HKSAR v. FUNG CHUN YIN, MICHAEL

DCCC 356/2022

[2022] HKDC 789

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 356 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant is convicted on his own plea and agreement to Summary of Facts to a charge of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210.

Facts

2.  In June 2020, the defendant contacted the victim whom he got acquainted via online game and offered him an opportunity to invest in stocks and foreign exchange.  The defendant advised the victim to open an investment account and promised him high returns.  The victim agreed, and between August and October 2020, he sent the defendant a total of HK$573,913 via direct transfer or by cash deposit to the defendant’s bank account with Standard Chartered Bank.  Subsequently, the victim discovered that he was deceived as he never received any return from the defendant.  The case was reported to police in October 2020. 

3.  Upon arrest and being cautioned, the defendant admitted that as he was suffering from financial difficulty, he therefore devised a scheme and asked the victim to transfer money to his account, fraudulently claiming that he would open an investment account for the victim when, in fact, he spent all the money sent to him from the victim for his personal use.

Criminal Record

4.  The defendant has a clear record.

Mitigation

5.  The defendant is now aged 27.  He was born in Hong Kong and received education up to Form 3. 

6.  His parents are in their 50’s.  As they divorced when the defendant was very young, the defendant was raised solely by his mother and has seldom contact with his natural father.  The defendant’s mother remarried when he was in Primary 3, and she divorced again when he was in Primary 6.

7.  It was said that the defendant had a miserable childhood during the remarriage period of the mother.  He was subject to cruelty from his stepfather, and his relationship with his mother and the stepsister were not intimate.

8.  It was said that after dropping out from school, the defendant had been in various jobs.  At the material times, shortly before the offence, he met a friend whom he knew on the internet.  The friend introduced him to leverage investment and he borrowed about 1 million dollars from others for the investment.  Loss ensued and he was in serious financial difficulty.  Debt collector poured red oil outside his flat.  His mother then drove him away from home.  He was also unemployed and due to greediness, he committed the present offence foolishly.

9.  During the detained period, the defendant was deeply remorseful as to what he has done, and he understands that he would on release adopt a down-to-earth attitude and work hard to earn his living.  While in custody, he maintains a close relationship with his mother and the girlfriend.  With the support of these relatives, he is confident to turn a new leaf after release from prison.

10.  Defence counsel suggested the court to adopt the sentencing guideline in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, which is a case involving breach of trust.  She also asked the court to adopt a sentencing starting point of 2 years’ imprisonment.  She urged this court to give the defendant one-third sentencing discount by reason of the defendant’s guilty plea.

11.  Mitigation letters from the defendant, his mother, grandmother, girlfriend and friend were all submitted to this court for consideration.

Discussion

12.  This court has carefully considered all that was said on behalf of the defendant, the mitigation letters as well as the legal authorities submitted. 

13.  A person convicted of this offence on indictment is liable to 10 years’ imprisonment.  There is no sentencing tariff for this offence and each case depends on its own facts. 

14.  Although the defence counsel has referred this court to a number of legal authorities, they all either concern the breach of trust or credit card fraud, and are not useful reference materials for the present case.  The relationship between the defendant and the victim here does not give rise to the “trust” present in the cases cited. 

15.  The defendant committed the offence over a period of 2-odd months.  This is not a one-off transaction case.  The amount involved is quite substantial, in the sum of HK$573,913. 

16.  Committing the offence by reason of financial difficulty, especially when it involves such an amount of money, is not a valid mitigating factor.

17.  The defendant has a clear record, and this is the first time he has transgressed the law. 

18.  The letters in mitigation show the defendant’s remorse.  They said that the defendant committed the present offence due to adverse peer influence and they are supportive of the defendant in rehabilitation on his release from prison.

19.  After considering all that was said on behalf of the defendant and the circumstances under which the defendant committed the present offence, the appropriate sentencing starting point is 2 years’ imprisonment.  Had it been a case involving breach of trust, the appropriate sentencing starting point would be no less than 2 years and 6 months’ imprisonment.

20.  The defendant has pleaded guilty and by reason of that, he is entitled to full one-third sentencing discount.  Accordingly, he is sentenced to 16 months’ imprisonment for this charge.

21.  In the absence of exceptional circumstances, the court does not see it fit to suspend the sentence.