HKSAR v. LIU WAI KOON AND ANOTHER

DCCC 1014/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1014 OF 2013

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REASONS FOR SENTENCE

1.  The defendants stand convicted after trial of one charge of fraud, contrary to section 16A of the Theft Ordinance, Chapter 210.

2.  Full particulars of the offence are set out in my verdict delivered on the 27 May 2014.  In summary in 1964 Mr Suen Kwai Lin acquired two-thirds share of six lots of land in Demarcation District (D.D.) No 90, namely Section B of Lot No. 751 and Lot Nos. 752, 753, 778, 780 and 781.  On the 24 June 1967 Mr Suen Kwai Lin passed away intestate.

3.  No letters of administration were taken out until December 2010 when administration of the estate was granted to Mr Suen Fu Wai, the eldest surviving son of sixteen children entitled to the estate of their late father.  In the meantime in 1994 the Government had resumed one of the six lots, Lot No. 752.

4.  Sometime towards the end of 2009 and the beginning of 2010 Mr Wong Hon Sun and Mr Ho Yuet Ming met D2, who was working in a property agency.  Mr Wong and Mr Ho expressed their wish to purchase the remaining five lots.  Around December 2010 D2 said he had been able to contact the landowner and arranged a meeting with Mr Wong and Mr Ho.  At that meeting D2 introduced D1 to Mr Wong and Mr Ho as someone who knew the landowner and was therefore able to act as the agent of the landowner in the sale of the five lots. 

5.  D1 produced an authorisation (exhibit P1) stating under remarks that he was authorised by Mr Suen to deal with the sale of the five lots.  On the 17 January 2011 Mr Wong and Mr Ho through their company Power Place Development Limited (“Power Place”) entered into a Provisional Agreement for Sale and Purchase (exhibit P2) of the two-thirds share of the five lots. 

6.  D1 signed the Provisional Agreement for Sale and Purchase on behalf of the vendor.  D2, a licensed sales person with Uni-Power Property Consultants Limited (“Uni-Power”), a licensed estate agency, who were acting as agent for both vendor and purchaser in the sale and purchase of the five lots, signed on behalf of Uni-Power.

7.  A deposit of $500,000 was paid by cheque made payable to D1.  Completion was set for the 30 April 2011 however no completion took place.  Subsequently the deposit was refunded together with $150,000 compensation.

8.  Mr Suen only authorised D1 to deal with the inheritance of the estate of his late father and to negotiate with the Government for compensation for the resumed Lot No. 752.  Mr Suen never gave written authority to D1 to sell the five lots. When Mr Suen signed the authorisation produced by D1 to Mr Wong and Mr Ho the remarks authorising D1 to sell the five lots were not typed in. 

9.  Mr Suen was not told of the price or of the sale to Power Place; never authorised the sale to Power Place; did not sign the Provisional Agreement for Sale and Purchase, his signature on the agreement being a forgery; and never met Mr Wong or Mr Ho.

10.  In passing sentence I have carefully considered everything said by Mr Wong on behalf of D1 and by Mr Lam on behalf of D2 together with the letters of mitigation which show both defendants are held in high regard by their local community and that they have served their community as particularised in those letters. 

11.  Both defendants cannot be given credit for clear records both having seven previous convictions including offences of dishonesty, although neither defendant has served a term of imprisonment.  I do however take into account that in respect of D1 the offences of dishonesty were 25-30 years ago and that his last and only appearance in court since that time was in 2006 for careless driving and drink driving.  

12.  In respect of D2 he was convicted of robbery 35 years ago. Between 1984 and 1996 D2 appeared in court for operating gambling establishments, bookmaking and aiding and abetting the management of a vice establishment.  D2’s last appearance in court was 9 years ago for gambling in a gambling establishment. 

13.  The records of the defendants show that they have both tried to rehabilitate themselves as they have grown up which is also borne out by the letters detailing their service to the community where they live.

14.  D2 however did not in his application for a salesperson’s licence disclose, as he was required to do, his conviction for robbery.  Had he done so an enquiry would have been held as to whether he was a fit and proper person to hold a licence. Although a question mark hangs over whether D2 would have been granted a licence had he disclosed his conviction I am satisfied from the information provided to court today that it is by no means certain he would not have been granted a licence and therefore this should not be taken into account in passing sentence.

15.  Mr Lam asks for a suspended sentence.  In my view although Mr Wong and Mr Ho ultimately suffered no loss having been refunded the deposit and paid $150,000 compensation and Mr Suen also suffered no loss, this nevertheless remains a very serious fraud. 

16.  D1 and D2 tried to sell the five lots when they had no authorisation from Mr Suen to do so.  After Mr Suen signed the authorisation the remarks were added purporting to authorise D1 to sell the five lots on behalf of Mr Suen.  Mr Suen’s signature was forged on the Provisional Agreement for Sale and Purchase.

17.  D2 failed in his duty as a sales person to protect and promote the interests of his clients by failing to inform Mr Suen that Mr Wong and Mr Ho wished to buy the five lots and by not revealing the true situation to Mr Wong and Mr Ho. 

18.  D1 clearly stood to benefit financially, not only from payment of the deposit of $500,000 but also by payment of a consultant fee calculated at $780,000 (see exhibit P3).  Whilst there is no evidence how much of this would be given to D2 both defendants playing an important and essential role in the fraud, it is contrary to common sense to suggest D2 would have received nothing.  Also Uni-Power was to be paid $52,000 commission by the purchaser.

19.  Although the roles were different the fraud may not have been committed without the collaboration of the defendants.  I will therefore sentence the defendants in the same way.

20.  In my view to reflect the seriousness of the fraud a starting point after trial of 3 years and 6 months imprisonment is appropriate.  Taking into account the deposit was refunded and $150,000 compensation paid with no loss suffered by anyone I reduce the sentence by 6 months to 3 years imprisonment. 

21.  I am satisfied there are no exceptional circumstances warranting suspension of the sentence.  Both defendants are sentenced to 3 years imprisonment.