DCCC 543/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.543 OF 2013
---------------------------
HKSAR
v.
YAM Ka-wai
---------------------------
Before: District Judge Douglas T.H. Yau
Date: 17 July 2013 at 11:08am
Present: Mr. Vincent Lee, Public Prosecutor for HKSAR
Mr. Lau Chun Yuen of M/S J. Chan, Yip, So & Partners, assigned by DLA,
for the defendant
Offence: Theft (盜竊罪)
----------------------------
Reasons for Sentence
-----------------------------
1. The defendant pleaded guilty to one charge of theft, contrary to s.9 of the
Theft Ordinance, Cap.221. Particulars of the charge are that the defendant
between 5th January and 22nd August 2012 stole choses in action, namely debts
in the total sum of $1,269,350 owed by Hang Seng Bank Limited to Chinese
Christian Assemblies of God Kwai Chung Church Limited in the account
numbered 781-042262-001.
Summary of facts
2. The defendant was an executive secretary of a church in Kwai Chung at the
material time. He was responsible for keeping the check book of the church’s
current account and for preparing checks for the directors of the church to sign
for settling of payments.
3. On 23rd August 2012 the defendant surrendered to the Police station and
admitted that he had stolen more than 1 million dollars from the church by
forging the directors’ signatures and issuing a total of 32 checks. A total of
$1,269,350 was withdrawn from the church’s current account by the
defendant. The checks were either deposited into the defendant’s HSBC
account or withdrawn by the defendant in cash. The withdrawals started on 5th
January 2012 and lasted until 22 nd August 2012.
4. While the defendant was withdrawing the money for his own use, in order to
ensure that the church’s current account had enough funds, he also forged the
directors’ signature to make 18 transfers from the church’s savings account to
the current account. The total amount so transferred was $971,200.
2
5. In order that the withdrawals were covered up, the defendant also forged 6
Hang Seng Bank statements and emailed them to the staff member who did
the auditing for the church.
6. According to the defendant’s confession under caution, he had gambled away
all the stolen money. It was when there was no money left to settle the
church’s payments that the defendant decided to surrender to the Police. As at
23rd August 2012, there was $375.61 and $133.79 left in the church’s savings
and current account respectively.
Previous convictions
7. The defendant was convicted of 2 charges of ‘access to a computer with
dishonest intent’ in May 2004 and was sentenced to the detention centre. This,
however, is regarded as a spent conviction under the Rehabilitation of
Offender Ordinance, Cap.297.
Mitigation
8. Mr. Lau for the defendant provided the court with a ‘Points of submission’ in
mitigation.
9. The defendant is 33. He was educated in Hong Kong up to Form 5 level and
then attended high school in Canada. His family was not able to support his
further education after his first term in university and so the defendant
returned to Hong Kong and started to work as a data entry clerk at a credit
card company in 2000. He worked there for 2 years and then changed job
twice.
10. He joined DBS bank’s credit card centre in 2004. It was there that he
committed the offences of ‘access to a computer with dishonest intent’
mentioned above.
11. After the defendant’s release in November 2004, he found employment at a
church in Shatin as an activities organizer. In 2006, he changed job and
worked as an account clerk for a distill water company. In August 2008, he
changed job again and worked as an activities organizer for a church in
Fanling. He worked there for 3 years until he left and joined the present
church as an administrative assistant in November 2011.
12. After the present incident, the defendant left the church and worked as a
warehouse keeper until May 2013. The defendant worked as a casual delivery
worker once the Police commenced the present prosecution.
13. The defendant’s mother is 68 and retired while his father passed away in 2011.
Although the defendant is married to a PRC national in 2011, his wife stays in
the mainland and the defendant rarely visited and there is no communication
between them anymore.
3
14. At the material time, the defendant had been indebted to finance company for
over $100,000. The defendant took the church’s money to gamble in Macau in
the hope that he could win some money to repay his debts.
15. The defendant is now earning $400 per day and working about 4 or 5 days a
week, with a monthly income of about $7,000.
16. It is Mr. Lau’s submission that the defendant had cooperated with the Police
from the time he surrendered himself. There was however a delay in his
prosecution and the defendant should be entitled to some discount for having
the case hanging over his head for such a long time.
17. Mr. Lee for the prosecution explained that in addition to the 32 checks which
is the subject matter of the charge, the Police and the Department of Justice
also had to investigate and to consider whether to prosecute the defendant for
the various transfers he made between the church’s savings and current
account, as well as for the bank statements that the defendant had forged.
These facts are referred to in paragraphs 6 and 7 of the summary of facts. It is
Mr. Lee’s submission that there was therefore no delay.
Sentencing guidelines
18. It is not disputed that the defendant was in a ‘privileged and trusted’ position
as an executive secretary and that his conduct amounted to an abuse of that
position of privilege and trust.
19. As such, the sentencing guidelines for breach of trust situations in the case of
HKSAR v Cheung Mee Kiu, CACC 99/2006 apply. At $1,269,350, the amount
involved falls within the “$1 million to $3 million” band and should attract a
sentence of between 3 to 5 years’ imprisonment (as clarified in HKSAR v Ng
Kwok Wing, CACC 398 of 2007).
Sentence
20. The maximum sentence for theft is that of 10 years’ imprisonment.
21. The defendant joined the victim church in November 2011. It was barely 2
months after that when he started to steal from them. I was told that the
defendant was at the time of the commission of the theft some $100,000 in
gambling debts. I was told that the defendant’s debt was incurred before he
had joined the church.
22. The theft then took place over a 7 month period with a total of 32 checks with
forged signatures. Not only did the defendant forged the signatures to steal the
money, in order that there was money in the current account to be stolen, he
forged the signatures of the directors to make the necessary transfers between
the savings and current account.
4
23. Not only did the defendant steal the money, he also forged bank statements to
cover up his track. It is clear that the defendant had planned and executed the
thefts carefully and meticulously. But for the running out of funds, the
defendant would no doubt had gone on to steal from the church.
24. Furthermore, the money that the defendant had stolen were lost in gambling. It
was not the case that he needed the money to save lives or support his family
or to educate a child.
25. Mr. Lau for the defendant confirmed upon inquiry that the main source of
income of the church was donations made by members of the church and the
money stolen must have represented a major portion, if not all, of that income.
The operation of the church relies on those donations. The defendant’s theft
would have far reaching effects on those in need of the church’s support. I find
that stealing money that was donated to help others particularly despicable.
26. As for cooperation with the Police and delay, I find that discount in sentence
for such cooperation will be adequately included in the usual one third
discount. I find that there was no delay in prosecution, and if that period of 7
odd months can be regarded as delay, I find that the delay was not the
prosecution’s fault. Therefore no discount should be given to the defendant
based on delay.
27. Bearing in mind the circumstances of the case while applying the sentencing
guidelines, I will adopt a starting point of 3 years and 3 months’
imprisonment, which is reduced to 2 years and 2 months’ imprisonment upon
the defendant pleading guilty.
28. The defendant is sentenced to 2 years and 2 months’ imprisonment.
Douglas T.H. Yau
District Judge
DCCC 543/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.543 OF 2013
---------------------------
HKSAR
v.
YAM Ka-wai
---------------------------
Before: District Judge Douglas T.H. Yau
Date: 17 July 2013 at 11:08am
Present: Mr. Vincent Lee, Public Prosecutor for HKSAR
Mr. Lau Chun Yuen of M/S J. Chan, Yip, So & Partners, assigned by DLA,
for the defendant
Offence: Theft (盜竊罪)
----------------------------
Reasons for Sentence
-----------------------------
1. The defendant pleaded guilty to one charge of theft, contrary to s.9 of the
Theft Ordinance, Cap.221. Particulars of the charge are that the defendant
between 5th January and 22nd August 2012 stole choses in action, namely debts
in the total sum of $1,269,350 owed by Hang Seng Bank Limited to Chinese
Christian Assemblies of God Kwai Chung Church Limited in the account
numbered 781-042262-001.
Summary of facts
2. The defendant was an executive secretary of a church in Kwai Chung at the
material time. He was responsible for keeping the check book of the church’s
current account and for preparing checks for the directors of the church to sign
for settling of payments.
3. On 23rd August 2012 the defendant surrendered to the Police station and
admitted that he had stolen more than 1 million dollars from the church by
forging the directors’ signatures and issuing a total of 32 checks. A total of
$1,269,350 was withdrawn from the church’s current account by the
defendant. The checks were either deposited into the defendant’s HSBC
account or withdrawn by the defendant in cash. The withdrawals started on 5th
January 2012 and lasted until 22 nd August 2012.
4. While the defendant was withdrawing the money for his own use, in order to
ensure that the church’s current account had enough funds, he also forged the
directors’ signature to make 18 transfers from the church’s savings account to
the current account. The total amount so transferred was $971,200.
2
5. In order that the withdrawals were covered up, the defendant also forged 6
Hang Seng Bank statements and emailed them to the staff member who did
the auditing for the church.
6. According to the defendant’s confession under caution, he had gambled away
all the stolen money. It was when there was no money left to settle the
church’s payments that the defendant decided to surrender to the Police. As at
23rd August 2012, there was $375.61 and $133.79 left in the church’s savings
and current account respectively.
Previous convictions
7. The defendant was convicted of 2 charges of ‘access to a computer with
dishonest intent’ in May 2004 and was sentenced to the detention centre. This,
however, is regarded as a spent conviction under the Rehabilitation of
Offender Ordinance, Cap.297.
Mitigation
8. Mr. Lau for the defendant provided the court with a ‘Points of submission’ in
mitigation.
9. The defendant is 33. He was educated in Hong Kong up to Form 5 level and
then attended high school in Canada. His family was not able to support his
further education after his first term in university and so the defendant
returned to Hong Kong and started to work as a data entry clerk at a credit
card company in 2000. He worked there for 2 years and then changed job
twice.
10. He joined DBS bank’s credit card centre in 2004. It was there that he
committed the offences of ‘access to a computer with dishonest intent’
mentioned above.
11. After the defendant’s release in November 2004, he found employment at a
church in Shatin as an activities organizer. In 2006, he changed job and
worked as an account clerk for a distill water company. In August 2008, he
changed job again and worked as an activities organizer for a church in
Fanling. He worked there for 3 years until he left and joined the present
church as an administrative assistant in November 2011.
12. After the present incident, the defendant left the church and worked as a
warehouse keeper until May 2013. The defendant worked as a casual delivery
worker once the Police commenced the present prosecution.
13. The defendant’s mother is 68 and retired while his father passed away in 2011.
Although the defendant is married to a PRC national in 2011, his wife stays in
the mainland and the defendant rarely visited and there is no communication
between them anymore.
3
14. At the material time, the defendant had been indebted to finance company for
over $100,000. The defendant took the church’s money to gamble in Macau in
the hope that he could win some money to repay his debts.
15. The defendant is now earning $400 per day and working about 4 or 5 days a
week, with a monthly income of about $7,000.
16. It is Mr. Lau’s submission that the defendant had cooperated with the Police
from the time he surrendered himself. There was however a delay in his
prosecution and the defendant should be entitled to some discount for having
the case hanging over his head for such a long time.
17. Mr. Lee for the prosecution explained that in addition to the 32 checks which
is the subject matter of the charge, the Police and the Department of Justice
also had to investigate and to consider whether to prosecute the defendant for
the various transfers he made between the church’s savings and current
account, as well as for the bank statements that the defendant had forged.
These facts are referred to in paragraphs 6 and 7 of the summary of facts. It is
Mr. Lee’s submission that there was therefore no delay.
Sentencing guidelines
18. It is not disputed that the defendant was in a ‘privileged and trusted’ position
as an executive secretary and that his conduct amounted to an abuse of that
position of privilege and trust.
19. As such, the sentencing guidelines for breach of trust situations in the case of
HKSAR v Cheung Mee Kiu, CACC 99/2006 apply. At $1,269,350, the amount
involved falls within the “$1 million to $3 million” band and should attract a
sentence of between 3 to 5 years’ imprisonment (as clarified in HKSAR v Ng
Kwok Wing, CACC 398 of 2007).
Sentence
20. The maximum sentence for theft is that of 10 years’ imprisonment.
21. The defendant joined the victim church in November 2011. It was barely 2
months after that when he started to steal from them. I was told that the
defendant was at the time of the commission of the theft some $100,000 in
gambling debts. I was told that the defendant’s debt was incurred before he
had joined the church.
22. The theft then took place over a 7 month period with a total of 32 checks with
forged signatures. Not only did the defendant forged the signatures to steal the
money, in order that there was money in the current account to be stolen, he
forged the signatures of the directors to make the necessary transfers between
the savings and current account.
4
23. Not only did the defendant steal the money, he also forged bank statements to
cover up his track. It is clear that the defendant had planned and executed the
thefts carefully and meticulously. But for the running out of funds, the
defendant would no doubt had gone on to steal from the church.
24. Furthermore, the money that the defendant had stolen were lost in gambling. It
was not the case that he needed the money to save lives or support his family
or to educate a child.
25. Mr. Lau for the defendant confirmed upon inquiry that the main source of
income of the church was donations made by members of the church and the
money stolen must have represented a major portion, if not all, of that income.
The operation of the church relies on those donations. The defendant’s theft
would have far reaching effects on those in need of the church’s support. I find
that stealing money that was donated to help others particularly despicable.
26. As for cooperation with the Police and delay, I find that discount in sentence
for such cooperation will be adequately included in the usual one third
discount. I find that there was no delay in prosecution, and if that period of 7
odd months can be regarded as delay, I find that the delay was not the
prosecution’s fault. Therefore no discount should be given to the defendant
based on delay.
27. Bearing in mind the circumstances of the case while applying the sentencing
guidelines, I will adopt a starting point of 3 years and 3 months’
imprisonment, which is reduced to 2 years and 2 months’ imprisonment upon
the defendant pleading guilty.
28. The defendant is sentenced to 2 years and 2 months’ imprisonment.
Douglas T.H. Yau
District Judge