HKSAR v. WONG KA LAU GARETH

 DCCC1004/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1004 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to the 5th, 6th, 7th, 8th, 9th and 10th charges on the indictment, which are six charges of theft totalling a sum of money which is over $1 million. The 11th charge is for wounding under section 17 and the victim in the wounding charge is the victim in the six theft charges.

2.  The total sum including the amounts in the four counts left on file has been repaid by a banker’s draft on the first day of trial and I accept, Mr Lok, on the defendant’s behalf, saying that the defendant had all along wanted to repay the sum in full.

3.  The defendant is aged 35 and he has a clear record. He is single. This is, as Mr Lok pointed out, a family tragedy. The victim in this case is the 62-year old step-grandmother of the defendant. The defendant’s grandmother was the second wife of his grandfather and the victim was the third wife.

4.  From the probation officer’s report and also very clearly from the letters which have testified to the defendant’s background, it is clear that the defendant was certainly born with a silver spoon in his mouth. He received a very good education and he received a lot of love and concern from his parents. Perhaps the love and concern was of such a degree that the defendant had felt forced into studying engineering, which he was not particularly interested in.

5.  As I have been told, he then failed to complete his university studies and returned to Hong Kong. He worked at various jobs and in 1998 joined an insurance company in Hong Kong. It was then that the story to this offence began because he then sold some insurance to the victim. Subsequently, when the defendant was strapped for cash, he had stolen the money that the victim had given him for payment of her premiums, thus resulting in the six charges which he had pleaded guilty to.

6.  In around 2007, the victim told the defendant that she wanted to terminate her two insurance policies and in July 2007 the defendant told her to terminate one and gave the victim a document to sign. After that, the victim was waiting for word from the defendant as to when she could collect the $3.2 million which she thought had been accumulated under the insurance policy. She had not realised that the money that she had given to the defendant on those occasions had been taken by the defendant.

7.  In March and May 2008, the defendant got the victim to pay $70,000 and $50,000 to cover, he said, the loss sustained in the alleged investment of one of the insurance policies and victim paid (Charges 9 and 10).

8.  On 8 August 2008, the defendant picked up the victim and drove her to Elizabeth House Car Park. There, under the pretext of looking for insurance documents in the boot of the car, PW1 was helping him search, when the defendant grabbed the victim from behind and struck her head with a 30 centimetre long steel rod several times. When the victim asked him to stop, he told her to kneel and the defendant then squeezed her neck for a few seconds. There followed a struggle and PW1 managed to run away. The defendant ran after her with a towel. The victim was bleeding. Eventually he caught up with her.

9.  Fortunately, there were two men, a Mr Chan and a Mr Hui, who were working nearby and they heard the victim’s screams. They came to the scene and saw the victim lying on the ground and the defendant standing nearby. The police arrived shortly after and arrested the defendant. The defendant, to his credit, made a full admission under caution. The victim was found to have two 1-inch long wounds on her scalp, with various bruises and redness on her body and her neck. Fortunately, there was no fracture. She was treated and discharged on the same day.

10.  Because this is the defendant’s first offence I called for a probation officer’s report to understand more fully the defendant’s background. The defendant grew up without a care in the world. He lived a life of luxury, free of problems, and he had loving parents and a good family. He had also a lot of care from the victim and the victim trusted him.

11.  The problems, as far as I can see, for the defendant is self-created. The victim trusted the defendant to pay the amounts of money for her premium, but the defendant, betraying her trust, kept the money for himself. These are very serious offences. To the defendant’s credit in mitigation, the defendant had pleaded guilty fully and had made full restitution to the victim, even to the extent that the sum he returned to the victim covers the four charges which have been left on the file.

12.  Under those circumstances, after considering the circumstances of the theft charges, an appropriate starting point for all six charges would be one of 42 months. Having pleaded guilty, the sentence is reduced to 28 months. He has made full restitution. It is a strong mitigating factor and therefore I make a discount of six months, leaving a sentence of 22 months.

13.  In relation to the wounding section 17 charge, it is very serious because there is an intention to inflict really serious injury. The weapon that was used on the victim was a steel rod and could have caused extremely serious injury and maybe even death because the victim was a lady of mature years and she was being hit on the head. But fortunately for both the victim and the defendant it did not cause very serious injury. Also, I must say fortunately for the victim, there were the two men nearby, Mr Chan and Mr Hui, who came do the scene shortly after they heard the victim’s screams. The defendant not only hit the head of the victim, he also caused the victim to kneel on the ground in front of him and squeezed her neck. This was a vicious attack. It was totally unprovoked and the victim was defenceless at the time.

14.  I have read many letters in support of the defendant from very prominent people in society. One thing that has come out of these letters is the fact that the defendant has acted totally out of character and I accept that. A very heart‑rending letter is the one from the victim herself who pleaded for a chance for the defendant. She said she had forgiven the defendant completely. It is very heart-rending because the victim herself is now pleading for a chance for the defendant and it shows her love for the defendant who has treated her in such a heartless way.

15.  I am also taking into account what Mr Lok said, that the defendant did act stupidly and that I should not make any inference at all that the defendant had lured the victim to the back of the car in order to assault her. The excuse that the defendant had given the victim at the time - that he was looking for insurance papers - Mr Lok says he was trying to delay the inevitable of having to tell the victim about the money. Whatever it was, it nevertheless does not minimise the fact that the defendant attacked a defenceless lady of mature years with a weapon which could have caused very serious injury.

16.  I have considered the facts of this case and particularly the facts relating to the wounding section 17 charge. I consider that the facts of the case call for a starting point of 4 years’ imprisonment. The defendant has pleaded guilty and therefore he gets the one-third discount which reduces the sentence to 32 months.

17.  Now, I have to consider the totality principle. On the theft charges, I have sentenced the defendant to a total of 22 months. That means it is 22 months for each of the theft charges which he has committed and that is to be served concurrently. The wounding of 32 months, I would make 22 months of the 32 months consecutive and 10 months concurrent, thus making a total of 44 months.

18.  I take into account, of course, the fact that the victim has pleaded on his behalf for a lenient sentence and that she has fully forgiven him, and also the various letters testifying to the defendant’s background and how he had acted out of character, so I will reduce that sentence by a further four months. The defendant will go to prison for 40 months.