HKSAR v. KONG HON YUI, KEVIN

 DCCC84/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 84 OF 2008

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 Reasons for Sentence

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1.  The defendant has been convicted after trial of one offence of conspiracy to deal with the proceeds of an indictable offence and one offence of conspiracy to defraud.  The factual background can be found in the verdict delivered this morning.

2.  Those facts relevant to sentence are that a total of $10,978,050 was gained from these conspiracies.  Effectively charge 1 deals with the moneys obtained in the conspiracy in charge 2, the proceeds of the mortgage frauds being funnelled into the Add Magic Hang Seng Bank account thereafter being removed by PW31.  From my findings, the defendant himself can be seen to have himself received almost $1.2 million in March of 2006 and $450,000 in May of that year.  Clearly, receipts of such large amounts of money show the defendant was a major recipient of the frauds, clearly one of the prime movers and planners of these offences.  I also note the defendant was acting as a solicitor in the course of these transactions. 

3.  The defendant is himself a man of clear record.  He is in many ways a self-made man.  He was an immigration officer and by the dint of his own efforts became a solicitor.  He established the firm of Kong & Associates, taking over and funding a firm from which the partner has absconded.  Undoubtedly this put him in a difficult financial position.  He met the firm’s liabilities, paid clients and staff and certainly from that earned the loyalty of those he worked with.  The commission of these offences by the defendant is a tragedy for both himself and his family.  His family is respectable.  He has a wife and four year old son upon whom the defendant’s imprisonment will be a difficult burden to bear. 

4.  The mitigating factors that I bear in mind are as follows:-

It has taken three years for the defendant to come to trial.  For some part of that period up to December 2007, the defendant was himself released from bail.  I note in respect of the money laundering, charge 1, that there is no international element in that offence.  Also, the 1st and 2nd charges are intimately connected, charge 1 involving the laundering and the proceeds of the crime in charge 2.  Nevertheless, these are serious offences for which the defendant, on my findings, has received substantial financial benefit.  They were conducted over a number of months involving themselves the use of large amounts of false documentation and the possession and use of forged identity cards.  The frauds themselves netted a considerable sum of money.

5.  Taking these factors into account, I order that the following sentences be imposed:-

On the 1st charge, I will take a starting point for sentence of 5 years, 9 months.  On the 2nd charge, I will again take a starting point for sentence of 5 years, 3 months.   I say a starting point because I did note earlier that there is three year wait for trial and there has been in this case, I find, a determined effort by the defendant or those advising him to deal with this case in an economical  fashion.  There has been considerable agreement on facts which have enabled the case to be brought in within time, although there were other factors which led to delay but they are not attributable to the defendant or his advisors.

6.  Now these two factors should be, I find, represented in the sentences and I will discount the overall total sentence on each offence by three months for each factor.  That will lead to a total sentence on charge 1 of 5 years, 6 months and on charge 2, 5 years.

7.  These offences, as I have noted, are to a considerable degree similar and represent the same criminal enterprise but to a certain extent they do represent separate acts of criminality.  Because of that I will order for 6 months of the 2nd charge be served consecutively to the sentence on the 1st charge and the balance is served concurrently.  This leads to an overall total sentence for both offences of 6 years’ imprisonment.  I consider that to be the correct overall total and that is the sentence that will be imposed.