HKSAR v. WONG CHI HUNG ROGER

DCCC736/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 736 OF 2012

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Reasons for Sentence

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1. Defendant, you pleaded guilty to a single offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210.

2. You admitted the facts and I convicted you.

3. Briefly, the prosecution case was as follows.

4. Matsuoka Hiroaki (PW1) was a Japanese businessman who travelled frequently between Hong Kong and Japan. 

5. In June of 1994, he came to know you.  You were a property agent at that time.

6. PW1 used you to sell property.  This particular property was completed in October and you received a commission.

From time to time PW1 employed you to handle property transactions.

The purchase of the Tsing Yi premises

7. In June of 1995, PW1 purchased a flat, which was Flat F, 24th Floor, Block 11, Greenfield, Tsing Yi, for $1,850,000.

8. You handled the negotiations on behalf of PW1.  The sale and purchase was registered on 4 August 1995.  Richard Tai & Co. Solicitors acted for PW1.

9. PW1 purchased another flat at Tuen Mun in October of 1996, using you for that purpose.

10. In August 1995, PW1, through you, rented out the Tsing Yi premises for two years.  You agreed to act as agent for PW1 and collect rent and paid PW1 for the flat.

11. There was a similar arrangement in respect of Tuen Mun.

12. The title deeds of both properties were kept at the offices of Richard Tai & Co., but on your advice, were transferred to Alan Wong & Co. Solicitors.

The general power of attorney

13. PW1 was advised by you to execute a general power of attorney to authorise you to collect rents and for the incidental purposes related to the rental of both premises during PW1’s absences from Hong Kong.

14. This was executed on 8 November 1996.

The sale of the Tsing Yi flat by you

15. On 14 October 1996, you came to the offices of Fortune Realty Company at 1 Tsing King Road, Tsing Yi, and told Yu Chit-cheong (PW2) that you had a flat to sell, subject to an existing tenancy.  The asking price was $2 million.

16. It was subsequently purchased by Wong Yiu-ming (PW3) and his wife for that price.

17. You produced the general power of attorney to PW2 to confirm your authority to sell on behalf of PW1.

18. PW3 signed a provisional agreement for sale and purchase of the flat on 23 October 1996, in your presence.

19. The initial deposit was paid by HSBC cheque and this was for $50,000 dated 23 October 1996 and was drawn on PW3 and another person’s current account.

20. On your instructions, it was made payable to Tsang Shuk-ping (PW5) and given to you.  Cheque number 020309 was deposited to that account on that day.

21. PW3 and his wife made two further deposit payments and the balance was paid by a mortgage obtained by them from the Standard Chartered Bank.

The discovery of the sale

22. On 25 September 1997, on a visit to Alan Wong & Co. Solicitors, PW1 discovered the flat had been sold. 

23. Land Registry documents showed the vendor as PW1 and the purchaser as PW3 and his wife.

24. The price was $2 million and the assignment was dated 2 December 1996 and signed, sealed and delivered by you, the lawful attorney of the vendor.  Your identity card number was affixed, which is E726985(8).

25. At no time had PW1 ever authorised you to act as his agent to sell the property.

26. PW1 immediately phoned you and sometime later both of you met in a coffee shop at the Landmark.

27. You admitted selling the flat for $2 million, as you desperately needed money to finance a legal action you claimed to be a party to.

28. You claimed to have given the $2 million to a solicitor acting for you in the civil matter and that you were confident of success and, in five months, you would be able to repay PW1.

29. You asked PW1 not to inform Alan Wong Solicitors, as you would lose your job.  You promised to pay PW1 rent in the meantime.

30. On 28 September 1997, PW1 reported this to the police.

31. PW1 never received the money from the sale to PW3.

Other evidence

32. Bank records show that PW5 was the account holder of HSBC account number 080-4-027415.

33. The initial deposit of $50,000 by PW3 was paid by cheque into this account.

34. On 2 December 1996, records show that $1,795,500 was paid into this account.

35. The cheque was payable to PW1 and issued by Wing Sum Lo & Co. Solicitors.  This firm had acted on behalf of the vendor of the flat in 1996.

36. PW5 was your girlfriend and, with her permission, you had used her bank account to receive payments for your business transactions.  You told her the cheque dated 2 December 1996 was a loan to you from PW1.

37. On 29 June of this year, you were arrested on arrival at the airport.  You exercised your right to remain silent.

38. You admitted to one previous matter in 1989 of a totally dissimilar nature.

39. I should tell you now that I am treating you as a person of clear record.

40. Mr Oderberg, on your behalf, entered mitigation.

41. Firstly, he indicated the facts within the antecedent statement were accepted.

42. He went on to say that in your past and your present personal circumstances, there was nothing of any real significance.

43. You are 50 years of age, educated to university level, employed earning in the region of HK$1.3 million and residing in Canada with your partner.  There are no children of this relationship.  Your partner is here today in court supporting you.

44. I was told that you suffer from diabetes and hypertension, which is common for a man of 50.

45. Mr Oderberg said this was a strange case.  Quite rightly, he accepted on your behalf it was a breach of trust and must be sentenced on that basis.

46. PW1, the victim in this case, is now 75 and was in his 60s when this matter took place.  He often visited Hong Kong in order to invest in property, both here and on the Mainland.

47. He met you in 1994 and you had extensive experience in real estate.  You advised him and assisted him to purchase flats in Hong Kong and commercial property in the Mainland.  PW1’s profits came from the rents, not from capital gains.

48. There developed a trust between the two of you and this led in 1996 to you being granted a general power of attorney, the purpose of which was to allow you to deal with rents, liaise with tenants, collect money and effect repairs.

49. Mr Oderberg submitted that there were issues in this case, to the extent that it was open to argue that the sale of the Tsing Yi property was legal, within the scope of your legal powers under the power of attorney.

50. As I have said, PW1 is now 75.  He is frail and currently at his sick wife’s bedside in Japan.

51. He was prepared to come to Hong Kong to give evidence.

52. However, you, in consultation with your partner, decided to take a course that would spare PW1 the need to come to give evidence: you decided to plead guilty, which, in my opinion, is the right course.

53. Mr Oderberg went on to say that you believed that you were entitled to sell the flat under the power of attorney, but it could not be argued that you were entitled to use the proceeds in the way that you did.

54. I am told that at the time you were in financial need.

55. You did believe the value of the flat would fall and that PW1 would be grateful for the price that you obtained.

56. I was told that it was PW1’s intention to sell it in about 1999.

57. Mr Oderberg told me that your then-girlfriend, who would have given evidence for the prosecution, was a lady of expensive tastes.  You used the money for two purposes:  the first was to buy her jewellery and, the second, a flat which was in his name - not PW1’s - and also two other persons.  It was your intention that the flat would be sold to repay PW1 eventually.

58. In September of 1997, the sale was discovered by PW1 and the two of you discussed the matter.

59. I was told that even at that stage, you had maintained your right to sell the flat.

60. In October of that year, you left Hong Kong for Canada, where you have been ever since, having first obtained permission to land there in 1992.

61. By this time, the police had been informed.

62. You met your partner in Canada and you have resided and worked there ever since.

63. You have been involved in properties since your early 20s, dealing with some three to four hundred transactions.

64. I am told - and I have no reason to doubt this - that this is the first time that you have dealt dishonestly with property; apart from this matter, that you have lived an honest life.

65. I am told also PW1 attempted unsuccessfully to recover his money by legal proceedings in respect of the flat owned by your then-girlfriend and others, and her jewellery.

66. However, he had to abandon these actions.

67. You returned to Hong Kong after some 15 years in Canada, hoping this matter had been sorted out and unaware of the police investigation.

68. Mr Oderberg pointed to your good character and your plea of guilty.

69. Realistically, he accepted that this matter was distasteful and I agree with that.

70. He referred me to four sentencing authorities and said this offence fell within the band of 3 to 5 years’ after trial, which had been amended from 3 to 4 years’.

71. The cases brought to my attention were:  

(1) HKSAR v Yeung Chiu, CACC105/2009;

(2) HKSAR v Cheung Mee Kiu, CACC99/2006;

(3) HKSAR v Luk Yiu-kwong John, CACC122/2009;

(4) HKSAR v Ng Tik Ki Chaneki, CACC68/2011.

72. Mr Oderberg made most references to the fourth authority, that is, HKSAR v Ng.  That case involved 1.6 million, but the circumstances, he submitted, were more serious and that involved numerous payments over an extended period of time, and threats and trickery were employed.

73. He asked me to take the view that this present case took place on one occasion and that there were no threats or trickery employed.

74. In that case, my colleague imposed 4 years as a starting point, but of course, it was 4 years after a trial.

75. Additionally, Mr Oderberg indicated that it was your intention and wish to repay all the money when you could and that, as a gesture of good faith, you offered an initial payment of $500,000 to be taken from your bail.  Quite properly, he suggested I should give you credit for that partial repayment.

76. The thrust of his submissions were that the sentence after discount should not be more than 3 years’.

77. As you will recall, I indicated yesterday that that was my intention.

78. I turn now to the sentence itself.

79. This is, and I agree with Mr Oderberg, a distasteful offence.  It is a profound breach of trust by you.  You took advantage of the faith that was placed in you by PW1.

80. I accept that there is, perhaps, a technical but rather tenuous legal argument that the sale of the flat was perhaps within the scope of the power of attorney granted to you.

81. However, the dissipation of the proceeds on jewellery and a flat for your girlfriend were most certainly not within that power.

82. That you did nothing to ensure the flat was indeed sold to recompense PW1 is self-evident from your voluntary exile to Canada.

83. Your pious hope that matters had been rectified in your absence of 15 years is, to say the least, unconvincing and naïve.

84. However, there are some extenuating circumstances in this case:

(1) it is in your favour that you spared the frail
75-year-old and with an ailing wife, the necessity of coming to give evidence;

(2) also, I am prepared to accept it was a single act of dishonesty, although the consequences have lasted for some 15 years. As I previously said, I am treating you as a person of good character, apart from this lapse;

(3) it is also in your favour that your partner appears to be standing by you in this time of trouble;

(4) you are deserving of credit for your voluntary repayment of $500,000 from bail and you shall have the benefit of that. By way of comment and given your age, it is difficult to see how you will ever repay the balance, no matter what your intentions may be.

85. Taking all matters into account and noting the sentencing authorities provided to me, I adopt as a starting point in this case 3½ years - that is, 42 months.

86. That, of course, will be reduced to 28 months for your plea of guilty.

87. You will go to prison for 28 months.

88. I also direct that the bail money of $500,000 be taken and repaid to PW1 by way of partial compensation.