HKSAR v. KIM BYUNG-LUCK

DCCC217/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 217 OF 2009

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Reasons for Sentence

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1.  The defendant has been convicted of four offences after trial.

(Translation of mitigation letter read out)

2.  The defendant has been convicted of the four offences involving the evasion of liability by deception and using a copy of a false instrument, and the facts upon which the defendant is convicted clearly are set out in the original verdict, and I do not propose to rehearse those now.

3.  Before sentencing the defendant, I obtained a background report upon him, and it was while that was being obtained that the details of PW2’s previous conviction was brought to the court’s attention, and the proceedings since then led to quite a lengthy delay in the defendant’s sentence.  It is certainly something I will consider when deciding on the appropriate sentence. 

4.  I have been given details of the defendant’s background and also received a letter about him.  The defendant is a man of clear record.  He is a Korean national; he is a man of clear record.  He has lived in Hong Kong for 15 years, so I understand from one of the letters that has been written on his behalf.  He lives with a lady described as his co-habitant or wife, and they have three young children. 

5.  Now, the defendant is a man who has obtained a university education in business management in Korea.  He originally became a manager in trading fabrics and garments in Korea and then became a manager in trading business in Hong Kong before he took up his position at AMS Worldwide(World?) International and has been trading in garments and electronic items since about 2001 and maintained a good income from that.

6.  The three daughters were all born in Hong Kong; 9, 3 and 1 at the time of the report, so it is a little bit about a year older now.  And I understand they have returned to Korea from the background report.

7.  The defendant is a businessman.  He shoulders the maintenance for his parents and his wife and children in Korea.  He is described by his co-habitant as a frank person.

8.  Now, I turn to the appropriate sentence for these offences, bearing in mind the defendant’s clear record and the history of this matter.  I am informed by the prosecution that the lady called Miss Bak(?), who appears to be the person with the ultimate responsibility for these offences, received a sentence of 18 months’ imprisonment in Korea. 

9.  Now, of course I am not in any way bound by what a Korean court has done in relation to these matters.  However, one cannot ignore there the sentence that they imposed.  I consider it does certainly place an upper limit on the sentence that this court should consider in terms of imposing on this defendant.  The defendant’s role in this appears to have been assisting in an evasion of liability by deception and also using false instruments to enhance that or to achieve that.

10.  Now, turning to what the appropriate sentence on these four charges and it does seem these four charges are fairly closely interrelated, now bearing in mind Miss Bak’s sentence, I would consider taking an overall position on the sentencing of this defendant, and I consider this defendant’s sentence as an overall, the total sentence should be at 15 months’ imprisonment, having regard to the level of his responsibility and also the value of the goods.

11.  Of course, there are other matters I need to consider in terms of the sentencing of this defendant.  One is that the offences themselves occurred in around January of 2007, which is over three and a half years now.  And, secondly, through no fault of this defendant, his sentence has been delayed from September last year to July this year.  The delays have occurred in bringing PW2 to court and hearing the evidence but, nevertheless, the defendant himself has had to live with this over his head for that period of time and also involved him in financial problems arising from maintaining his bail and also an inability to travel.  These are all factors I consider in what the overall total sentence should be.

12.  I consider that the factors I have set out, which is the delay in sentencing and the delay in the matters coming to court and the age of the offence means further that I will deduct that sentence of 15 months’ imprisonment by 3 months.  I consider that the overall total sentence should be one of 12 months’ imprisonment.  I will achieve that by ordering a sentence of 12 months’ imprisonment onto each charge, to be served concurrently.  The total sentence is 12 months’ imprisonment.