HKSAR v. TSUI CHI CHEUNG

DCCC 829/2019

[2020] HKDC 470

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 829 OF 2019

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Reasons for Sentence

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1.  The defendant has pleaded guilty to nine charges of fraud. He has admitted to defrauding a total of $1,305,000-odd.

2.  The mechanism of the fraud involves persuading his colleagues at work to invest or buy items such as cars and watches from Japan, asking his colleagues to invest in his car business and taking money from them.  No goods were ever delivered or provided.  The defendant also asked some victims to provide money for personal reasons, which were simply untrue, and that money was provided by them.  Some money was refunded to some of the victims.

3.  The defendant was working as a driver in hotels in Hong Kong and the victims were his colleagues.  Full details of the amounts in each fraud or each charge can be seen from the Admitted Facts.  It is not necessary for me to repeat those figures here.  Some monies were repaid, as I have said, but the net overall figure is in the region of $1.3 million-odd.

4.  The defendant admitted the offences in question.  The money was used for gambling after paying off his own credit card debts.  The defendant explained that he was never able to get round to making the investments and purchasing the items, and never in fact had the capital with which to do so.

5.  I have observed these facts do not present a case of breach of trust or authority.  The relationships described in the brief facts were ones of colleagues and friends.  Therefore, the guideline sentence for breach of trust is not applicable to the defendant in this case.

6.  As far as the defendant’s background is concerned, he is aged 39 according to the antecedent statement.  He is a person of clear record, educated to secondary 4 level in Hong Kong.  He was unemployed when he was arrested but had been working as a driver for a hotel.  He is married, resides with his family when at liberty and has two children.

7.  The approach to sentencing should be as follows.  As I have observed, there is no actual guideline for fraud - each case will be determined on its own facts - but one can say that the sentence for a non-breach of trust related fraud or theft should range below that for a case where there is a breach of trust.  In respect of a case involving breach of trust where the overall total of money received or deceived is in the region of 1.3 million, then one would expect the sentence to slightly exceed 3 years’ imprisonment.  For that, one can see HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  So one would expect in this case the overall total sentence to be less than 3 years’ imprisonment.

8.  The approach that is recommended is to determine the appropriate individual sentence on each charge the defendant faces, then adjust the sentences to make them either consecutive or concurrent to arrive at a correct overall total.  And probably for the sake of this exercise, it would be better to indicate to the defendant what the correct overall total should be at this stage and then indicate after that the individual totals for each of the charges.

9.  Having considered the extent and nature of the frauds, it is not by any means a sophisticated fraud, it is one that involves using your colleagues, and probably people who were friends, to provide you with the money you need to fund your daily vices such as gambling.  However, having regard to the fact the defendant made some efforts to pay some of the money back when challenged by the victims and the overall total that was taken, I consider the overall starting point for sentence for all these offences should be one of 33 months’ imprisonment.  After deduction for the defendant’s plea of guilty, that would lead to an overall total of 22 months’ imprisonment.

10.  I will achieve that figure by imposing the following sentences, and these sentences are after deduction of one-third for the defendant’s plea of guilty.  On Charge 1, a sentence of 12 months; Charge 2, a sentence of 14 months; Charge 3, a sentence of 10 months; Charge 4, a sentence of 10 months; Charge 5, a sentence of 10 months; Charge 6, a sentence of 6 months; Charge 7, a sentence of 16 months; Charge 8, a sentence of 12 months; and Charge 9, a sentence of 10 months.  I order that the sentences on Charges 1 through to 7 be served concurrently to each other, Charges 8 and 9 be served concurrently to each other, but 6 months of those will be served consecutively to 1 to 7.  On my calculations, that gives an overall total of 22 months’ imprisonment and that is the sentence I will impose.