HKSAR v. Ma Kam Wai

DCCC 243/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 243 OF 2015

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Reasons for Sentence
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1.In this case the defendant, Ma Kam-wai, is convicted of one count of theft upon his plea and admission of facts.

2.It is a case involving a breach of trust. Since 2007 the defendant had been employed by the victimised company as an accounts clerk.  Part of his duties involved collecting the cash revenues generated by the two restaurants operated by the victim and depositing the same into the company bank account twice a week.

3.Since 1 January 2012 the defendant had started pocketing part of these revenues for his own use.  Initially, the sums taken were a few thousand dollars but at some point it went up to 50,000.  To conceal the loss of revenues, he made false entries in the accounting records.  That went on until 19 September 2014 when a series of bounced cheques exposed the absence of funds in the company account. 

4.A thorough auditing of accounting records revealed a total of HK$2.52 million had been stolen from the company coffer.

5.When confronted by a company shareholder, the defendant admitted to have stolen monies from the company and had spent them on gambling.  On 26 September 2014, the defendant signed a memorandum making a full admission of the theft.  Since 14 October 2014 the defendant did not show up for work and then became out of reach.

6.After the victimised company made a complaint to the police, on 15 October 2014 the defendant surrendered to the police station. 

7.Under caution, the defendant made a full admission.  It was later confirmed that the defendant had transferred most of the stolen funds to his Jockey Club account and spent it all on gambling. 

8.The defendant had abused the trust of his employer by methodically depleting the company’s funds over a period of 30 months.  He also falsified entries in order to cover his crimes.  All of the HK$2.5 million had been squandered to feed his gambling addiction.  He was not able to return any of the money stolen.  These are the most aggravating factors in this case.

9.There are clear authorities on the proper sentence for offences of this magnitude.  My attention has been drawn to the Court of Appeal decisions of Cheung Mee Kiu CACC 99/2006 and Ng Kwok Wing CACC 398/2007. 

10.The present case of HK$2.5 million falls into the band of HK$1.25 million to HK$3.125 million for which the proper sentence is 3 to 4 years’ imprisonment.  Having considered the facts of this case, I do not see any reason to depart from the same.  I would therefore adopt the starting point of 3½ years’ imprisonment.

Mitigation

11.The defendant had a clear record and, as his legal representative rightly conceded, this factor played no part in the offence of this kind.  It is because of this that the offender could gain his employer’s trust and was therefore in a position to commit the crime.

12.I have also considered the background information furnished by the prosecution and his lawyer, I found no valid ground to exercise exceptional clemency in this case. 

13.The only valid mitigation in this case is the fact that the defendant pleaded guilty.  I therefore order the sentence be reduced by one-third and sentence the defendant to a term of imprisonment for 28 months.