken a higher starting point of 12 years.

For the 15th count, the amount stolen was 15.9 million. I take 10 years as the starting point, a one-third discount. I sentence the defendant to 6 years and 8 months’ imprisonment.

For the 16th count, 0.95 million involved, I take 3 years as the starting point, one-third discount for the plea, I sentence the defendant to 2 years’ imprisonment.

The 18th count, 0.2 million involved, I take 18 months as the starting point, one-third discount. I sentence the defendant to 12 months’ imprisonment.

The 19th count, 0.2 million involved. I take 18 months as the starting point, one-third discount for the plea. I sentence the defendant to 12 months’ imprisonment.

In view of totality, I make the following order:

(a) Four months of the sentence of each of the Charges 2, 3, 5, 6, 11, 12, 15, 16, 18 and 19 to be consecutive to the sentence of the 13th charge. The remainder, concurrent.

(b) The sentence of Charges 1, 4, 7, 8, 9, 10, 14 and 17 to run concurrent to each other and concurrent to that of the 13th charge.

As the Court of Appeal emphasised repeatedly, the one-third discount is the high watermark for a guilty plea. I do not find any further reasons to reduce the sentence. The defendant has to serve a total of 10 years’ imprisonment.